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1988_86-1904

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Larry Youngblood was convicted by a Pima County, Arizona, jury of child molestation, sexual assault, and kidnaping. The Arizona Court of Appeals reversed his conviction on the ground that the State had failed to preserve semen samples from the victim's body and clothing. 153 Ariz. 50, 734 P.2d 592 (1986). We granted certiorari to consider the extent to which the Due Process Clause of the Federal Constitution requires the State to preserve evidentiary material that might be useful to a criminal defendant.On October 29, 1983, David L., a 10-year-old boy, attended a church service with his mother. After he left the service at about 9:30 p.m., the boy went to a carnival behind the church, where he was abducted by a middle-aged man of medium height and weight. The assailant drove the boy to a secluded area near a ravine and molested him. He then took the boy to an unidentified, sparsely furnished house where he sodomized the boy four times. Afterwards, the assailant tied the boy up while he went outside to start his car. Once the assailant started the car, albeit with some difficulty, he returned to the house and again sodomized the boy. The assailant then sent the boy to the bathroom to wash up before he returned him to the carnival. He threatened to kill the boy if he told anyone about the attack. The entire ordeal lasted about 1 1/2 hours.After the boy made his way home, his mother took him to Kino Hospital. At the hospital, a physician treated the boy for rectal injuries. The physician also used a "sexual assault kit" to collect evidence of the attack. The Tucson Police Department Page 488 U. S. 53 provided such kits to all hospitals in Pima County for use in sexual assault cases. Under standard procedure, the victim of a sexual assault was taken to a hospital, where a physician used the kit to collect evidence. The kit included paper to collect saliva samples, a tube for obtaining a blood sample, microscopic slides for making smears, a set of Q-tip like swabs, and a medical examination report. Here, the physician used the swab to collect samples from the boy's rectum and mouth. He then made a microscopic slide of the samples. The doctor also obtained samples of the boy's saliva, blood, and hair. The physician did not examine the samples at any time. The police placed the kit in a secure refrigerator at the police station. At the hospital, the police also collected the boy's underwear and T-shirt. This clothing was not refrigerated or frozen.Nine days after the attack, on November 7, 1983, the police asked the boy to pick out his assailant from a photographic lineup. The boy identified respondent as the assailant. Respondent was not located by the police until four weeks later; he was arrested on December 9, 1983.On November 8, 1983, Edward Heller, a police criminologist, examined the sexual assault kit. He testified that he followed standard department procedure, which was to examine the slides and determine whether sexual contact had occurred. After he determined that such contact had occurred, the criminologist did not perform any other tests, although he placed the assault kit back in the refrigerator. He testified that tests to identify blood group substances were not routinely conducted during the initial examination of an assault kit, and in only about half of all cases in any event. He did not test the clothing at this time.Respondent was indicted on charges of child molestation, sexual assault, and kidnaping. The State moved to compel respondent to provide blood and saliva samples for comparison with the material gathered through the use of the sexual assault kit, but the trial court denied the motion on the Page 488 U. S. 54 ground that the State had not obtained a sufficiently large semen sample to make a valid comparison. The prosecutor then asked the State's criminologist to perform an ABO blood group test on the rectal swab sample in an attempt to ascertain the blood type of the boy's assailant. This test failed to detect any blood group substances in the sample.In January, 1985, the police criminologist examined the boy's clothing for the first time. He found one semen stain on the boy's underwear and another on the rear of his T-shirt. The criminologist tried to obtain blood group substances from both stains using the ABO technique, but was unsuccessful. He also performed a P-30 protein molecule test on the stains, which indicated that only a small quantity of semen was present on the clothing; it was inconclusive as to the assailant's identity. The Tucson Police Department had just begun using this test, which was then used in slightly more than half of the crime laboratories in the country.Respondent's principal defense at trial was that the boy had erred in identifying him as the perpetrator of the crime. In this connection, both a criminologist for the State and an expert witness for respondent testified as to what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy's clothing had the clothing been properly refrigerated. The court instructed the jury that, if they found the State had destroyed or lost evidence, they might "infer that the true fact is against the State's interest." 10 Tr. 90.The jury found respondent guilty as charged, but the Arizona Court of Appeals reversed the judgment of conviction. It stated that"'when identity is an issue at trial and the police permit the destruction of evidence that could eliminate the defendant as the perpetrator, such loss is material to the defense and is a denial of due process.'"153 Ariz. at 54, 734 P.2d at 596, quoting State v. Escalante, 153 Ariz. 55, 61, 734 P.2d 597, 603 (App.1986). The Court of Appeals Page 488 U. S. 55 concluded on the basis of the expert testimony at trial that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated respondent. The Court of Appeals reached this conclusion even though it did "not imply any bad faith on the part of the State." 153 Ariz. at 54, 734 P.2d at 596. The Supreme Court of Arizona denied the State's petition for review, and we granted certiorari. 485 U.S. 903 (1988). We now reverse.Decision of this case requires us to again consider "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U. S. 858, 458 U. S. 867 (1982). In Brady v. Maryland, 373 U. S. 83 (1963), we held"that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."Id. at 373 U. S. 87. In United States v. Agurs, 427 U. S. 97 (1976), we held that the prosecution had a duty to disclose some evidence of this description even though no requests were made for it, but at the same time we rejected the notion that a "prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel." Id. at 427 U. S. 111; see also Moore v. Illinois, 408 U. S. 786, 408 U. S. 795 (1972) ("We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case").There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boy's examination at the hospital. The State provided respondent's expert with the laboratory reports and notes prepared by the police criminologist, and respondent's expert had access to the swab and to the clothing. Page 488 U. S. 56If respondent is to prevail on federal constitutional grounds, then, it must be because of some constitutional duty over and above that imposed by cases such as Brady and Agurs. Our most recent decision in this area of the law, California v. Trombetta, 467 U. S. 479 (1984), arose out of a drunk driving prosecution in which the State had introduced test results indicating the concentration of alcohol in the blood of two motorists. The defendants sought to suppress the test results on the ground that the State had failed to preserve the breath samples used in the test. We rejected this argument for several reasons: first, "the officers here were acting in good faith and in accord with their normal practice,'" id. at 467 U. S. 488, quoting Killian v. United States, 368 U. S. 231, 368 U. S. 242 (1961); second, in the light of the procedures actually used, the chances that preserved samples would have exculpated the defendants were slim, 467 U.S. at 467 U. S. 489; and, third, even if the samples might have shown inaccuracy in the tests, the defendants had "alternative means of demonstrating their innocence." Id. at 467 U. S. 490. In the present case, the likelihood that the preserved materials would have enabled the defendant to exonerate himself appears to be greater than it was in Trombetta, but here, unlike in Trombetta, the State did not attempt to make any use of the materials in its own case in chief. * Page 488 U. S. 57Our decisions in related areas have stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government. In United States v. Marion, 404 U. S. 307 (1971), we said that"[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them."Id. at 404 U. S. 325; see also United States v. Lovasco, 431 U. S. 783, 431 U. S. 790 (1977). Similarly, in United States v. Valenzuela-Bernal, supra, we considered whether the Government's deportation of two witnesses who were illegal aliens violated due process. We held that the prompt deportation of the witnesses was justified "upon the Executive's good faith determination that they possess no evidence favorable to the defendant in a criminal prosecution." 458 U.S. at 458 U. S. 872.The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. Part of the reason for the difference in treatment is found in the observation made by the Court in Trombetta, supra, at 486, that"[w]henever potentially exculpatory Page 488 U. S. 58 evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed."Part of it stems from our unwillingness to read the "fundamental fairness" requirement of the Due Process Clause, see Lisenba v. California, 314 U. S. 219, 314 U. S. 236 (1941), as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves, by their conduct, indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.In this case, the police collected the rectal swab and clothing on the night of the crime; respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence -- such as it was -- was made available to respondent's expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion -- and we agree -- that there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause.The Arizona Court of Appeals also referred somewhat obliquely to the State's "inability to quantitatively test" certain semen samples with the newer P-30 test. 153 Ariz. at 54, 734 P.2d at 596. If the court meant by this statement Page 488 U. S. 59 that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here is no different than a prosecution for drunk driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalizer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.The judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtArizona v. Youngblood, 488 U.S. 51 (1988)Arizona v. YoungbloodNo. 86-1904Argued October 11, 1988Decided November 29, 1988488 U.S. 51SyllabusThe victim, a 10-year-old boy, was molested and sodomized by a middle-aged man for 1 1/2 hours. After the assault, the boy was taken to a hospital, where a physician used a swab from a "sexual assault kit" to collect semen samples from the boy's rectum. The police also collected the boy's clothing, which they failed to refrigerate. A police criminologist later performed some tests on the rectal swab and the boy's clothing, but he was unable to obtain information about the identity of the boy's assailant. At trial, expert witnesses testified that respondent might have been completely exonerated by timely performance of tests on properly preserved semen samples. Respondent was convicted of child molestation, sexual assault, and kidnaping in an Arizona state court. The Arizona Court of Appeals reversed the conviction on the ground that the State had breached a constitutional duty to preserve the semen samples from the victim's body and clothing.Held: The Due Process Clause did not require the State to preserve the semen samples even though the samples might have been useful to respondent. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Here, the police's failure to refrigerate the victim's clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence -- such as it was -- was made available to respondent's expert, who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion -- and this Court agrees -- that there was no suggestion of bad faith on the part of the police. Moreover, the Due Process Clause was not violated because the State failed to perform a newer test on the semen samples. The police do not have a constitutional duty to perform any particular tests. Pp. 488 U. S. 55-59.153 Ariz. 50, 734 P.2d 592, reversed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 488 U. S. 59. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 488 U. S. 61. Page 488 U. S. 52

1966_136

MR. JUSTICE WHITE delivered the opinion of the Court.This case presents still another development in the efforts of the State of Florida to apportion its legislature in accordance with the requirements of the Federal Constitution. There have been previous chapters in this story. The litigation began in 1962. On June 22, 1964, in Swann v. Adams, 378 U. S. 553, we reversed the judgment of the three-judge District Court upholding the then-current legislative apportionment in Florida and remanded the case for further proceedings, consistent with the Court's opinion in Reynolds v. Sims, 377 U. S. 533, and its companion cases. The District Court then deferred further action until the conclusion of the legislative session which convened on April 6, 1965. The Page 385 U. S. 442 legislature proceeded to reapportion the State on June 29, 1965. The District Court forthwith held the new plan failed to meet the requirements of the Fourteenth Amendment, but approved the plan on an interim basis, limiting it to the period ending 60 days after the adjournment of the 1967 session of the Florida Legislature. This Court, finding no warrant for perpetuating what all conceded was an unconstitutional apportionment for another three years, reversed the judgment and remanded the case to the District Court so that a valid reapportionment plan would be made effective for the 1966 elections. Swann v. Adams, 383 U. S. 210. The Florida Legislature again acted on the matter in March, 1966, by adopting still another reapportionment plan which the appellants promptly attacked in the District Court.The new plan provides for 48 senators and 117 representatives, and includes what, in effect, are multimember districts for each house. The senate districts range from 87,595 to 114,053 in population per senator, or from 15.09% overrepresented to 10.56% underrepresented. The ratio between the largest and the smallest district is thus 1.30 to 1. The deviation from the average population per senator is greater than 15% in one senatorial district, is greater than 14% in five more districts, and is more than 10% in still six other districts. Approximately 25% of the State's population living in one quarter of the total number of senatorial districts is underrepresented or overrepresented by at least 10%. The minimum percentage of persons that could elect a majority of 25 senators is 48.38%.In the house, the population per representative ranges from 34,584 to 48,785, or from 18.28% overrepresented to 15.27% underrepresented. The ratio between the largest and the smallest representative district is 1.41 to 1. Two districts vary from the norm by more than 18%, Page 385 U. S. 443 and another by more than 15%, these three districts having seven of the 117 representatives. Ten other districts with 22 representatives vary from the norm by more than 10%. There is thus a deviation of more than 10% in districts which elect 29 of the 117 representatives; 24.35% of the State's population lives in these districts. The minimum percentage of persons that could elect a majority of 59 representatives is 47.79%.The District Court recognized that "apportionment must be substantially on a population basis" but that "[m]athematical exactness or precision is not required." It went on to hold"[s]uch departures as there are from the ideal are not sufficient in number or great enough in percentages to require an upsetting of the legislative plan. . . . [W]hat deviation there is does not discriminate to any great extent against any section of the state, or against either rural or urban interests."258 F. Supp. 819, 826, 827. Accordingly, the plan was held constitutional.The State would have us dismiss this case for lack of standing on the part of appellants to maintain this appeal because appellants are from Dade County, Florida, which appellants concede has received constitutional treatment under the legislative plan. Appellants, however, had before the District Court their own plan which would have accorded different treatment to Dade County in some respects as compared with the legislative plan, and the alternative plan was rejected by the District Court. Moreover, the District Court has apparently consistently denied intervention to other plaintiffs, seemingly treating the appellants as representing other citizens in the State. The challenge to standing cannot succeed.We reverse for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various Page 385 U. S. 444 legislative districts with respect to both the senate and house of representatives. Reynolds v. Sims, supra, recognized that mathematical exactness is not required in state apportionment plans. De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de minimis, and none of our cases suggests that differences of this magnitude will be approved without a satisfactory explanation grounded on acceptable state policy. On the contrary, the Reynolds opinion limited the allowable deviations to those minor variations which "are based on legitimate considerations incident to the effectuation of a rational state policy." 377 U. S. 377 U.S. 533, 377 U.S. 579. Thus, that opinion went on to indicate that variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts, or the recognition of natural or historical boundary lines. Likewise, in Roman v. Sincock, 377 U. S. 695, the Court stated that the Constitution permits "such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination."The State relies on Forty-fourth General Assembly of Colorado v. Lucas, 379 U. S. 693; Burnette v. Davis, 382 U. S. 42; and Harrison v. Schaefer, 383 U. S. 269, which were per curiam affirmances of lower court judgments in reapportionment cases. The State suggests that the plans approved in those cases involved variations in magnitude equal to or greater than those revealed by the Florida apportionment, and, for that reason, the judgment here should be affirmed. But in none of these cases was the issue of the validity of the differences in population between various legislative districts either raised or ruled upon in this Court. There was no occasion to explore whether or not there was ample justification for the Page 385 U. S. 445 challenged variations. And in Lucas v. Forty-fourth General Assembly of State of Colorado, 377 U. S. 713, 377 U. S. 727, 377 U. S. 734-735, the Court expressly reserved decision upon the validity of a variance ratio of 1.7 to 1. In any event, 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. "What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case." Reynolds v. Sims, 377 U. S. 533, 377 U.S. 578.As this case comes to us, we have no alternative but to reverse. The District Court made no attempt to explain or justify the many variations among the legislative districts. As for the State, all it suggested in either the lower court or here is that its plan comes as close as "practical" to complete population equality and that the State was attempting to follow congressional district lines. There was, however, no attempt to justify any particular deviations, even the larger ones, with respect to either of these considerations. Moreover, the State's brief states only that the legislature followed "in most instances" the congressional boundaries, and, with respect to "practicality," it seems quite obvious that the State could have come much closer to providing districts of equal population than it did. The appellants themselves placed before the court their own plan which revealed much smaller variations between the districts than did the plan approved by the District Court. Furthermore, appellants suggested to the District Court specific amendments to the legislative plan which, if they had been accepted, would have measurably reduced the population differences between many of the districts. Appellants' own plan and their suggested amendments to the legislative plan might have been infirm in other respects but they do demonstrate that a closer approximation to equally populated districts was a feasible Page 385 U. S. 446 undertaking. The State, with admirable candor, states that it offered no evidence in the District Court to explain the challenged variations with respect to either the house or the senate. In its view, however, the plan should be approved on the record as it is.We think the better view is that taken by the three-judge court in Maryland which disapproved a legislative plan involving an overrepresentation of 14.90% and an underrepresentation of 14.38% because, as Judge Sobeloff said, there was "no showing in this case that the difference of one-third is unavoidable or justified upon any legally acceptable ground." Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731, 733. Compare League of Nebraska Municipalities v. Marsh, 24 F. Supp. 357, disapproving a ratio of 1.6 to 1 between the smallest and the largest district absent satisfactory explanation by the State, and Paulson v. Meier, 246 F. Supp. 36, which found a ratio between the smallest and largest district of 1.39 to 1 to be unjustified on the basis offered by the State.The appellants complain of other aspects of the plan besides unequally populated legislative districts. Under the new statute, three senators were not required to run for election in 1966, but were allowed to finish their present terms expiring in 1968. These three senators, as the District Court noted, were elected in districts that are identical in territory to their districts under the legislative plan. Also, one senate and six house seats were subject to residency requirements. The District Court found no invidious discrimination in these aspects of the plan. Appellants also claim that the legislative plan discriminates invidiously by underrepresenting the populous urban counties and by overrepresenting the sparsely settled rural counties in both houses. The court below found that"what deviation there is does not Page 385 U. S. 447 discriminate to any great extent against any section of the state or against either rural or urban interests."258 F. Supp. 819, 827. In the light of our disposition of this case, however, we need not reach and decide any of these additional issues, although we note that Reynolds v. Sims indicates the constitutional impropriety of maintaining deviations from the equal population principle in deference to area and economic or other group interests. 377 U. S. 377 U.S. 533, 377 U.S. 579-580.Reversed

U.S. Supreme CourtSwann v. Adams, 385 U.S. 440 (1967)Swann v. AdamsNo. 136Argued December 6, 1966Decided January 9, 1967385 U.S. 440SyllabusFollowing this Court's decisions in Swann v. Adams invalidating the apportionment of the Florida Legislature (378 U.S. 553) and the subsequent reapportionment which the District Court had found unconstitutional but approved on an interim basis ( 383 U. S. 383 U.S. 210), the Florida Legislature adopted still another legislative reapportionment plan, which appellants, residents and voters of Dade County, Florida, attacked as failing to meet the standards of voter equality set forth in Reynolds v. Sims, 377 U. S. 533, and companion cases. The new plan provides for 48 senators and 117 representatives. The senate districts range from 15.09% overrepresentation to 10.56% underrepresentation, the ratio between the largest and smallest district being 1.30 to 1. The house districts range from 18.28% overrepresentation to 15.27% underrepresentation, the ratio between the largest and the smallest district being 1.41 to 1. The State failed to present any acceptable reasons for the population variance between districts, indicating only that it was attempting to follow congressional district lines and that its plan came as close as "practical" to complete population equality, though appellants' proposed plan showed the feasibility of measurably reducing population differences between districts. Though recognizing that "apportionment must be substantially on a population basis," the District Court held the variations not discriminatory and upheld the plan.Held:1. Appellants have standing to attack the reapportionment. P. 385 U. S. 443.2. The State's failure to articulate acceptable reasons for population variances between districts invalidates the reapportionment plan. Pp. 385 U. S. 443-447.(a) Allowable deviations from equality of population between legislative districts are confined to minor variations which "are based on legitimate considerations incident to the effectuation of a rational state policy." Reynolds v. Sims, supra, at 377 U.S. 579. P. 385 U. S. 444. Page 385 U. S. 441(b) Minor variations from a pure population standard must be nondiscriminatory and justified by state policy considerations such as integrity of political subdivisions, maintenance of compactness and contiguity in legislative districts, or recognition of natural or historical boundary lines. P. 385 U. S. 444.(c) Variation from the norm approved in one State has little relevance to the validity of a similar variation in another State. P. 385 U. S. 445.258 F. Supp. 819, reversed.

1955_342

Opinion of the Court by MR. JUSTICE HARLAN, announced by MR. JUSTICE BURTON.Czaplicki was injured in 1945 while working as a longshoreman on the "SS Hoegh Silvercloud," a vessel owned by the Norwegian Shipping and Trade Mission and operated by the Kerr Steamship Company. The injury occurred when some steps, constructed by the Hamilton Page 351 U. S. 527 Marine Contracting Company, gave way, causing Czaplicki to fall about five feet. At the time, Czaplicki was employed by the Northern Dock Company, which was insured for purposes of the Longshoremen's and Harbor Workers' Compensation Act [Footnote 1] by the Travelers Insurance Company. Travelers, which was also the insurer of the Hamilton Company, filed notice with the Compensation Commission that any compensation claim by Czaplicki would be controverted. [Footnote 2] Three weeks after the accident, Czaplicki elected to accept compensation rather than proceed against any third parties, and, one day later, a formal compensation award was entered by a Deputy Commissioner. Payments under the award were made by Travelers.In 1952, Czaplicki filed a libel against the vessel, her owners and operators, and the Hamilton Company, claiming damages for his injuries on grounds of unseaworthiness and negligence. [Footnote 3] After various proceedings in the District Court for the Southern District of New York, the libel was dismissed as to all respondents [Footnote 4] on the ground that Czaplicki was not the proper party libelant, since his election to accept compensation under the award had Page 351 U. S. 528 operated, under §§ 33(b) and 33(i), [Footnote 5] as an assignment to Northern and its insurer, Travelers, of his rights of action against third parties. The District Court also overruled Czaplicki's contention that the compensation award was invalid because of alleged procedural defects, [Footnote 6] and denied his motion to add Travelers "as party libelant to sue in its behalf and as trustee for libelant," or simply to add Travelers as a party. [Footnote 7] The District Court found it unnecessary, in light of this disposition of the case, to consider the defense of laches, which had been interposed by each respondent. The Court of Appeals, affirming the District Court, held the compensation award valid and the libel barred by laches; although it indicated some doubt as to the correctness of the District Court's decision on Czaplicki's right to maintain the suit, it did not pass on that question. [Footnote 8] We granted certiorari, 350 U.S. 872, because of the importance of these questions in the administration of the Longshoremen's and Harbor Workers' Compensation Act.1. Czaplicki seeks to avoid the assignment question by attacking the compensation award itself, on the ground of asserted procedural defects. [Footnote 9] However, we think that Page 351 U. S. 529 the award must be treated as a valid one. In the first place, the alleged irregularity could not have prejudiced Czaplicki, since it resulted from a failure to afford his employer a procedural benefit which, we assume arguendo, the statute gives. The defect, if any, is one of which only the employer could complain; Czaplicki, who has not been in any way harmed by it, cannot use it as a vehicle for setting aside the award. Secondly, the supposed defect cannot be used to attack collaterally an otherwise valid award. The statute provides a means for contesting action by the Deputy Commissioner in compensation award cases, [Footnote 10] and, unless that procedure is followed, the award becomes binding. In short, the defect was not one which would deprive the Deputy Commissioner of jurisdiction to enter an award. [Footnote 11]2. Under § 33(b) of the Compensation Act, Czaplicki's acceptance of the compensation award had the effect of assigning his rights of action against third parties to his employer, Northern. Travelers, as Northern's insurer, was in turn subrogated to all Northern's rights by § 33(i). Travelers therefore was the proper party to sue on those rights of action. [Footnote 12] Travelers was also the insurer of Page 351 U. S. 530 Hamilton, one of the third parties subject to suit. Hamilton had constructed the steps on which the accident occurred, and might be held liable if its negligence was the cause of Czaplicki's injuries; it might also be subject to a claim over by Kerr or the Norwegian Trade Mission if either of them should be held liable. Cf. Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124. The result is that Czaplicki's rights of action were held by the party most likely to suffer were the rights of action to be successfully enforced. In these circumstances, we cannot agree that Czaplicki is precluded by the assignment of his rights of action from enforcing those rights in an action brought by himself.Although § 33(b) assigns to the employer "all right of the person entitled to compensation to recover damages" against third parties when there has been acceptance of compensation under an award, this does not mean that the assignee is entitled to retain all damages in the event of a recovery against a third party. Instead, § 33(e) specifically apportions any such recovery between the assignee and the employee whose right of action it was originally, giving to the former an amount equal to the expenses incurred in enforcing the right, expenses of Page 351 U. S. 531 medical care for the employee, and any amounts paid and payable as compensation, and to the latter any balance remaining. [Footnote 13] In a very real sense, therefore, the injured employee has an interest in his right of action even after it has been assigned. Normally, this interest will not be inconsistent with that of the assignee, for presumably the assignee will want to recoup the payments made to the employee. Since the assignee's right to recoup comes before the employee's interest, and because the assignee is likely to be in a better position to prosecute any claims against a third party, control over the right of action is given to the assignee, who can either institute proceedings for the recovery of damages against a third person "or may compromise with such third person either without or after instituting such proceeding." § 33(d), 33 U.S.C. § 933(d). In giving the assignee exclusive control over the right of action, however, we think that the statute presupposes that the assignee's interests will not be in conflict with those of the employee, and that, through action of the assignee, the employee will obtain his share of the proceeds of the right of action, if there is a recovery. Here, where there is such a conflict of interests, the inaction of the assignee operates to defeat the employee's interest in any possible recovery. Since an action by Travelers would, in effect, be an action against itself, Czaplicki is the only person with sufficient adverse interest to bring suit. In this circumstance, we think the statute should be construed to allow Czaplicki to enforce, in his own name, the rights of action that were his originally. Page 351 U. S. 532We need not go so far as to say that, by giving the employee an interest in the proceeds of a third-party action, the statute places the assignee in the position of a fiduciary, cf. United States Fidelity & Guaranty Co. v. United States, 152 F.2d 46, 48; all we hold is that, given the conflict of interests and inaction by the assignee, the employee should not be relegated to any rights he may have against the assignee, but can maintain the third-party action himself. In so holding, we recognize that one Court of Appeals has held otherwise under this same statute, see Hunt v. Bank Line, 35 F.2d 136, as have certain state courts under similar statutes, see Taylor v. New York Central R. Co., 294 N.Y. 397, 62 N.E.2d 777; cf. Whalen v. Athol Mfg. Co., 242 Mass. 547, 136 N.E. 600. We think, however, that allowing suit by the employee in these circumstances is the proper way to ensure him the rights given by the Compensation Act.Travelers is, of course, a proper party to this suit, since any recovery must first go to reimburse it for amounts already paid out. If Travelers is subject to the court's jurisdiction, [Footnote 14] it should therefore be made a party, pursuant to Czaplicki's motion, assuming that there has been proper service of process.3. Respondents contend that, since Czaplicki did not, under § 33(a), 33 U.S.C. § 933(a), elect to proceed against third parties, but rather chose to accept compensation, he can in no event revoke this election and maintain this suit. But, as this Court has already pointed out, "election not to sue a third party and assignment of the cause of action are two sides of the same coin." American Stevedores, Inc., v. Porello, 330 U. S. 446, 330 U. S. 455. Czaplicki can bring this suit not because there has been no assignment, but because, in the peculiar facts here, there is no Page 351 U. S. 533 other procedure by which he can secure his statutory share in the proceeds, if any, of his right of action. For the same reason, we hold that the election to accept compensation, as a step toward the compensation award, does not bar this suit.4. The Court of Appeals found it unnecessary to consider whether Czaplicki could maintain this suit, because it was held barred in any event on account of laches. The only reason given for this holding was that both the New York and New Jersey statutes of limitations, the two that might be applicable, had run. It is well settled, however, that laches as a defense to an admiralty suit is not to be measured by strict application of statutes of limitations; instead, the rule is that "the delay which will defeat such a suit must in every case depend on the peculiar equitable circumstances of that case." The Key City, 14 Wall. 653, 81 U. S. 660. In cases where suit has been brought after some lapse of time, the question is whether it would be inequitable, because of the delay, to enforce the claim. Holmberg v. Armbrecht, 327 U. S. 392, 327 U. S. 396; Southern Pacific Co. v. Bogert, 250 U. S. 483, 250 U. S. 488-489."Where there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief."Gardner v. Panama R. Co., 342 U. S. 29, 342 U. S. 31. This does not mean, of course, that the state statutes of limitations are immaterial in determining whether laches is a bar, but it does mean that they are not conclusive, and that the determination should not be made without first considering all the circumstances bearing on the issue.In this case, the District Court never passed on the defense of laches, which, although properly put in issue, was made irrelevant by the holding that, because of the statutory assignment of his right of action, Czaplicki could not maintain this action. Not only was there no decision on laches, but there was never an opportunity Page 351 U. S. 534 for Czaplicki to introduce evidence to justify the delay, since the suit was dismissed after preliminary hearings and argument on the issue of Czaplicki's "standing."When the case reached the Court of Appeals, therefore, the record was incomplete on the issue of laches. There is nothing in the record to show that Czaplicki was given any more opportunity in the Court of Appeals to explain the delay than he had been given in the District Court. [Footnote 15] The only "finding" made by the Court of Appeals [Footnote 16] was that the running of the statutes of limitations constituted laches, and that, as we have stated, was insufficient. From all that appears, Czaplicki may have failed to bring suit earlier because he relied on the assignee of the right of action to enforce what was presumably an interest common to both of them. The record does not disclose when Czaplicki discovered the assignee's conflicting interest, or whether there has been unjustifiable delay since that discovery. Nor has there been opportunity to prove the statement, made in an affidavit to the District Court, that the delay has in no way prejudiced the respondents. These are questions on which the parties should have been allowed to present evidence. The present record is inadequate to justify a holding that this action was barred by laches.Since "the existence of laches is a question primarily addressed to the discretion of the trial court," Gardner v. Panama R. Co., supra, at 342 U. S. 30, we remand the case to the District Court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtCzaplicki v. The Hoegh Silvercloud, 351 U.S. 525 (1956)Czaplicki v. The Hoegh SilvercloudNo. 342Argued April 24, 1956Decided June 11, 1956351 U.S. 525SyllabusPetitioner, a longshoreman, was injured in 1945 while working on a ship when steps built by a contractor collapsed, causing him to fall. Shortly thereafter, he elected to accept compensation under the Longshoremen's and Harbor Workers' Compensation Act, and an award was made by a Deputy Commissioner. Payments thereunder were made by an insurer which had insured both petitioner's employer and the contractor who had built the steps. In 1952, petitioner filed a libel against the ship, her owners, her operators and the contractor who had built the steps, claiming damages for his injuries on grounds of unseaworthiness and negligence. He also tried unsuccessfully to join the insurer as a party.Held:1. An alleged procedural defect in the compensation award was not such as to prejudice petitioner or to deprive the Deputy Commissioner of jurisdiction to enter the award; and the award cannot now be set aside on that ground. Pp. 351 U. S. 528-529.2. Under § 33(b) of the Compensation Act, petitioner's acceptance of the award had the effect of assigning his rights of action against third parties to his employer, to whom the insurer was subrogated; but that did not preclude petitioner from bringing the libel in the circumstances of this case, because petitioner's rights were held by the insurer -- the party most likely to suffer from enforcement of those rights. Pp. 351 U. S. 529-532.(a) Even after the assignment, petitioner had an interest in his right of action against third parties, since any recovery must be apportioned between the employee and the assignee under § 33(e). Pp. 351 U. S. 530-531.(b) Though § 33(d) gives the assignee control over enforcement of the employee's right of action against third parties, it should not be construed to enable the assignee to defeat the employee's interest in any possible recovery where there is such a conflict of interests as exists in this case. Pp. 351 U. S. 531-532.(c) If the insurer is within the court's jurisdiction, it should be made a party to petitioner's suit. P. 351 U. S. 532. Page 351 U. S. 5263. Under § 33(a), petitioner's election to accept the compensation award instead of proceeding against third parties does not bar this suit in the circumstances of this case. Pp. 351 U. S. 532-533.4. Though the statutes of limitations that might have been applicable had run, petitioner was not necessarily barred by laches on the present record from bringing this suit. Pp. 351 U. S. 533-534.(a) Laches as a defense to an admiralty suit is not to be measured by strict application of statutes of limitations; it depends on the peculiar equitable circumstances of each case. P. 351 U. S. 533.(b) Since the District Court did not consider the defense of laches, but dismissed the libel on other grounds, and the Court of Appeals held, on a record that was incomplete on the issue of laches, that it was barred solely because the statutes of limitations had run, the present record is inadequate to justify a holding that this libel is barred by laches. Pp. 351 U. S. 533-534.(c) The existence of laches is a question primarily addressed to the discretion of the trial court, and the case is remanded to the District Court for further proceedings. P. 351 U. S. 534.223 F.2d 189, reversed and remanded.

1960_7

MR. JUSTICE BLACK delivered the opinion of the Court.The basic question presented in this case is whether an interstate bus passenger is denied a federal statutory or constitutional right when a restaurant in a bus terminal used by the carrier along its route discriminates in serving food to the passenger solely because of his color.Petitioner, a Negro law student, bought a Trailways bus ticket from Washington, D.C., to Montgomery, Alabama. He boarded a bus at 8 p.m. which arrived at Richmond, Virginia, about 10:40 p.m. When the bus pulled up at the Richmond "Trailways Bus Terminal," the bus driver announced a forty-minute stopover there. Petitioner got off the bus and went into the bus terminal to get something to eat. In the station, he found a restaurant in which one part was used to serve white people and one to serve Negroes. Disregarding this division, petitioner sat down on a stool in the white section. A waitress asked him to move over to the other section where there were "facilities" to serve colored people. Petitioner told her he was an interstate bus passenger, refused to move, and ordered a sandwich and tea. The waitress then brought the Assistant Manager, who "instructed" petitioner to "leave the white portion of the restaurant and advised him he could be served in the colored portion." Upon petitioner's refusal to leave, an officer was called and petitioner was arrested and later tried, convicted and Page 364 U. S. 456 fined ten dollars in the Police Justice's Court of Richmond on a charge that he "[u]nlawfully did remain on the premises of the Bus Terminal Restaurant of Richmond, Inc. after having been forbidden to do so" by the Assistant Manager. (Emphasis supplied.) The charge was based on § 18-225 of the Code of Virginia of 1950, as amended (1958), which provides in part:"If any person shall without authority of law go upon or remain upon the lands or premises of another, after having been forbidden to do so by the owner, lessee, custodian or other person lawfully in charge of such land, . . . he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one hundred dollars or by confinement in jail not exceeding thirty days, or by both such fine and imprisonment."(Emphasis supplied.)Petitioner appealed his conviction to the Hustings Court of Richmond, where, as in the Police Court, he admitted that he had remained in the white portion of the Terminal Restaurant although ordered not to do so. His defense in both courts was that he had a federal right as an interstate passenger of Trailways to be served without discrimination by this restaurant used by the bus carrier for the accommodation of its interstate passengers. On this basis, petitioner claimed he was on the restaurant premises lawfully, not "unlawfully" as charged, and that he remained there with, not "without authority of law." His federal claim to this effect was spelled out in a motion to dismiss the warrant in Hustings Court, which was overruled both before and after the evidence was heard. Pointing out that the restaurant was an integral part of the bus service for interstate passengers such as petitioner, and asserting that refusal to serve him was a discrimination based on color, the motion to dismiss charged Page 364 U. S. 457 that application of the Virginia law to petitioner violated the Interstate Commerce Act and the Equal Protection, Due Process, and Commerce Clauses of the Federal Constitution. On appeal, the Virginia Supreme Court held that the conviction was "plainly right," and affirmed without opinion, thereby rejecting petitioner's assignments of error based on the same grounds of discrimination set out in his motion to dismiss in Hustings Court, but not specifically charging that the discrimination violated the Interstate Commerce Act. We think, however, that the claims of discrimination previously made under the Act are sufficiently closely related to the assignments that were made to be considered within the scope of the issues presented to the State Supreme Court. We granted certiorari because of the serious federal questions raised concerning discrimination based on color. 361 U.S. 958.The petition for certiorari we granted presented only two questions: first, whether the conviction of petitioner is invalid as a burden on commerce in violation of Art. I, § 8, cl. 3 of the Constitution, and, second, whether the conviction violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Ordinarily we limit our review to the questions presented in an application for certiorari. We think there are persuasive reasons, however, why this case should be decided, if it can, on the Interstate Commerce Act contention raised in the Virginia courts. Discrimination because of color is the core of the two broad constitutional questions presented to us by petitioner, just as it is the core of the Interstate Commerce Act question presented to the Virginia courts. Under these circumstances, we think it appropriate not to reach the constitutional questions, but to proceed at once to the statutory issue.The Interstate Commerce Act, as we have said, uses language of the broadest type to bar discriminations of all kinds. United States v. Baltimore & Ohio R. Co., 333 Page 364 U. S. 458 U.S. 169, 333 U. S. 175, and cases cited. We have held that the Act forbids railroad dining cars to discriminate in service to passengers on account of their color. Henderson v. United States, 339 U. S. 816; see also Mitchell v. United States, 313 U. S. 80, 313 U. S. 97.Section 216(d) of Part II of the Interstate Commerce Act, 49 U.S.C. § 316(d), which applies to motor carriers, provides in part:"It shall be unlawful for any common carrier by motor vehicle engaged in interstate or foreign commerce to make, give, or cause any undue or unreasonable preference or advantage to any particular person . . . in any respect whatsoever; or to subject any particular person . . . to any unjust discrimination or any unjust or unreasonable prejudice or disadvantage in any respect whatsoever. . . ."So far as relevant to our problem, the provisions of § 216(d) quoted are the same as those in § 3(1) of the Act, 49 U.S.C. § 3(1), except that the latter refers to railroads as defined in Part I of the Act, instead of motor carriers as defined in Part II. Section 3(1) was the basis for this Court's holding in Henderson v. United States, supra, that it was an "undue or unreasonable prejudice" under that section for a railroad to divide its dining car by curtains, partitions and signs in order to separate passengers according to race. The Court said that, under § 3(1),"[w]here a dining car is available to passengers holding tickets entitling them to use it, each such passenger is equally entitled to its facilities in accordance with reasonable regulations."Id., 339 U.S. at 339 U. S. 824. The Henderson case largely rested on Mitchell v. United States, supra, which pointed out that, while the railroads might not be required by law to furnish dining car facilities, yet, if they did, substantial equality of treatment of persons traveling Page 364 U. S. 459 under like conditions could not be refused consistently with § 3(1). It is also of relevance that both cases upset Interstate Commerce Commission holdings, the Court stating in Mitchell that, since the "discrimination shown was palpably unjust and forbidden by the Act," no room was left for administrative or expert judgment with reference to practical difficulties. Id., 313 U.S. at 313 U. S. 97.It follows from the Mitchell and Henderson cases as a matter of course that, should buses in transit decide to supply dining service, discrimination of the kind shown here would violate § 216(d). Cf. Williams v. Carolina Coach Co., 111 F. Supp. 329, aff'd 207 F.2d 408, and Keys v. Carolina Coach Co., 64 M.C.C. 769. Although this Court has not decided whether the same result would follow from a similar discrimination in service by a restaurant in a railroad or bus terminal, we have no doubt that the reasoning underlying the Mitchell and Henderson cases would compel the same decision as to the unlawfulness of discrimination in transportation services against interstate passengers in terminals and terminal restaurants owned or operated or controlled by interstate carriers. This is true as to railroad terminals because they are expressly made carriers by § 1(3)(a) of the Act, [Footnote 1] 49 U.S.C. § 1(3)(a), and as to bus terminals because § 203(a)(19) of the Act, 49 U.S.C. § 303(a)(19), specifically includes interstate transportation facilities and property operated or controlled by a Page 364 U. S. 460 motor carrier within the definition of the "services" and "transportation" to which the motor carrier provisions of the Act apply. [Footnote 2]Respondent correctly points out, however, that whatever may be the facts, the evidence in this record does not show that the bus company owns or actively operates or directly controls the bus terminal or the restaurant in it. But the fact that § 203(a)(19) says that the protections of the motor carrier provisions of the Act extend to "include" facilities so operated or controlled by no means should be interpreted to exempt motor carriers from their statutory duty under § 216(d) not to discriminate should they choose to provide their interstate passengers with services that are an integral part of transportation through the use of facilities they neither own, control nor operate. The protections afforded by the Act against discriminatory transportation services are not so narrowly limited. We have held that a railroad cannot escape its statutory duty to treat its shippers alike either by use of facilities it does not own or by contractual arrangement with the owner of those facilities. United States v. Baltimore & Ohio R. Co., supra. And so here, without regard to contracts, if the bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without discriminations prohibited by the Act. In the performance of these services Page 364 U. S. 461 under such conditions, the terminal and restaurant stand in the place of the bus company in the performance of its transportation obligations. Cf. Derrington v. Plummer, 240 F.2d 922, 925-926, certiorari denied, 353 U.S. 924. Although the courts below made no findings of fact, we think the evidence in this case shows such a relationship and situation here.The manager of the restaurant testified that it was not affiliated in any way with the Trailways Bus Company, and that the bus company had no control over the operation of the restaurant, but that, while the restaurant had "quite a bit of business" from local people, it was primarily or partly for the service of the passengers on the Trailways bus. This last statement was perhaps much of an understatement, as shown by the lease agreement executed in writing and signed both by the "Trailways Bus Terminal, Inc.," as lessor, and the "Bus Terminal Restaurant of Richmond, Inc.," as lessee. The first part of the document showed that Trailways Terminal was then constructing a "bus station" with built-in facilities "for the operation of a restaurant, soda fountain, and news stand." Terminal covenanted to lease this space to Restaurant for its use; to grant Restaurant the exclusive right to sell foods and other things usually sold in restaurants, newsstands, soda fountains, and lunch counters; to keep the terminal building in good repair, and to furnish certain utilities. Restaurant, on its part, agreed to use its space for the sale of commodities agreed on at prices that are "just and reasonable"; to sell no commodities not usually sold or installed in a bus terminal concession without Terminal's permission; to discontinue the sale of any commodity objectionable to Terminal; to buy, maintain, and replace equipment subject to Terminal's approval in writing as to its quality; to make alterations and additions only after Terminal's written consent and approval; to make no "sales on buses Page 364 U. S. 462 operating in and out said bus station," but only "through the windows of said buses"; to keep its employees neat and clean; to perform no terminal service other than that pertaining to the operation of its restaurant as agreed on; and that neither Restaurant nor its employees were to"sell transportation of any kind or give information pertaining to schedules, rates or transportation matters, but shall refer all such inquiries to the proper agents of"Terminal. In short, as Terminal and Restaurant agreed,"the operation of the restaurant and the said stands shall be in keeping with the character of service maintained in an up-to-date, modern bus terminal."All of these things show that this terminal building, with its grounds, constituted one project for a single purpose, and that was to serve passengers of one or more bus companies -- certainly Trailways' passengers. The restaurant area was specifically designed and built into the structure from the beginning to fill the needs of bus passengers in this "up-to-date, modern bus terminal." Whoever may have had technical title or immediate control of the details of the various activities in the terminal, such as waiting room seating, furnishing of schedule information, ticket sales, and restaurant service, they were all geared to the service of bus companies and their passengers, even though local people who might happen to come into the terminal or its restaurant might also be accommodated. Thus we have a well coordinated and smoothly functioning plan for continuous cooperative transportation services between the terminal, the restaurant, and buses like Trailways that made stopovers there. All of this evidence plus Trailways' use on this occasion shows that Trailways was not utilizing the terminal and restaurant services merely on a sporadic or occasional basis. This bus terminal plainly was just as essential and necessary, and as available, for that matter, to passengers and carriers like Trailways that used it, as though such carriers Page 364 U. S. 463 had legal title and complete control over all of its activities. [Footnote 3] Interstate passengers have to eat, and the very terms of the lease of the built-in restaurant space in this terminal constitute a recognition of the essential need of interstate passengers to be able to get food conveniently on their journey and an undertaking by the restaurant to fulfill that need. Such passengers in transit on a paid interstate Trailways journey had a right to expect that this essential [Footnote 4] transportation food service voluntarily provided for them under such circumstances would be rendered without discrimination prohibited by the Interstate Commerce Act. Under the circumstances of this case, therefore, petitioner had a federal right to remain in the white portion of the restaurant. He was there under "authority of law" -- the Interstate Commerce Act -- and it was error for the Supreme Court of Virginia to affirm his conviction.Because of some of the arguments made here, it is necessary to say a word about what we are not deciding. We are not holding that, every time a bus stops at a wholly independent roadside restaurant, the Interstate Commerce Act requires that restaurant service be supplied in harmony with the provisions of that Act. We decide only this case, on its facts, where circumstances show that the terminal and restaurant operate as an integral part of the Page 364 U. S. 464 bus carrier's transportation service for interstate passengers. Under such circumstances, an interstate passenger need not inquire into documents of title or contractual arrangements in order to determine whether he has a right to be served without discrimination.The judgment of the Supreme Court of Virginia is reversed, and the cause is remanded to that Court for proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtBoynton v. Virginia, 364 U.S. 454 (1960)Boynton v. VirginiaNo. 7Argued October 12, 1960Decided December 5, 1960364 U.S. 454SyllabusFor refusing to leave the section reserved for white people in a restaurant in a bus terminal, petitioner, a Negro interstate bus passenger, was convicted in Virginia courts of violating a state statute making it a misdemeanor for any person "without authority of law" to remain upon the premises of another after having been forbidden to do so. On appeal, he contended that his conviction violated the Interstate Commerce Act and the Equal Protection, Due Process and Commerce Clauses of the Federal Constitution; but his conviction was sustained by the State Supreme Court. On petition for certiorari to this Court, he raised only the constitutional questions.Held:1. Notwithstanding the fact that the petition for certiorari presented only the constitutional questions this Court will consider the statutory issue, which involves essentially the same problem -- racial discrimination in interstate commerce. P. 364 U. S. 457.2. Under § 216(d) of the Interstate Commerce Act, which forbids any interstate common carrier by motor vehicle to subject any person to unjust discrimination, petitioner had a federal right to remain in the white portion of the restaurant, he was there "under authority of law," and it was error to affirm his conviction. Pp. 364 U. S. 457-463.(a) When a bus carrier has volunteered to make terminal and restaurant facilities and services available to its interstate passengers as a regular part of their transportation, and the terminal and restaurant have acquiesced and cooperated in this undertaking, the terminal and restaurant must perform these services without discriminations prohibited by the Act. Pp. 364 U. S. 457-461.(b) Although the courts below made no findings of fact, the evidence in this case shows such a situation here. Pp. 364 U. S. 461-463.Reversed. Page 364 U. S. 455

1968_548

MR. JUSTICE MARSHALL announced the judgment of the Court and delivered an opinion in which MR. CHIEF JUSTICE WARREN and MR. JUSTICE BRENNAN join.This case involves the constitutionality of a 1967 Louisiana statute, known as Act No. 2, which creates Page 395 U. S. 414 a body called the Labor-Management Commission of Inquiry. La.Rev.Stat.Ann. §§ 23:880.1-23:880.18 (Supp. 1969). The stated purpose of this Commission is"the investigation and findings of facts relating to violations or possible violations of criminal laws of the state of Louisiana or of the United States arising out of or in connection with matters in the field of labor-management relations. . . ."Act No. 2, Preamble, [1967 Extra.Sess.] La. Acts 3. Appellant, a member of a labor union, filed this suit in the District Court for the Eastern District of Louisiana challenging the constitutionality of Act No. 2 and of certain actions taken by state officials in the administration of the Act and otherwise. He sought both declaratory and injunctive relief. A three-judge court was convened, and that court ultimately granted appellees' motion to dismiss the complaint. Jenkins v. McKeithen, 286 F. Supp. 537 (D.C.E.D.La.1968). We noted probable jurisdiction of an appeal brought under 28 U.S.C. § 1253. [Footnote 1] We reverse. Since the case was decided on a motion to dismiss, a rather detailed examination of the structure of the Act and of the allegations of the complaint is necessary.IThe impetus for the formation of the Commission was stated in the preamble of the Act. [1967 Extra.Sess.] La.Acts 2. It cited "unprecedented conditions" in the labor relations of the construction industry, and it particularly noted certain"allegations and accusations of violations of the state and federal criminal laws which should be thoroughly investigated in the public interest. . . ."Id. at 3. The additional investigative facilities of the Commission were thought necessary to Page 395 U. S. 415"supplement and assist the efforts and activities of the several district attorneys, grand juries and other law enforcement officials and agencies. . . ."Ibid.The Commission is comprised of nine members appointed by the Governor. La.Rev.Stat.Ann. § 23:880.1 (Supp. 1969). It is empowered to act only upon referral by the Governor when, in his opinion, there is substantial indication that there are or may be "widespread or continuing violations of existing criminal laws" affecting labor-management relations. La.Rev.Stat.Ann. § 23:880.5 (Supp. 1969). Upon referral by the Governor, the Commission is to proceed by public hearing to ascertain the facts pertaining to the alleged violations. La.Rev.Stat.Ann. § 23:880.6 (Supp. 1969). In order to carry out this function, the Commission has the power to make appropriate rules and regulations, to employ attorneys, investigators, and other staff members, to compel the attendance of witnesses, to examine them under oath, and to require the production of books, records, and other evidence. La.Rev.Stat.Ann. § 23:880.8 (Supp. 1969). It can enforce its orders by petition to the state courts for contempt proceedings. La.Rev.Stat.Ann. § 23:880.9 (Supp. 1969).The scope of the Commission's investigative authority is explicitly limited by the Act to violations of criminal laws."The commission shall have no power, authority or jurisdiction to investigate, hold hearings or seek to ascertain the facts or make any reports or recommendations on any of the strictly civil aspects of any labor problem. . . ."La.Rev.Stat.Ann. § 23:880.6 B (Supp. 1969). [Footnote 2] Further, the Commission has no power to Page 395 U. S. 416 participate in any manner in any civil proceeding, except, of course, contempt proceedings. Ibid. The limitation of the Commission to criminal matters is further reinforced by the provision of the Act allowing the Commission, at the request of the Governor, to assign its investigatory forces to the state police to assist the latter in their investigatory activities. La.Rev.Stat.Ann. § 23:880.6C (Supp. 1969).The Commission is required to determine, in public findings, whether there is probable cause to believe violations of the criminal laws have occurred. La.Rev.Stat.Ann. § 23:880.7A (Supp. 1969). Its power is limited to making these findings and recommendations:"The commission shall have no authority to and it shall make no binding adjudication with respect to such violation or violations; however, it may, in its discretion, include in its findings the conclusions Page 395 U. S. 417 of the commission as to specific individuals . . . and it may make such recommendations for action to the governor as it deems appropriate."Ibid.The findings are to be a matter of public record, La.Rev.Stat.Ann. § 23:880.15B (Supp. 1969), although they may not be used as prima facie or presumptive evidence of guilt or innocence in any court of law, La.Rev.Stat.Ann. § 23:880.7A (Supp. 1969). The Commission is required to report its findings to the proper state or federal authorities if it finds there is probable cause to believe that violations of the criminal laws have occurred, and it may file appropriate charges. La.Rev.Stat.Ann. § 23:880.7B (Supp. 1969). Finally, the Commission may request the Governor to refer matters to the State Attorney General, asking the latter to exercise his authority to cause criminal prosecutions to be instituted. La.Rev.Stat.Ann. § 23:880.7D (Supp. 1969). Nothing in the Act makes any provision for preparation of findings or reports for submission to the Governor or the legislature for the explicit purpose of legislative action. Indeed, the preamble of the Act and the Act itself make it clear that the purpose of the Commission is to supplement the activities of the State's law enforcement agencies in one narrowly defined area.As indicated above, the Commission has the power to compel the attendance of witnesses. A witness is given notice of the general subject matter of the investigation before being asked to appear and testify. La.Rev.Stat.Ann. § 23:880.10A (Supp. 1969). A witness has the right to the presence and advice of counsel,"subject to such reasonable limitations as the commission may impose in order to prevent obstruction of or interference with the orderly conduct of the hearing."La.Rev.Stat.Ann. § 23:880.10B (Supp. 1969). Counsel may question his client as to any relevant matters, ibid., but the Page 395 U. S. 418 right of a witness or his counsel to examine other witnesses is limited:"In no event shall counsel for any witness have any right to examine or cross-examine any other witness, but he may submit to the commission proposed questions to be asked of any other witness appearing before the commission, and the commission shall ask the witness such of the questions as it deems to be appropriate to its inquiry."Ibid. With one limited exception, to be discussed below, neither a witness nor any other private party has the right to call anyone to testify before the Commission.Although the Commission must base its findings and reports only on evidence and testimony given at public hearings, the Act does provide for executive session when it appears that the testimony to be given "may tend to degrade, defame or incriminate any person." La.Rev.Stat.Ann. § 23:880.12A (Supp. 1969). In executive session, the Commission must allow the person who might be degraded, defamed, or incriminated an opportunity to appear and be heard, and to call a reasonable number of witnesses on his behalf. Ibid. However, the Commission may decide that the evidence or testimony shall be heard in a public hearing, regardless of its effect on any particular person. Ibid. In that case, the person affected has the right to appear as a "voluntary witness," and may submit "pertinent" statements of others. Ibid. He may submit a list of additional witnesses, but subpoenas will be issued only in the discretion of the Commission. Ibid.; see also La.Rev.Stat.Ann. § 23:880.12C (Supp. 1969).IIAppellant's complaint named as defendants the Governor of Louisiana and six members of the Commission. The complaint presented, inter alia, the question of Page 395 U. S. 419 whether the provisions of Act No. 2 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Appellant alleged that the Commission was an executive trial agency "aimed at conducting public trials concerning criminal law violations," and that its function was publicly to condemn. Appellant asserted that the defendants,"in connection with the administration of the provisions of said Act, have singled out complainant and members of Teamsters Local No. 5 as a special class of persons for repressive and willfully punitive action . . . in furtherance of which a deliberate effort has been made and continues to be made by said officials . . . to destroy the current power structure of the labor union aforesaid. . . ."More specifically, the complaint alleged that appellees and their agents, acting under color of law and in conspiracy, procured false statements of criminal activities and used such statements to initiate baseless criminal proceedings against appellant, that they intimidated and coerced public officials into filing and prosecuting false criminal charges against appellant, and that they knowingly, willfully, and purposefully intimidated state court judges having under consideration legal controversies involving appellant. These acts of appellees allegedly deprived appellant and all others similarly situated of "rights, privileges and immunities secured to them by the Constitution and laws of the United States." Finally, appellant alleged that the appellees intended to continue to deprive him and others of their rights, and that there was no "plain, adequate or efficient remedy at law."Appellant prayed that a three-judge district court be convened, that a temporary restraining order issue, that Act No. 2 be declared unconstitutional, that all civil Page 395 U. S. 420 and criminal actions against appellant be permanently restrained, and that other unspecified relief be granted.Temporary relief was denied by the District Court, and a three-judge court was impaneled to hear the case. Appellees answered and moved to dismiss. They alleged that appellant lacked standing to question the constitutionality of Act No. 2, and that the complaint failed to state a cause of action. Thereafter, appellant filed a "Supplemental and Amending Petition" in which he alleged, in some detail, that appellees had continued the course of action described in the original complaint. After a hearing, the court dismissed the complaint. Jenkins v. McKeithen, supra.The court, relying largely on the opinion of the Louisiana Supreme Court in Martone v. Morgan, 251 La. 993, 207 So. 2d 770, appeal dismissed, 393 U. S. 12 (1968) (petition for rehearing pending), held that this Court's decision in Hannah v. Larche, 363 U. S. 420 (1960), was dispositive of the issue of the constitutionality of the Act. The court further ruled that appellant had not stated any other claim for relief under §§ 1981, 1983, and 1988 of Title 42, United States Code. Rather, the court held that the other matters sought to be raised in the complaint were merely potential defenses to the pending criminal charges, and that appellant had not alleged any basis for restraining prosecution of those charges. Finally, the court ruled that appellant's suit was not a proper class action under Rule 23 of the Federal Rules of Civil Procedure. [Footnote 3] The court did not explicitly rule on the issue of whether appellant lacked standing to challenge the Act.Appellant presents two questions for review in this Court: Whether Act No. 2 is constitutional, and whether Page 395 U. S. 421 the complaint otherwise states a cause of action under 42 U.S.C. §§ 1981, 1983, and 1988.IIIWe are met at the outset with appellees' assertion that appellant lacks standing to attack the constitutionality of Act No. 2. This argument is based in part upon certain allegations in the complaint that Act No. 2 is unconstitutional because it denies to "a person compelled to appear before . . . [the] Commission" the right to effective assistance of counsel, the right of confrontation, and the right to compulsory process for the attendance of witnesses. Since appellant did not allege in his complaint that he was called to appear before the Commission or that he expected to be called, appellees assert that he lacks standing to assert the denial of rights to those who do appear. See, e.g., Tileston v. Ullman, 318 U. S. 44 (1943). Further, appellees argue that appellant lacks standing because he cannot demonstrate that he has been, or will be, "injured" by the operation of the challenged statute. We cannot agree.The present case was decided on appellees' motion to dismiss, in which appellees contested appellant's standing to challenge the constitutionality of the Act. As noted above, the court below made no explicit reference to the issue of standing. But since the question of standing goes to this Court's jurisdiction, see Flast v. Cohen, 392 U. S. 83, 392 U. S. 94-101 (1968), we must decide the issue even though the court below passed over it without comment. Cf. Tileston v. Ullman, supra.For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. See, e.g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 382 U. S. 174-175 (1965). And the complaint is to be liberally construed in favor of plaintiff. See Fed.Rule Civ.Proc. 8(f); Conley v. Page 395 U. S. 422 Gibson, 355 U. S. 41 (1957). The complaint should not be dismissed unless it appears that appellant could "prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, supra, at 355 U. S. 45-46. With these rules in mind, we turn to an examination of the allegations of appellant's complaint.It is true, as appellees assert, that appellant alleges deprivations of rights of those who are or will be called to testify before the Commission, and that he fails to allege that he was or will be called to testify. If this were the extent of appellant's allegations, we would agree that appellant lacks standing to challenge the Act. However, appellant's allegations are not limited to those mentioned by appellees. Appellant alleged that the Commission was an "executive trial agency" whose function was to conduct public trials designed to find appellant and others guilty of violations of criminal laws, allegedly for the purpose of injuring him and destroying the labor union of which he was a member. More specifically, appellant alleged that"said Commission of Inquiry exercises (a) an accusatory function, (b) its duty to find that named individuals are responsible for criminal law violations, (c) it must advertise such findings, and (d) its findings serve as part of the process of criminal prosecution. . . ."Finally, the complaint alleged that the appellees, acting in concert with others and in connection with the administration of the Act, have actually engaged in a course of conduct designed publicly to brand appellant and others as criminals, including, as noted above, the filing of allegedly baseless criminal charges against appellant.Thus, although the complaint is inartfully drawn, it does allege that the Commission and those acting in concert with it have taken and will take in the future certain Page 395 U. S. 423 actions with respect to appellant. The issue is thus whether those allegations are sufficient to give appellant standing to challenge the constitutionality of the Act creating the Commission and the actions taken by the Commission under authority of that Act. We think that they are.The concept of standing to sue, as we noted in Flast v. Cohen, supra, "is surrounded by the same complexities and vagaries that inhere in [the concept of] justiciability" in general. 392 U.S. at 392 U. S. 98. Nevertheless, the outlines of the concept can be stated with some certainty. The indispensable requirement is, of course, that the party seeking relief allege"such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. . . ."Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962); see Flast v. Cohen, supra; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 341 U. S. 151 (1951) (concurring opinion). In this sense, the concept of standing focuses on the party seeking relief, rather than on the precise nature of the relief sought. See Flast v. Cohen, supra, at 99-100. The decisions of this Court have also made it clear that something more than an "adversary interest" is necessary to confer standing. There must in addition be some connection between the official action challenged and some legally protected interest of the party challenging that action. See Flast v. Cohen, supra, at 392 U. S. 101-106.In the present case, it is clear that appellant possesses sufficient adversary interest to insure proper presentation of issues facing the court. His allegations, if taken as true, indicate that the Commission and those acting in concert with it have carried out a series of public acts designed to injure him in various ways. Appellant's interest in his own reputation and in his economic wellbeing Page 395 U. S. 424 guarantee that the present proceeding will be an adversary one.We also think that appellant has alleged that the Act's administration was the direct cause of sufficient injury to his own legally protected interests to accord him standing to challenge the validity of the Act. We are not presented with a case in which any injury to appellant is merely a collateral consequence of the actions of an investigative body. See Hannah v. Larche, supra, at 363 U. S. 443; cf. Sinclair v. United States, 279 U. S. 263, 279 U. S. 295 (1929); McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 179-180 (1927). Rather, it is alleged that the very purpose of the Commission is to find persons guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings. Moreover, we think that the personal and economic consequences alleged to flow from such actions are sufficient to meet the requirement that appellant prove a legally redressable injury. Those consequences would certainly be actionable if caused by a private party, and thus should be sufficient to accord appellant standing. See Greene v. McElroy, 360 U. S. 474, 360 U. S. 493, n. 22 (1959); Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 341 U. S. 140-141 (opinion of Burton, J.); id. at 341 U. S. 151-160 (Frankfurter, J., concurring). It is no answer that the Commission has not itself tried to impose any direct sanctions on appellant; it is enough that the Commission's alleged actions will have a substantial impact on him. See, e.g., Columbia Broadcasting System, Inc. v. United States, 316 U. S. 407 (1942); cf. NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460-463 (1958). Finally, in the circumstances of the present case, we do not regard appellant's opportunity to defend any criminal prosecutions as sufficient to deprive him of standing to challenge the Act. Cf. United States v. Los Angeles & S.L. R. Co., 273 U. S. 299 (1927). Appellant's allegations go beyond the normal publicity attending Page 395 U. S. 425 criminal prosecution; he alleges a concerted attempt publicly to brand him a criminal without a trial. Further, he alleges that he has been unsuccessful in his attempts to secure prosecution of the charges against him.We hold that appellant's complaint contains sufficient allegations of direct and substantial injury to his own legally protected interests to accord him standing to challenge the constitutionality of Act No. 2.IVWe thus reach the merits of appellant's contention that Act No. 2 is unconstitutional. Appellant's complaint is long and inartfully drawn; it contains many allegations of wrongdoing on the part of the Commission and other state officials. But the only issue presented by this aspect of the case is whether the Act creating the Commission is constitutional, either on its face or as applied. Many of appellant's allegations are relevant to this latter contention, but many involve issues that the court below ruled were properly matters to be raised in defense of any criminal prosecutions which might take place. We will deal with those allegations in the final section of this opinion.Appellees, like the court below, rely heavily on this Court's decision in Hannah v. Larche, supra. In Hannah, this Court upheld the Civil Rights Commission against challenges similar to those involved in the present case. Indeed, Act No. 2 was drafted with Hannah in mind, and the structure and powers of the Commission here are similar to those of the Civil Rights Commission. See Jenkins v. McKeithen, 28 F. Supp. at 540; Martone v. Morgan, supra. We cannot agree, however, that Hannah controls the present case, for we think that there are crucial differences between the issues presented by this complaint and the issues in Hannah. Page 395 U. S. 426The appellants in Hannah were persons subpoenaed to appear before the Civil Rights Commission in connection with complaints about deprivations of voting rights. They objected to the Civil Rights Commission's rules about nondisclosure of the complainants and about limitations on the right to confront and cross-examine witnesses. This Court ruled that the Commission's rules were consistent with the Due Process Clause of the Fifth Amendment. The Court noted that"'[d]ue process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account."363 U.S. at 363 U. S. 442.In rejecting appellants' challenge to the Civil Rights Commission's procedures, the Court placed great emphasis on the investigatory function of the Commission:"[I]ts function is purely investigative and factfinding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action."363 U.S. at 363 U. S. 441. Page 395 U. S. 427 The Court noted that any adverse consequences to those being investigated, such as subjecting them to public opprobrium, were purely conjectural, and, in any case, were merely collateral, and "not . . . the result of any affirmative determinations made by the Commission. . . ." 363 U.S. at 363 U. S. 443. Morgan v. United States, 304 U. S. 1 (1938), Joint Anti-Fascist Refugee Committee v. McGrath, supra, and Greene v. McElroy, supra, were distinguished on the ground that "[t]hose cases . . . involved . . . determinations in the nature of adjudications affecting legal rights." 363 U.S. at 363 U. S. 451.We reaffirm the decision in Hannah. In our view, however, the Commission in the present case differs in a substantial respect from the Civil Rights Commission and the other examples cited by the Court in Hannah. It is true, as the Supreme Court of Louisiana has held, Martone v. Morgan, supra, that the Commission does not adjudicate in the sense that a court does, nor does the Commission conduct, strictly speaking, a criminal proceeding. Nevertheless, the Act, when analyzed in light of the allegations of the complaint, makes it clear that the Commission exercises a function very much akin to making an official adjudication of criminal culpability. See Joint Anti-Fascist Refugee Committee v. McGrath, supra.The Commission is limited to criminal law violations; the Act explicitly provides that the Commission shall have no jurisdiction over civil matters in the labor-management relations field. Indeed, the Commission is even limited to certain types of criminal activities. [Footnote 4] As noted above, nothing in the Act indicates that the Commission's findings are to be used for legislative purposes. Rather, everything in the Act points to the fact that it is concerned only with exposing violations of criminal laws by specific individuals. In short, the Commission very Page 395 U. S. 428 clearly exercises an accusatory function; it is empowered to be used, and allegedly is used, to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public.Given this view of the purpose of the Labor-Management Commission of Inquiry, we agree with Justice Frankfurter, concurring in the result in Hannah v. Larche:"Were the [Civil Rights] Commission exercising an accusatory function, were its duty to find that named individuals were responsible for wrongful deprivation of voting rights and to advertise such finding or to serve as part of the process of criminal prosecution, the rigorous protections relevant to criminal prosecutions might well be the controlling starting point for assessing the protection which the Commission's procedure provides."363 U.S. at 363 U. S. 488.When viewed from this perspective, it is clear the procedures of the Commission do not meet the minimal requirements made obligatory on the States by the Due Process Clause of the Fourteenth Amendment. Specifically, the Act severely limits the right of a person being investigated to confront and cross-examine the witnesses against him. Only a person appearing as a witness may cross-examine other witnesses. Cross-examination is further limited to those questions which the Commission "deems to be appropriate to its inquiry," and those questions must be submitted, presumably beforehand, in writing to the Commission. We have frequently emphasized that the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process. See, e.g., Willner v. Committee on Character and Fitness, 373 U. S. 96, 373 U. S. 103-104 (1963); Greene Page 395 U. S. 429 v. McElroy, supra, at 360 U. S. 496-499, and cases cited. In the present context, where the Commission allegedly makes an actual finding that a specific individual is guilty of a crime, we think that due process requires the Commission to afford a person being investigated the right to confront and cross-examine the witnesses against him, subject only to traditional limitations on those rights. Cf. Pointer v. Texas, 380 U. S. 400 (1965).The Commission's procedures also drastically limit the right of a person investigated to present evidence on his own behalf. It is true that he may appear and call a "reasonable number of witnesses" in executive session, but, should the Commission decide to hold a public hearing, he is limited to presentation of his own testimony and the "pertinent" written statements of others. The right to present oral testimony from other witnesses and the power to compel attendance of those witnesses may be denied in the discretion of the Commission. The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause. See, e.g., Morgan v. United States, supra, at 304 U. S. 18; Baltimore & Ohio R. Co. v. United States, 298 U. S. 349, 298 U. S. 368-369 (1936). And, as we have noted above, this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime. Cf. Washington v. Texas, 388 U. S. 14 (1967); In re Oliver, 333 U. S. 257, 333 U. S. 273 (1948). We do not mean to say that the Commission may not impose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person's right to present his case should not be left to the unfettered discretion of the Commission.Appellant argues that the procedures contemplated by the Act are deficient in other respects. In particular, he alleges that the Act provides no meaningful rules of Page 395 U. S. 430 evidence and fails to provide standards of guilt or innocence. He also alleges that the Act deprives him of effective assistance of counsel. We have, however, said enough to demonstrate that appellant has alleged a cause of action for declaratory and injunctive relief. Whether the Due Process Clause requires that the Commission provide all the procedural protections afforded a defendant in a criminal prosecution, or whether something less is sufficient, are questions that we think should be initially answered by the District Court on remand. As we have noted, "[w]hether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors." Hannah v. Larche, supra, at 363 U. S. 442. We think it inappropriate to rule on the extent to which the Commission's procedures may run afoul of the Due Process Clause on the basis of the record before us, barren as it is of any established facts. That issue is best decided in the first instance by the District Court in light of the evidence adduced at trial.We do not mean to say that this same analysis applies to every body which has an accusatory function. The grand jury, for example, need not provide all the procedural guarantees alleged by appellant to be applicable to the Commission. As this Court noted in Hannah,, "the grand jury merely investigates and reports. It does not try." 363 U.S. at 363 U. S. 449. Moreover, "[t]he functions of that institution and its constitutional prerogatives are rooted in long centuries of Anglo-American history." Id. at 363 U. S. 489-490 (Frankfurter, J., concurring in the result). Finally the grand jury is designed to interpose an independent body of citizens between the accused and the prosecuting attorney and the court. See Stirone v. United States, 361 U. S. 212, 361 U. S. 218 (1960); Ex parte Bain, 121 U. S. 1, 121 U. S. 11 (1887); Hannah v. Larche, supra, at 363 U. S. 497-499 (dissenting opinion). Investigative bodies such as the Commission have no claim to specific Page 395 U. S. 431 constitutional sanction. In addition, the alleged function of the Commission is to make specific findings of guilt, not merely to investigate and recommend. Finally, it is clear from the Act and from the allegations of the complaint that the Commission is in no sense an "independent" body of citizens. Rather, its members serve at the pleasure of the Governor, La.Rev.Stat.Ann. § 23:880.1 (Supp. 1969), and it cannot act in the absence of a "referral" from the Governor, La.Rev.Stat.Ann. §§ 23:880.5, 23:880.6A (Supp. 1969).We also wish to emphasize that we do not hold that appellant is now entitled to declaratory or injunctive relief. We only hold that he has alleged a cause of action which may make such relief appropriate. It still remains for him to prove at trial that the Commission is designed to, and does indeed, act in the manner alleged in his complaint, and that its procedures fail to meet the requirements of due process.VAs noted above, appellant also alleges in his complaint that appellees, and those acting in concert with them, have engaged in a course of conduct, both pursuant to the Act and otherwise, that has resulted in the filing of false criminal charges against appellant. He alleges numerous other related actions allegedly depriving him of his rights secured by the Constitution. The complaint seeks declaratory and injunctive relief with regard to these acts; in particular, appellant prays that the District Court enjoin all civil and criminal actions pending or to be instituted against him. To the extent that these allegations involve actions taken under the direct authority of Act No. 2, we think that they may properly be considered by the District Court in determining the constitutionality of the Act. However, the District Court characterized many of appellant's allegations as Page 395 U. S. 432 involving merely potential defenses to the criminal charges assertedly pending. In the exercise of its discretion, and because the issues were "intertwined" with the issue of the constitutionality of the Act, the court passed upon the question of whether appellant had alleged a cause of action for declaratory and injunctive relief. Relying in part on its determination that the Act was constitutional, the court held that appellant had not stated a claim for declaratory or injunctive relief and that appellant's remedy was to defend any criminal prosecutions then pending or that might be brought. Jenkins v. McKeithen, supra, 286 F. Supp. at 542-543. Whether the court will take the same view of the propriety of passing on the question or of the merits in light of our holding and the evidence adduced at trial cannot be determined at this time. Accordingly, we think that issue should be left open for reconsideration on remand.The judgment of the court below is reversed, and the cause is remanded for further proceedings.It is so ordered

U.S. Supreme CourtJenkins v. McKeithen, 395 U.S. 411 (1969)Jenkins v. McKeithenNo. 548Argued March 25, 1969Decided June 9, 1969395 U.S. 411SyllabusAppellant, a labor union member, filed this suit in the District Court for declaratory and injunctive relief challenging as violative of due process and equal protection the Louisiana statute that creates a body called the Labor-Management Commission of Inquiry for the purpose of investigating and finding facts relating to violations of state or federal criminal laws in the labor-management relations field. The Commission, appointed by the Governor, is to hold public hearings concerning such alleged violations, and its powers include making rules, employing investigators, compelling the attendance of witnesses, and requiring the production of records. The Commission is required to make public findings whether there is probable cause to believe that criminal violations have occurred, to report such findings of probable cause to law enforcement authorities, and to request the Governor to refer matters to the State Attorney General for prosecutive action. There is no provision for submission of findings for the purpose of legislative action. Witnesses have the right to counsel "subject to . . . reasonable limitations" imposed by the Commission, but the right to cross-examine other witnesses is limited, neither a witness nor a private party having the right to call anyone to testify before the Commission at public hearings. Appellant charged that the Commission is an "executive trial agency" "aimed at conducting public trials concerning criminal law violations"; that its function is publicly to condemn; that the appellees (the Governor and six Commissioners) have singled out appellant and members of his union "as a special class of persons for repressive and willfully punitive action," procuring false statements of criminal activities to initiate baseless criminal proceedings against appellant, coercing public officials into prosecuting false criminal charges against him, and intimidating judges considering legal controversies involving him, and that the Commission and those acting in concert with it will continue to take such actions against appellant. Appellees moved to dismiss, alleging that appellant lacked standing to make his constitutional challenge, since he did not claim that he was called or expected to be called to appear before the Commission Page 395 U. S. 412 or would be "injured" by the operation of the statute, and that the complaint failed to state a cause of action. A three-judge District Court dismissed the complaint, holding that Hannah v. Larche, 363 U. S. 420, foreclosed relief on the constitutional issue, and that the other allegations of the complaint raised merely potential defenses to assertedly pending criminal charges.Held: The judgment is reversed and remanded. Pp. 395 U. S. 413-433.286 F. Supp. 537, reversed and remanded.MR. JUSTICE MARSHALL, joined by THE CHIEF JUSTICE and MR. JUSTICE BRENNAN, concluded that:1. Appellant has standing to challenge the statute's constitutionality. Pp. 395 U. S. 421-425.(a) The allegations of the complaint indicate that the Commission and those acting in concert with it have carried out a series of acts designed to injure appellant in several ways, and it is thus clear that appellant has sufficient adversary interest to insure proper presentation of issues facing the court. Pp. 395 U. S. 423-424.(b) Appellant has sufficiently alleged a nexus between the official action challenged and his legally protected interest, since he has claimed that the very purpose of the Commission is to find him and persons like him guilty of violating criminal laws without trial or procedural safeguards, and to publicize those findings, and thus the Commission's alleged actions will substantially affect him. P. 395 U. S. 424.(c) In the circumstances of this case, where appellant claims a concerted attempt to brand him a criminal without trial, and has claimed that he has vainly tried to secure prosecution of charges against him, his opportunity to defend criminal prosecution is not sufficient to deprive him of standing to challenge the statute. Pp. 395 U. S. 424-425.2. Appellant has alleged a cause of action which may make declaratory and injunctive relief appropriate. and is entitled to go to trial on his allegations concerning the Commission and that its procedures violate the Due Process Clause of the Fourteenth Amendment. Pp. 395 U. S. 425-431.(a) Hannah v. Larch, supra, is reaffirmed. The functions of the Civil Rights Commission, whose procedures were upheld in that case, were primarily investigatory and for legislative and executive purposes, whereas the Commission in this case is limited to criminal law violations, and allegedly exercises a role very much akin to making an official adjudication of criminal culpability, Page 395 U. S. 413 performing functions that are primarily accusatory, and have no legislative purpose. Pp. 395 U. S. 425-428.(b) Due process requires that the Commission here, which allegedly makes actual findings of guilt, afford a person being investigated the right to confront and cross-examine witnesses against him. Pp. 395 U. S. 428-429.(c) The Commission's alleged procedures drastically limiting the right of a person being investigated to present evidence on his own behalf do not comport with due process. P. 395 U. S. 429.(d) The extent to which the Commission's procedures in these and other respects alleged by appellant may violate the Due Process Clause should be decided in the first instance by the District Court in light of the evidence adduced at trial. Pp. 395 U. S. 429-430.3. Whether appellant's allegations that false criminal charges were filed against him involve actions taken under the statute, and should thus be taken into account by the District Court in determining the statute's constitutionality, or are merely potential defenses, as the District Court held, to assertedly pending criminal charges should be left open for reconsideration on remand. Pp. 395 U. S. 431-432.MR. JUSTICE DOUGLAS concurs in the result for the reasons stated in his dissent in Hannah v. Larche, supra, at 363 U. S. 493-508. P. 395 U. S. 432.MR. JUSTICE BLACK adhered to MR. JUSTICE DOUGLAS' dissent in Hannah v. Larche, supra, and, while concurring in much of the prevailing opinion in this case, concluded that the statute involved here, like the statute involved in Hannah, constitutes a scheme for a nonjudicial tribunal to convict people without any of the safeguards of the Bill of Rights, and denies due process of law. Pp. 395 U. S. 432-433.

1987_87-82

JUSTICE STEVENS delivered the opinion of the Court.The question presented by this appeal concerns the constitutionality of a statutory provision that authorizes the Page 486 U. S. 232 Federal Deposit Insurance Corporation (FDIC) to suspend from office an indicted official of a federally insured bank. The District Court concluded that the statutory post-suspension procedure is unconstitutional because it does not guarantee the suspended officer a sufficiently prompt decision or an unqualified right to present oral testimony. The District Court therefore enjoined the FDIC from enforcing an order suspending appellee from serving as the president and as a director of the Farmers State Bank in Kanawha, Iowa, and from otherwise participating in the conduct of the affairs of any FDIC-insured bank. 667 F. Supp. 652, 662, 664 (1987). We noted probable jurisdiction. 484 U.S. 911 (1987). We reverse.IIn 1966, Congress adopted several amendments to the Federal Deposit Insurance Act to give federal banking agencies more effective regulatory powers to deal with crises in financial institutions. [Footnote 1] The amendments were designed to protect the interests of depositors and to prevent the potentially debilitating effect of public loss of confidence in the banking industry. See S.Rep. No. 1482, 89th Cong., 2d Sess., 4-5 (1966) (S.Rep.); 112 Cong.Rec. 20080 (1966) (remarks of Sen. Proxmire). Congress therefore enacted 12 U.S.C. § 1818(g)(1) to give the appropriate federal banking agency [Footnote 2] the authority to take immediate action to suspend an officer Page 486 U. S. 233 or director of an insured bank if he or she is formally charged with a felony involving dishonesty or breach of trust. As originally enacted, § 1818(g)(1) permitted the appropriate banking agency to suspend an indicted bank officer without providing an opportunity to be heard either before or after issuance of the order of suspension. [Footnote 3]In 1974, the FDIC invoked its § 1818(g)(1) authority to suspend the president of an Illinois bank who had been indicted for conspiracy to commit mail fraud. That officer successfully challenged the constitutionality of the suspension on the ground that it had deprived him of property without due process of law. The three-judge District Court, in Feinberg v. FDIC, 420 F. Supp. 109 (DC 1976), found that the public Page 486 U. S. 234 interest in prompt action justified a suspension without a prior hearing, but concluded that the officer was constitutionally entitled to a prompt and meaningful post-suspension hearing in which he could attempt to persuade the FDIC to exercise its discretion to revoke the suspension. In its opinion, the District Court emphasized that the 1966 statute had given the FDIC standardless discretion to suspend or not to suspend an indicted bank official. [Footnote 4]In response to the Feinberg decision, in 1978 Congress amended § 1818(g) by incorporating standards in subsection (1) to guide the FDIC in the exercise of its discretion, [Footnote 5] and Page 486 U. S. 235 by enacting a new subsection (3) to give the suspended officer the right to a post-suspension hearing before the agency to demonstrate that his or her continued service would not jeopardize the interests of depositors or impair public confidence in the bank. [Footnote 6] It is the adequacy of the post-suspension procedure Page 486 U. S. 236 authorized by subsection (3) that is at issue in this appeal.IIOn December 10, 1986, appellee was indicted by a federal grand jury in the Northern District of Iowa. He was charged with making false statements to the FDIC in violation of 18 U.S.C. § 1001 and with making false statements to the Farmers State Bank with the purpose of influencing the actions of the FDIC in violation of 18 U.S.C. § 1014, offenses that are punishable by imprisonment for more than one year, and that unquestionably involve dishonesty or breach of trust. [Footnote 7] At the time of the indictment, appellee Page 486 U. S. 237 was the president and a director of a federally insured bank. Thus, if the FDIC found that his continued service "[might] pose a threat to the interests of the bank's depositors or Page 486 U. S. 238 [might] threaten to impair public confidence in the bank," the requirements specified in § 1818(g)(1) for a suspension order would be satisfied.On January 20, 1987, the FDIC issued an ex parte order containing the necessary findings, suspending appellee as the president and as a director of the bank and prohibiting him "from further participation in any manner in the conduct of the affairs of the Bank, or any other bank insured by the FDIC." [Footnote 8] App. to Juris. Statement 28a. A copy of the order was served on appellee on January 26, 1987. Four days later, appellee's attorney made a written request for "an immediate administrative hearing" at which he proposed to offer "both oral testimony and written evidence" to establish that appellee's continued service was not likely to pose a threat to the interests of the bank's depositors or to threaten public confidence in the bank. App. 26. The letter requested Page 486 U. S. 239 that the hearing be expedited and commence no later than February 9, 1987.After various communications with appellee's counsel, the FDIC's regional counsel, and the Administrative Law Judge who was selected to conduct the hearing, it was decided that a hearing would be held on February 18, 1987. 667 F. Supp. at 655. In those communications, the FDIC's regional counsel took the position that oral testimony would not be necessary. App. 28-30. The hearing officer, however, never had an opportunity to decide whether to receive such testimony, because the administrative proceedings were interrupted by this litigation.On February 6, 1987, appellee filed his complaint against the FDIC in the Federal District Court for the Northern District of Iowa and promptly moved for a preliminary injunction. After receiving evidence in the form of affidavits and exhibits, and after hearing oral argument -- but no oral testimony -- the District Court entered an order declaring the suspension "null and void" and enjoining the FDIC from enforcing it. The District Court rejected appellee's argument that the order was invalid because it was not preceded by a hearing, 667 F. Supp. at 658, but held that the post-suspension process was "constitutionally inadequate because it does not contemplate a prompt' disposition," id. at 659, and also "because it fails to provide for a hearing at which oral evidence can be presented," id. at 660. [Footnote 9] The District Court Page 486 U. S. 240 made it clear that it was expressing no opinion on the merits of the suspension; its decision rested entirely on the perceived procedural shortcomings in the post-suspension process.IIIIt is undisputed that appellee's interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property right protected by the Fifth Amendment Due Process Clause. The District Court and the parties correctly recognized that the FDIC cannot arbitrarily interfere with appellee's continuing employment relationship with the bank, nor with his interest as a substantial stockholder in the bank's holding company. See Feinberg v. FDIC, 173 U.S.App.D.C. 120, 125, 522 F.2d 1335, 1340 (1975); cf. Cleveland Bd. of Education v. Loudermill, 470 U. S. 532, 470 U. S. 538-541 (1985). It is also undisputed that the FDIC's order of suspension affected a deprivation of this property interest. Accordingly, appellee is entitled to the protection of due process of law."Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481 (1972). Here again, we at least start with substantial agreement. Appellee does not contend that he was entitled to an opportunity to be heard prior to the order of suspension. An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation. See Barry v. Barchi, 443 U. S. 55, 443 U. S. 64-66 (1979); Dixon v. Love, 431 U. S. 105, 431 U. S. 112-115 (1977); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 211 U. S. 314-321 (1908). In this case, the postponement of the hearing is supported by such an interest. The legislation under scrutiny is premised on the congressional finding prompt suspension of indicted bank officers may be necessary to protect the interests of depositors and to maintain public confidence in our banking institutions. See S.Rep. at 4-5; 112 Cong.Rec. 20080 (1966) (remarks of Sen. Proxmire). This interest is certainly as significant as the State's interest in preserving the integrity of the sport of horse racing, an interest that we deemed sufficiently important in Barry v. Barchi, supra, at 443 U. S. 64-65, to justify a brief period of suspension prior to affording the suspended trainer a hearing. Moreover, as in Barchi, appellee's suspension was supported by findings that assure that the suspension was not baseless. A grand jury had determined that there was probable cause to believe that appellee had committed a felony. Such an ex parte finding of probable cause provides a sufficient basis for an arrest, which of course constitutes a temporary deprivation of liberty. [Footnote 10] See Baker v. McCollan, 443 U. S. 137, 443 U. S. 142, 443 U. S. 143 (1979). It should certainly be sufficient, when coupled with the congressional finding that Page 486 U. S. 241 a prompt suspension is important to the integrity of our banking institutions, to support the order entered in this case on January 20, 1987, even though the FDIC did not provide appellee with a separate pre-suspension hearing. The three-judge District Court in the Feinberg case, the District Court in this case, and this Court are all in accord on that proposition.We cannot agree with the District Court, however, that appellee was denied a sufficiently prompt post-deprivation hearing. As our cases indicate, the District Court was properly concerned about the importance of providing prompt post-deprivation procedures in situations in which an agency's Page 486 U. S. 242 discretionary impairment of an individual's property is not preceded by any opportunity for a pre-deprivation hearing. See Barchi, supra, at 443 U. S. 66. However, the District Court seems to have been improperly concerned with the danger of an interminable delay by the agency, rather than by what would have happened in this case if the proceedings had not been interrupted, or indeed, what might have happened if the FDIC had been as dilatory as the statute permits. For even though there is a point at which an unjustified delay in completing a post-deprivation proceeding "would become a constitutional violation," Cleveland Bd. of Education v. Loudermill, 470 U.S. at 470 U. S. 547, the significance of such a delay cannot be evaluated in a vacuum. In determining how long a delay is justified in affording a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 455 U. S. 434 (1982); Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 334-335 (1976).Section 1818(g)(3) requires the FDIC to hold a hearing within 30 days of a written request for an opportunity to appear before the agency to contest a suspension and requires that it notify the suspended officer of its decision within 60 days of the hearing. Thus, at maximum, the suspended officer receives a decision within 90 days of his or her request for a hearing. In this case, the agency reported that it would have been able to issue a written decision within 30 days after the hearing. [Footnote 11] In addition, the initial hearing was scheduled Page 486 U. S. 243 to take place -- had it not been interrupted by the preliminary injunction -- 19 days after it was formally requested.Appellee's interest in continued employment is without doubt an important interest that ought not be interrupted without substantial justification. We have repeatedly recognized the severity of depriving someone of his or her livelihood. See Brock v. Roadway Express, Inc., 481 U. S. 252, 481 U. S. 263 (1987); Loudermill, 470 U.S. at 470 U. S. 543. Yet, even assuming that the FDIC required the complete 90 days to hear the case and reach its decision, we are not persuaded that this exceeds permissible limits. In fact, a suspended bank officer has an interest in seeing that a decision concerning his or her continued suspension is not made with excessive haste. The statute imposes a permissive standard for continuing a suspension, and presumably, when in doubt, the agency may give greater weight to the public interest and leave the suspension in place, particularly when the suspension does not impose the additional harm of a significant, incremental in jury to reputation. Through the return of the indictment, the Government has already accused the appellee of serious wrongdoing. The incidental suspension is not likely to augment this injury to the officer's reputation. We thus conclude that the 90-day period is not so long that it will always violate due process. In many cases, perhaps most, it will be justified by an important government interest coupled with factors minimizing the risk of an erroneous deprivation. Cf. Page 486 U. S. 244 Loudermill, supra, at 470 U. S. 546-547 (9-month delay in final decision not "unconstitutionally lengthy per se").The magnitude of the public interest in a correct decision counsels strongly against any constitutional imperative that might require overly hasty decisionmaking. The same governmental interest that justifies permitting suspension prior to the opportunity to be heard extends to this analysis as well. Congress has determined that the integrity of the banking industry requires that indicted bank officers be suspended until it is determined that they do not pose a threat to the interests of the bank's depositors or threaten to undermine public confidence in the bank. To return these officers to a position of influence in the conduct of the bank's affairs prior to an opportunity to weigh the evidence carefully would threaten these interests in the same way as allowing them to remain in office from the start. Thus, the public has a strong interest in seeing the ultimate decision made in a considered and deliberate manner. Congress certainly acted within constitutional bounds in determining that 30 days might be required to set and prepare for the hearing, and that, in some cases, another 60 days may be needed to reach a decision. The decision is a serious one, and may involve complex issues and an extensive evidentiary record. See Feinberg, 420 F. Supp. at 120 (hearing would involve a "complex legal question" and "subtle interrelation of fact and policy").Moreover, and perhaps most significantly, there is little likelihood that the deprivation is without basis. The returning of the indictment establishes that an independent body has determined that there is probable cause to believe that the officer has committed a crime punishable by imprisonment for a term in excess of one year. This finding is relevant in at least two important ways. First, the finding of probable cause by an independent body demonstrates that the suspension is not arbitrary. Second, the return of the indictment itself is an objective fact that will in most cases Page 486 U. S. 245 raise serious public concern that the bank is not being managed in a responsible manner. In addition, when § 1818(g) was initially enacted, Congress indicated that suspensions would be "virtually routine." S.Rep. at 2. The later amendments prompted by the Feinberg decision do not suggest that Congress has disavowed this expectation; rather, the standard adopted by Congress -- "may pose a threat to the bank's depositors or may threaten to impair public confidence in the bank" -- would appear to be easily satisfied in the case of bank officials charged with crimes involving dishonesty. One would expect that a decision not to suspend would be the exception. It is thus unlikely that any particular suspension would be erroneously imposed.We are therefore persuaded that the congressionally recognized interest in maintaining confidence in our banking institutions, coupled with the finding of probable cause that the officer has committed a felony involving dishonesty, is sufficient ground for a regulatory suspension of up to 90 days without the benefit of a post-suspension ruling. In reaching a contrary result, the District Court attached importance to the fact that the criminal proceedings might be concluded more promptly than the FDIC proceeding. The Court reasoned that, because the Speedy Trial Act requires that a federal criminal trial take place within 70 days of indictment -- plus, of course, time properly excluded under the Act -- the criminal trial might well take place before the FDIC need reach a decision. See 18 U.S.C. § 3161. The Court accordingly concluded that the statutorily required hearing is "a toothless remedy for the plaintiffs, since the agency can postpone a disposition until after the criminal trial has concluded." 667 F. Supp. at 659. "It is a remedy only if the agency chooses for it to be a remedy." Ibid.We find the possibility that a suspended officer's criminal trial may conclude before expiration of the 90-day period from request for a hearing to decision quite irrelevant. If Page 486 U. S. 246 appellee had been promptly acquitted, the basis for the suspension would have disappeared, and the order would have been vacated. On the other hand, a conviction merely strengthens the case for maintaining the suspension, and provides grounds for suspension under § 1829 as well. [Footnote 12] The criminal trial merely constitutes a potentially intervening factor that may require that the suspension be promptly vacated; it is difficult to conceive of how this intervening factor interferes with appellee's due process rights.Nor is this case controlled by our decision in Barry v. Barchi, 443 U. S. 55 (1979). In Barchi, a horse trainer's license was suspended for 15 days after a horse he trained was discovered to have had drugs in its system during a race. The state regulatory scheme raised a rebuttable presumption that the trainer either administered the drug or was negligent in protecting against such an occurrence. The trainer claimed that he neither administered the drug nor was negligent. In considering the administrative scheme, we first concluded that the State acted within the bounds of due process in suspending the trainer without a pre-suspension hearing. However, we concluded that the scheme violated due process because "it [was] as likely as not" that the trainer would irretrievably suffer the full penalty before the State would be put to its proof at a post-suspension hearing. Id. at 66. In such situations, the State must assure a prompt post-suspension hearing, "without appreciable delay." Ibid. Page 486 U. S. 247 In this case, by contrast, the appellee is not denied a meaningful opportunity to be heard. Rather than closing the door to the benefit of an opportunity to be heard, the possibility that the criminal trial may precede the FDIC hearing simply provides an additional forum at which to demonstrate that the suspension was unjustified. If the official is successful in the criminal proceeding, then due process has prevailed and the order of suspension must be vacated. If he or she is convicted, the order of suspension is further supported.We also reject appellee's contention that § 1818(g) violates due process because it does not guarantee an opportunity to present oral testimony. The statute provides that the suspended officer may "submit written materials (or, at the discretion of the agency, oral testimony)" and present oral argument. § 1818(g)(3). The relevant regulation, in turn, delegates the decision whether to accept oral testimony to the hearing officer. See 12 CFR § 308.61(e) (1987). In rejecting appellee's contention, we may assume that there are post-suspension proceedings under § 1818(g) in which oral testimony is essential to enable the hearing officer to make a fair appraisal of the impact of a suspended officer's continued service on the bank's security and reputation. Indeed, we may assume that this is such a case. The problem with appellee's position, however, is that he did not give the hearing officer an opportunity to decide whether to hear whatever testimony he might have adduced. No offer of proof was ever made, and thus certainly was not rejected. For all we know, the hearing officer might have accepted such evidence; or, if he rejected it, he might have been entirely correct in deciding that it was merely cumulative to material that was adequately covered by written submissions or that it was otherwise unnecessary or improper. A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court. There is no inexorable requirement that Page 486 U. S. 248 oral testimony must be heard in every administrative proceeding in which it is tendered. [Footnote 13] See Califano v. Yamasaki, 442 U. S. 682, 442 U. S. 696 (1979). The District Court's reliance on the absence of such a guarantee in this case was therefore misplaced.IVThe post-suspension procedure authorized by § 1818(g)(3) is not unconstitutional on its face, nor do we find any unfairness in the FDIC's use of that procedure in this case. The District Court's preliminary injunction is accordingly reversed.It is so ordered

U.S. Supreme CourtFDIC v. Mallen, 486 U.S. 230 (1988)FDIC v. MallenNo. 87-82Argued March 22, 1988Decided May 31, 1988486 U.S. 230SyllabusTitle 12 U.S.C. § 1818(g)(1) authorizes the Federal Deposit Insurance Corporation (FDIC) to suspend from office an indicted official of a federally insured bank if his continued service poses a threat to the interests of the bank's depositors or threatens to impair public confidence in the bank. Section 1818(g)(3) entitles a suspended official to a hearing before the FDIC within 30 days of his written request, and to a final decision within 60 days of the hearing. At the hearing, the official may "submit written materials (or, at the discretion of the agency, oral testimony) and oral argument." The FDIC suspended appellee, the president and a director of a federally insured bank, after he was indicted for making false statements to the FDIC and the bank for the purpose of influencing the FDIC in violation of 18 U.S.C. §§ 1001 and 1014. A hearing was scheduled to occur 19 days after his written request for an expedited hearing, but the FDIC's regional counsel took the position that the oral testimony appellee proposed to offer at the hearing would not be necessary. Before the hearing date, appellee filed suit in the Federal District Court, which preliminarily enjoined the FDIC from enforcing the suspension order. Although it rejected appellee's argument that the order was invalid because it was not preceded by a hearing, the court concluded that § 1818(g)(3)'s post-suspension procedure violates the Due Process Clause of the Fifth Amendment because it does not guarantee a suspended officer a sufficiently prompt decision or an unqualified right to present oral testimony.Held:1. Section 1818(g)(3)'s post-suspension procedure is not unconstitutional on its face. Pp. 486 U. S. 240-248.(a) Appellee was not entitled to a pre-suspension hearing, since the important governmental interest in protecting depositors and maintaining public confidence, coupled with the fact that the felony indictment provided substantial assurance that the suspension was not baseless, justified prompt action before a suspension hearing was held. Cf. Barry v. Barchi, 443 U. S. 55. Pp. 486 U. S. 240-241.(b) Appellee was not denied a sufficiently prompt post-suspension hearing. Although a bank officer has an important, constitutionally protected interest in continued employment, he also has an interest in seeing Page 486 U. S. 231 that a decision concerning his continued suspension is not made with excessive haste. Moreover, a temporary suspension is not likely to augment the injury to the officer's reputation that has already been done by an indictment accusing him of serious wrongdoing. Thus, even a delay of the full 90 days allowed by § 1818(g)(3) for a post-suspension decision will usually be justified by the public interest in a correct decision as to whether depositors' interests or public confidence are threatened, and by the likelihood, arising from the grand jury's finding of probable cause that the officer has committed a felony involving dishonesty, that the suspension decision was not mistaken. The fact that the criminal proceedings might be concluded more promptly than the FDIC proceeding is irrelevant to the due process determination, since an acquittal will require that the suspension order be vacated, while a conviction will merely strengthen the case for maintaining the suspension. Barry v. Barchi, supra, distinguished. Pp. 486 U. S. 241-247.(c) The District Court's reliance on § 1818(g)(3)'s failure to guarantee an opportunity to present oral testimony was misplaced. The relevant regulation delegates the discretionary decision whether to accept oral testimony to the hearing officer, but appellee never gave that officer the opportunity to render a decision. There is no inexorable requirement that oral testimony be heard in every administrative proceeding in which it is tendered, and unconstitutionality cannot be premised on the fact that discretionary authority to admit or reject such evidence may be applied in an arbitrary or unfair way in some hypothetical case. Pp. 486 U. S. 247-248.2. There was no unfairness in the FDIC's use of the § 1818(g)(3) procedure in this case. P. 486 U. S. 248.667 F. Supp. 652, reversed.STEVENS, J., delivered the opinion for a unanimous Court.

1980_80-396

JUSTICE BLACKMUN delivered the opinion of the Court.In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), this Court for the first time held that a local government was subject to suit as a "person" within the meaning of 42 U.S.C. § 1983. Aside from concluding that a municipal body was not wholly immune from civil liability, the Court had no occasion to explore the nature or scope of any particular municipal immunity under the statute. 436 U.S. at 436 U. S. 701. The question presented by this case is whether a municipality may be held liable for punitive damages under § 1983.ARespondent Fact Concerts, Inc., is a Rhode Island corporation organized for the purpose of promoting musical concerts. [Footnote 1] In 1975, it received permission from the Rhode Island Department Page 453 U. S. 250 of Natural Resources to present several summer concerts at Fort Adams, a state park located in the city of Newport. In securing approval for the final concerts, to be held August 30 and 31, respondent sought and obtained an entertainment license from petitioner city of Newport. [Footnote 2] Under their written contract, respondent retained control over the choice of performers and the type of music to be played, while the city reserved the right to cancel the license without liability if, "in the opinion of the City, the interests of public safety demand." App. 27.Respondent engaged a number of well-known jazz music acts to perform during the final August concerts. Shortly before the dates specified, the group Blood, Sweat and Tears was hired as a replacement for a previously engaged performer who was unable to appear. Members of the Newport City Council, including the Mayor, became concerned that Blood, Sweat and Tears, which they characterized as a rock group, rather than as a jazz band, would attract a rowdy and undesirable audience to Newport. Record Appendix (R.A.) 265, 316-317, 325. [Footnote 3] Based on this concern, the Council attempted to have Blood, Sweat and Tears removed from the program.On Monday, August 25, Mayor Donnelly informed respondent by telephone that he considered Blood, Sweat and Tears to be a rock group, and that they would not be permitted to perform because the city had experienced crowd disturbances at previous rock concerts. Id. at 195. Officials of respondent appeared before the City Council at a special meeting the next day, and explained that Blood, Sweat and Tears in fact were a jazz band that had performed at Carnegie Hall in New York City and at similar symphony hall facilities Page 453 U. S. 251 throughout the world. Speaking for the Council, the Mayor reiterated that the city did not condone rock festivals. Without attempting to investigate either the nature of the group's music or the representations made by respondent, the Council voted to cancel the license for both days unless Blood, Sweat and Tears were removed from the program. Id. at 267-269. The vote received considerable publicity, and this adversely affected ticket sales. Id. at 248-G.Later in the same week, respondent was informed by the City Solicitor that the Council had changed its position, and would allow Blood, Sweat and Tears to perform if they did not play rock music. On Thursday, August 28, respondent agreed to attend a second special Council meeting the following day.The second Council session convened on the afternoon of August 29, the day before the first scheduled performance. Mayor Donnelly informed the Council members that the city had two options -- it could either allow Blood, Sweat and Tears to perform subject to the prohibition against rock music, or cancel the concert altogether. Although the City Solicitor advocated the first alternative and advised that cancellation would be unlawful, 3 R.A. 478, the Council did not offer the first option to respondent. Instead, one of the Council members inquired whether all provisions of the contract had been fulfilled. The City Manager, who had just returned from the concert site, reported that the wiring together of the spectator seats was not fully completed by 3 p. m., and that the auxiliary electric generator was not in place. Under the contract, respondent had agreed to fulfill these two conditions as part of the overall safety procedures. App. 28. [Footnote 4] The Page 453 U. S. 252 Council then voted to cancel the contract because respondent had not "lived up to all phases" of the agreement. 4 R.A. 10. The Council offered respondent a new contract for the same dates, specifically excluding Blood, Sweat and Tears. Respondent, however, indicated that it would take legal action if the original contract was not honored. 1 R.A. 96; 2 R.A. 202; 4 R.A. 11. After the meeting adjourned at 9:30 p.m., the decision to revoke respondent's license was broadcast extensively over the local media. 1 R.A. 97; 2 R.A. 204.On Saturday morning, August 30, respondent obtained in state court a restraining order enjoining the Mayor, the City Council, and the city from interfering with the performance of the concerts. The 2-day event, including the appearance of Blood, Sweat and Tears, took place without incident. Fewer than half the available tickets were sold.BRespondent instituted the present action in the United States District Court for the District of Rhode Island, naming the city, its Mayor, and the six other Council members as defendants. Alleging, inter alia, that the license cancellation amounted to content-based censorship, and that its constitutional rights to free expression and due process had been violated under color of state law, respondent sought compensatory and punitive damages against the city and its officials under 42 U.S.C. § 1983 and under two pendent state law counts, including tortious interference with contractual relationships. App. 8. At the conclusion of six days of trial, the District Court charged the jury with respect to the § 1983 and tortious interference counts. Included in its charge was Page 453 U. S. 253 an instruction, given without objection, that authorized the jury to award punitive damages against each defendant individually, "based on the degree of culpability of the individual defendant." App. 62. [Footnote 5] The jury returned verdicts for respondent on both counts, awarding compensatory damages of $72,910 and punitive damages of $275,000; of the punitive damages, $75,000 as spread among the seven individual officials, and $200.000 was awarded against the city. [Footnote 6]Petitioner moved for a new trial, arguing that punitive damages cannot be awarded under § 1983 against a municipality, and that, even if they can, the award was excessive. [Footnote 7] Because petitioner challenged the punitive damages instruction to which it had not objected at trial, the District Court noted that the challenge was untimely under Federal Rule of Civil Procedure 51. But the court was determined not to "rest its decision on this procedural ground alone." App. to Pet. for Cert. 3. Reasoning that "a careful resolution of this novel question is critical to a just verdict in this case," Page 453 U. S. 254 id. at 7, the court proceeded to consider petitioner's substantive legal arguments on their merits.The District Court recognized, ibid., that Monell had left undecided the question whether municipalities may be held liable for punitive damages. 436 U.S. at 436 U. S. 701. The court observed, however, that punitive damages often had been awarded against individual officials in § 1983 actions, and it found no clear basis for distinguishing between individuals and municipalities in this regard. Emphasizing the general deterrent purpose served by punitive damages awards, the court reasoned that a municipality's payment of such an award would focus taxpayer and voter attention upon the entity's malicious conduct, and that this, in turn, might promote accountability at the next election. App. to Pet. for Cert. 9. Although noting that the burden imposed upon taxpaying citizens warranted judicial caution in this area, the court concluded that, in appropriate circumstances, municipalities could be held liable for punitive damages in a § 1983 action. [Footnote 8]The United States Court of Appeals for the First Circuit affirmed. 626 F.2d 1060 (1980). That court noted, as an initial matter, that the challenge to the punitive damages award was flawed due to petitioner's failure to object to the charge at trial. The court observed that such a failure should be overlooked "only where the error is plain and has seriously affected the fairness, integrity or public reputation of a judicial proceeding.'" Id. at 1067. The court found none of these factors present, because the law concerning municipal liability under § 1983 was in a state of flux, and no appellate decision had barred punitive damages awards against a municipality.The Court of Appeals also expressed a belief that the Page 453 U. S. 255 challenged instruction might well not have been error at all. 626 F.2d at 1067. Citing its own prior holdings to the effect that punitive damages are available against § 1983 defendants, and this Court's recent determination in Monell that a municipality is a "person" within the meaning of § 1983, the court identified the"distinct possibility that municipalities, like all other persons subject to suit under § 1983, may be liable for punitive damages in the proper circumstances."626 F.2d at 1067.Because of the importance of the issue, we granted certiorari. 449 U.S. 1060 (1980).IIAt the outset, respondent asserts that the punitive damages issue was not properly preserved for review before this Court. Brief for Respondents 7-9. In light of Rule 51's uncompromising language [Footnote 9] and the policies of fairness and judicial efficiency incorporated therein, respondent claims that petitioner's failure to object to the charge at trial should foreclose any further challenge to that instruction. The problem with respondent's argument is that the District Court, in the first instance, declined to accept it. Although the punitive damages question perhaps could have been avoided simply by a reliance, under Rule 51, upon petitioner's procedural default, [Footnote 10] the judge concluded that the interests of justice required careful consideration of this "novel question" of federal law. [Footnote 11] Page 453 U. S. 256 Because the District Court reached and fully adjudicated the merits, and the Court of Appeals did not disagree with that adjudication, no interests in fair and effective trial administration advanced by Rule 51 would be served if we refused now to reach the merits ourselves. [Footnote 12]Nor are we persuaded that our review should be limited to determining whether "plain error" has been committed, an exception to Rule 51 that is invoked on occasion by the Courts of Appeals absent timely objection in the trial court. [Footnote 13] No "right" to a specific standard of review exists in this setting, any more than a "right" to review existed at all once petitioner failed to except to the charge at trial. But given the special circumstances of this case, limiting our review to a restrictive "plain error" standard would be peculiarly inapt."Plain error" review under Rule 51 is suited to correcting obvious instances of injustice or misapplied law. A court's interpretation of the contours of municipal liability under § 1983, as both courts below recognized, hardly could give rise to plain judicial error, since those contours are currently in a state of evolving definition and uncertainty. See Owen v. City of Independence, 445 U. S. 622 (1980); Monell. See Page 453 U. S. 257 also Maine v. Thiboutot, 448 U. S. 1 (1980); Middlesex County Sewerage Authority v. National Sea Clammers Assn., ante 453 U. S. 1. We undertake review here in order to resolve one element of the uncertainty, that is, the availability of punitive damages, and it would scarcely be appropriate or just to confine our review to determining whether any error that might exist is sufficiently egregious to qualify under Rule 51. The very novelty of the legal issue at stake counsels unconstricted review.In addition to being novel, the punitive damages question is important, and appears likely to recur in § 1983 litigation against municipalities. [Footnote 14] And here the question was squarely presented and decided on a complete trial record by the court of first resort, was argued by both sides to the Court of Appeals, and has been fully briefed before this Court. In light of all these factors, we conclude that restricting our review to the plain error standard would serv neither to promote the interests of justice nor to advance efficient judicial administration. [Footnote 15] We therefore turn to the merits of petitioner's claim. [Footnote 16] Page 453 U. S. 258IIIIt is by now well settled that the tort liability created by § 1983 cannot be understood in a historical vacuum. In the Civil Rights Act of 1871, Congress created a federal remedy against a person who, acting under color of state law, deprives another of constitutional rights. See Monroe v. Pape, 365 U. S. 167, 365 U. S. 172 (1961). Congress, however, expressed no intention to do away with the immunities afforded state officials at common law, and the Court consistently has declined to construe the general language of § 1983 [Footnote 17] as automatically abolishing such traditional immunities by implication. Procunier v. Navarette, 434 U. S. 555, 434 U. S. 561 (1978); Imbler v. Pachtman, 424 U. S. 409, 424 U. S. 417 (1976); Pierson v. Ray, 386 U. S. 547, 386 U. S. 554-555 (1967); Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 376 (1951). Instead, the Court has recognized immunities of varying scope applicable to different officials sued under the statute. [Footnote 18] One important assumption underlying the Court's decisions in this area is that members of the 42d Congress were familiar with common law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common law principles to obtain, absent specific provisions to the contrary.At the same time, the Court's willingness to recognize certain traditional immunities as affirmative defenses has not led it to conclude that Congress incorporated all immunities existing Page 453 U. S. 259 at common law. See Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 243 (1974). Indeed, because the 1871 Act was designed to expose state and local officials to a new form of liability, it would defeat the promise of the statute to recognize any preexisting immunity without determining both the policies that it serves and its compatibility with the purposes of § 1983. See Imbler v. Pachtman, 424 U.S. at 424 U. S. 424; id. at 424 U. S. 434 (opinion concurring in judgment); Owen v. City of Independence, 445 U.S. at 445 U. S. 638. Only after careful inquiry into considerations of both history and policy has the Court construed § 1983 to incorporate a particular immunity defense.Since Monell was decided three years ago, the Court has applied this two-part approach when scrutinizing a claim of immunity proffered by a municipality. In Owen v. City of Independence, the Court held that neither history nor policy supported a construction of § 1983 that would allow a municipality to assert the good faith of its officers or agents as a defense to liability for damages. 445 U.S. at 445 U. S. 638, 445 U. S. 657. Owen, however, concerned only compensatory damages, and petitioner contends that, with respect to a municipality's liability for punitive damages, an examination of the common law background and policy considerations yields a very different result.ABy the time Congress enacted what is now § 1983, the immunity of a municipal corporation from punitive damages at common law was not open to serious question. It was generally understood by 1871 that a municipality, like a private corporation, was to be treated as a natural person subject to suit for a wide range of tortious activity, [Footnote 19] but this understanding Page 453 U. S. 260 did not extend to the award of punitive or exemplary damages. Indeed, the courts that had conidered the issue prior to 1871 were virtually unanimous in denying such damages against a municipal corporation. E.g., Woodman v. Nottingham, 49 N.H. 387 (1870); City of Chicago v. Langlass, 52 Ill. 256 (1869); City Council of Montgomery v. Gilmer & Taylor, 33 Ala. 116 (1858); Order of Hermits of St. Augustine v. County of Philadelphia, 4 Clark 120, Brightly N.P. 116 (Pa. 1847); McGary v. President & Council of the City of Lafayette, 12 Rob. 668, 674 (La. 1846). [Footnote 20] Judicial disinclination to award punitive damages against a municipality has persisted to the present day in the vast majority of jurisdictions. [Footnote 21] See generally 18 E. McQuillin, Municipal Corporations § 53.18a (3d rev. ed.1977); F. Burdick, Law of Torts 245-246 (4th ed. Page 453 U. S. 261 1926); 4 J. Dillon, Law of Municipal Corporations § 1712 (5th ed.1911); G. Field, Law of Damages § 80 (1876).The language of the opinions themselves is instructive as to the reasons behind this common law tradition. In McGary, for example, the Louisiana Supreme Court refused to allow punitive damages against the city of Lafayette despite the malicious acts of its municipal officers, who had violated an injunction by ordering the demolition of plaintiff's house. Reasoning that the officials' malice should not be attributed to the taxpaying citizens of the community, the court explained its holding:"Those who violate the laws of their country, disregard the authority of courts of justice, and wantonly inflict injuries, certainly become thereby obnoxious to vindictive damages. These, however, can never be allowed against the innocent. Those which the plaintiff has recovered in the present case . . . , being evidently vindictive, cannot, in our opinion, be sanctioned by this court, as they are to be borne by widows, orphans, aged men and women, and strangers, who, admitting that they must repair the injury inflicted by the Mayor on the plaintiff, cannot be bound beyond that amount, which will be sufficient for her indemnification."12 Rob. at 677.Similarly, in Hunt v. City of Boonville, 65 Mo. 620 (1877), the Missouri Supreme Court held that a municipality could not be found liable for treble damages under a trespass statute, notwithstanding the statute's authorization of such damages against "any person." After noting the existence of "respectable authority" to the effect that municipal corporations "can not, as such, do a criminal act or a willful and malicious wrong, and they cannot therefore be made liable for exemplary damages," id. at 624, the court continued:"[T]he relation which the officers of a municipal corporation sustain toward the citizens thereof for whom they act is not in all respects identical with that existing between Page 453 U. S. 262 the stockholders of a private corporation and their agents; and there is not the same reason for holding municipal corporations, engaged in the performance of acts for the public benefit, liable for the willful or malicious acts of its officers, as there is in the case of private corporations."Id. at 625.Of particular relevance to our current inquiry is Order of Hermits of St. Augustine v. County of Philadelphia, supra, which involved a Pennsylvania statute that authorized property owners within the county to bring damages actions against it for the destruction of their property by mob violence. [Footnote 22] The court observed that the "persons" against whom the statute authorized recovery included the county corporation, and it held that plaintiffs were entitled to compensatory damages as part of the county's duty to make reparation to its citizens for injuries sustained as a result of lawless violence. While noting that punitive damages would have been available against the rioters themselves, the court nonetheless held that such exemplary damages were not recoverable against the county.The rationale of these decisions was reiterated in numerous other common law jurisdictions. E.g., Wilson v. City of Wheeling, 19 W.Va. 323, 350 (1882) ("The city is not a spoliator, and should not be visited by vindictive or punitive damages"); City of Chicago v. Langlass, 52 Ill. at 259 ("But in fixing the compensation, the jury have no right to give vindictive or punitive damages, against a municipal corporation. Against such a body, they should only be compensatory, and not by way of punishment"); City Council of Montgomery v. Gilmer & Taylor, 33 Ala. at 132 ("The [municipal] corporation can not, upon any principle known Page 453 U. S. 263 to us, be responsible for the malice of its officers towards the plaintiffs"). In general, courts viewed punitive damages as contrary to sound public policy, because such awards would burden the very taxpayers and citizens for whose benefit the wrongdoer was being chastised. The courts readily distinguished between liability to compensate for injuries inflicted by a municipality's officers and agents and vindictive damages appropriate as punishment for the bad faith conduct of those same officers and agents. Compensation was an obligation properly shared by the municipality itself, whereas punishment properly applied only to the actual wrongdoers. The courts thus protected the public from unjust punishment, and the municipalities from undue fiscal constraints. [Footnote 23]Given that municipal immunity from punitive damages was well established at common law by 1871, we proceed on the familiar assumption that "Congress would have specifically so provided had it wished to abolish the doctrine." Pierson v. Ray, 386 U.S. at 386 U. S. 555. Nothing in the legislative debates suggests that, in enacting § 1 of the Civil Rights Act, Page 453 U. S. 264 the 42d Congress intended any such abolition. Indeed, the limited legislative history relevant to this issue suggests the opposite.Because there was virtually no debate on § 1 of the Act, the Court has looked to Congress' treatment of the amendment to the Act introduced by Senator Sherman as indicative of congressional attitudes toward the nature and scope of municipal liability. Monell, 436 U.S. at 436 U. S. 692, n. 57. [Footnote 24] Initially, it is significant that the Sherman amendment, as proposed, contemplated the award of no more than compensatory damages for injuries inflicted by mob violence. The amendment would not have exposed municipal governments to punitive damages; rather, it proposed that municipalities "shall be liable to pay full compensation to the person or persons damnified" by mob violence. Globe, at 749, 755 (emphasis added). [Footnote 25] Page 453 U. S. 265 That the exclusion of punitive damages was no oversight was confirmed by Representative Butler. one of the amendment's chief supporters, when he responded to a critical inquiry on the floor of the House:"The invalidity of the gentleman's argument is that he looks upon [the amendment] as a punishment for the county. Now, we do not look upon it as a punishment at all. It is a mutual insurance. We are there a community, and if there is any wrong done by our community, or by the inhabitants of our community, we will indemnify the injured party for that wrong. . . ."Id. at 792. We doubt that a Congress having no intention of permitting punitive awards against municipalities in the explicit context of the Sherman amendment would have meant to expose municipal bodies to such novel liability sub silentio under § 1 of the Act.Notwithstanding the compensatory focus of the amendment, its proposed extension of municipal liability met substantial resistance in Congress, resulting in its defeat on two separate occasions. [Footnote 26] In addition to the constitutional reservations broached by legislators, which the Court has discussed at some length in Monell, 436 U.S. at 436 U. S. 669-683, Members of both Chambers also expressed more practical objections. Notably, supporters as well as opponents of §1 voiced concern that this extension of public liability might place an unmanageable financial burden on local governments. [Footnote 27] Legislators Page 453 U. S. 266 also expressed apprehension that innocent taxpayers would be unfairly punished for the deeds of persons over whom they had neither knowledge nor control. [Footnote 28] Admittedly, both these objections were raised with particular reference to the threat of the expansive municipal liability embodied in the Sherman amendment. The two concerns are not without relevance to the present inquiry, however, in that they reflect policy considerations similar to those relied upon by the common law courts in rejecting punitive damages awards. We see no reason to believe that Congress' opposition to punishing innocent taxpayers and bankrupting local governments would have been less applicable with regard to the novel specter of punitive damages against municipalities.BFinding no evidence that Congress intended to disturb the settled common law immunity, we now must determine whether considerations of public policy dictate a contrary result. In doing so, we examine the objectives underlying punitive damages in general, and their relationship to the goals of § 1983.Punitive damages, by definition, are not intended to compensate the injured party, but rather to punish the tortfeasor Page 453 U. S. 267 whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct. See Restatement (Second) of Torts § 908 (1979); W. Prosser, Law of Torts 9-10 (4th ed.1971). Regarding retribution, it remains true that an award of punitive damages against a municipality "punishes" only the taxpayers, who took no part in the commission of the tort. These damages are assessed over and above the amount necessary to compensate the injured party. Thus, there is no question here of equitably distributing the losses resulting from official misconduct. Cf. Owen v. City of Independence, 445 U.S. at 445 U. S. 657. Indeed, punitive damages imposed on a municipality are, in effect, a windfall to a fully compensated plaintiff, and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers. [Footnote 29]Under ordinary principles of retribution, it is the wrongdoer himself who is made to suffer for his unlawful conduct. If a government official acts knowingly and maliciously to deprive others of their civil rights, he may become the appropriate object of the community's vindictive sentiments. See generally Silver v. Cormier, 529 F.2d 161, 163 (CA10 1976); Bucher v. Krause, 200 F.2d 576, 586-588 (CA7 1952), cert. denied, 345 U.S. 997 (1953). A municipality, however, can have no malice independent of the malice of its officials. Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself.To the extent that the purposes of § 1983 have any bearing on this punitive rationale, they do not alter our analysis. The Court previously has indicated that punitive damages Page 453 U. S. 268 might be awarded in appropriate circumstances in order to punish violations of constitutional rights, Carey v. Piphus, 435 U. S. 247, 435 U. S. 257, n. 11 (1978), but it never has suggested that punishment is as prominent a purpose under the statute as are compensation and deterrence. See, e.g., Owen v. City of Independence, 445 U.S. at 445 U. S. 651; Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 590-591 (1978); Carey v. Piphus, 435 U.S. at 435 U. S. 256-257. Whatever its weight, the retributive purpose is not significantly advanced, if it is advanced at all, by exposing municipalities to punitive damages.The other major objective of punitive damages awards is to prevent future misconduct. Respondent argues vigorously that deterrence is a primary purpose of § 1983, and that, because punitive awards against municipalities for the malicious conduct of their policymaking officials will induce voters to condemn official misconduct through the electoral process, the threat of such awards will deter future constitutional violations. Brief for Respondents 9-11. Respondent is correct in asserting that the deterrence of future abuses of power by persons acting under color of state law is an important purpose of § 1983. Owen v. City of Independence, 445 U.S. at 445 U. S. 651; Robertson v. Wegmann, 436 U.S. at 436 U. S. 591. It is in this context that the Court's prior statements contemplating punitive damages "in a proper' § 1983 action" should be understood. Carlson v. Green, 446 U. S. 14, 446 U. S. 22 (1980); Carey v. Piphus, 435 U.S. at 435 U. S. 257, n. 11. For several reasons, however, we conclude that the deterrence rationale of § 1983 does not justify making punitive damages available against municipalities.First, it is far from clear that municipal officials, including those at the policymaking level, would be deterred from wrongdoing by the knowledge that large punitive awards could be assessed based on the wealth of their municipality. Indemnification may not be available to the municipality under local law, and even if it were, officials likely will not be able themselves to pay such sizable awards. Thus, assuming, Page 453 U. S. 269 arguendo, that the responsible official is not impervious to shame and humiliation, the impact on the individual tortfeasor of this deterrence in the air is, at best, uncertain.There also is no reason to suppose that collective action, such as the discharge of offending officials who were appointed and the public excoriation of those who were elected, will not occur unless punitive damages are awarded against the municipality. The Court recently observed in a related context:"The more reasonable assumption is that responsible superiors are motivated not only by concern for the public fisc, but also by concern for the Government's integrity."Carlson v. Green, 446 U.S. at 446 U. S. 21. This assumption is no less applicable to the electorate at large. And if additional protection is needed, the compensatory damages that are available against a municipality may themselves induce the public to vote the wrongdoers out of office.Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute directly advances the public's interest in preventing repeated constitutional deprivations. [Footnote 30] In our view, this provides sufficient protection against the prospect that a public official may Page 453 U. S. 270 commit recurrent constitutional violations by reason of his office. The Court previously has found, with respect to such violations, that a damages remedy recoverable against individuals is more effective as a deterrent than the threat of damages against a government employer. Carlson v. Green, 446 U.S. at 446 U. S. 21. We see no reason to depart from that conclusion here, especially since the imposition of additional penalties would most likely fall upon the citizen taxpayer.Finally, although the benefits associated with awarding punitive damages against municipalities under § 1983 are of doubtful character, the costs may be very real. In light of the Court's decision last Term in Maine v. Thiboutot, 448 U. S. 1 (1980), the § 1983 damages remedy may now be available for violations of federal statutory, as well as constitutional, law. But cf. Middlesex County Sewerage Authority v. National Sea Clammers Assn., ante 453 U. S. 1. Under this expanded liability, municipalities and other units of state and local government face the possibility of having to assure compensation for persons harmed by abuses of governmental authority covering a large range of activity in everyday life. To add the burden of exposure for the malicious conduct of individual government employees may create a serious risk to the financial integrity of these governmental entities.The Court has remarked elsewhere on the broad discretion traditionally accorded to juries in assessing the amount of punitive damages. Electrical Workers v. Foust, 442 U. S. 42, 442 U. S. 551 (1979); Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 349-350 (1974). Because evidence of a tortfeasor's wealth is traditionally admissible as a measure of the amount of punitive damages that should be awarded, [Footnote 31] the unlimited taxing power of a municipality may have a prejudicial impact on the jury, in effect encouraging it to impose a sizable award. The impact of such a windfall recovery is likely to be both unpredictable Page 453 U. S. 271 and, at times, substantial, and we are sensitive to the possible strain on local treasuries, and therefore on services available to the public at large. [Footnote 32] Absent a compelling reason for approving such an award, not present here, we deem it unwise to inflict the risk.IVIn sum, we find that considerations of history and policy do not support exposing a municipality to punitive damages for the bad faith actions of its officials. Because absolute immunity from such damages obtained at common law and was undisturbed by the 42d Congress, and because that immunity is compatible with both the purposes of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.S.C. § 1983. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCity of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)City of Newport v. Fact Concerts, Inc.No. 8396Argued March 31, 1981Decided June 26, 1981453 U.S. 247SyllabusRespondents (an organization licensed by petitioner city to present certain musical concerts, and a promoter of the concerts) brought suit in Federal District Court against the city and city officials. Alleging, inter alia, that the city's cancellation of the license amounted to a violation of their constitutional rights under color of.state law, respondents sought compensatory and punitive damages under 42 U.S.C. § 183. Without objection, the court gave an instruction authorizing the jury to award punitive damages against each defendant, including the city. Verdicts were returned for respondents, which in addition to awarding compensatory damages, also awarded punitive damages against both the individual officials and the city. The city moved for a new trial, arguing for the first time that punitive damages could not be awarded against a municipality under § 1983. Although noting that the challenge to the instruction was untimely under Federal Rule of Civil Procedure 51, the District Court considered and rejected the city's substantive legal arguments on their merits. The Court of Appeals affirmed, finding that the city's failure to object to the charge at trial, as required by Rule 51, could not be overlooked on the theory that the charge itself was plain error. The court also expressed a belief that the challenged instruction might not have been error at all, and identified the "distinct possibility" that municipalities could be liable for punitive damages under § 1983 in the proper circumstances.Held:1. The city's failure to object to the charge at trial does not foreclose this Court from reviewing the punitive damages issue. Because the District Court adjudicated the merits, and the Court of Appeals did not disagree with that adjudication, no interests in fair and effective trial administration advanced by Rule 51 would be served if this Court refused to reach the merits. Nor should review here be limited to the restrictive "plain error" standard. The contours of municipal liability under § 1983 are currently in a state of evolving definition and uncertainty, and the very novelty of the legal issue at stake counsels unconstricted review. In addition to being novel, the punitive damages question Page 453 U. S. 248 is also important, and appears likely to recur in § 1983 litigation against municipalities. Pp. 453 U. S. 255-257.2. A municipality is immune from punitive damages under § 1983. Pp. 453 U. S. 258-271.(a) In order to conclude that Congress meant to incorporate a particular immunity as an affirmative defense in § 1983 litigation, a court must undertake careful inquiry into considerations of both history and public policy. Pp. 453 U. S. 258-259.(b) In 1871, when Congress enacted what is now § 1983, it was generally understood that a municipality was to be treated as a natural person subject to suit for a wide range of tortious activity, but this understanding did not extend to the award of punitive damages at common law. Indeed, common law courts consistently and expressly declined to award punitive damages against municipalities. Nothing in the legislative history suggests that, in enacting § 1 of the Civil Rights Act of 1871, Congress intended to abolish the doctrine of municipal immunity from punitive damages. If anything, the relevant history suggests the opposite. Pp. 453 U. S. 259-266.(c) Considerations of public policy do not support exposing a municipality to punitive damages for the malicious or reckless conduct of its officials. Neither the retributive nor the deterrence objectives of punitive damages and of § 1983 would be significantly advanced by holding municipalities liable for such damages. Pp. 453 U. S. 266-271.626 F.2d 1060, vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 453 U. S. 271. Page 453 U. S. 249

1970_69-5035

MR. JUSTICE WHITE delivered the opinion of the Court.Under both the Louisiana Constitution and Code of Criminal Procedure, criminal cases in which the punishment is necessarily at hard labor are tried to a jury of 12, and the vote of nine jurors is sufficient to return either a guilty or not guilty verdict. [Footnote 1] The principal question Page 406 U. S. 358 in this case is whether these provisions allowing less than unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.IAppellant Johnson was arrested at his home on January 20, 1968. There was no arrest warrant, but the victim of an armed robbery had identified Johnson from photographs as having committed the crime. He was then identified at a lineup, at which he had counsel, by the victim of still another robbery. The latter crime is involved in this case. Johnson pleaded not guilty, was tried on May 14, 1968, by a 12-man jury, and was convicted by a nine-to-three verdict. His due process and equal protection challenges to the Louisiana constitutional and statutory provisions were rejected by the Louisiana courts, 255 La. 314, 230 So. 2d 825 (1970), and he appealed here. We noted probable jurisdiction. 400 U.S. 900 (1970). Conceding that, under Duncan v. Louisiana, 391 U. S. 145 (1968), the Sixth Amendment is not applicable to his case, see DeStefano v. Woods, 392 U. S. 631 (1968), appellant presses his equal protection Page 406 U. S. 359 and due process claims, together with a Fourth Amendment claim also rejected by the Louisiana Supreme Court. We affirm.IIAppellant argues that, in order to give substance to the reasonable doubt standard, which the State, by virtue of the Due Process Clause of the Fourteenth Amendment, must satisfy in criminal cases, see In re Winship, 397 U. S. 358, 397 U. S. 363-364 (1970), that clause must be construed to require a unanimous jury verdict in all criminal cases. In so contending, appellant does not challenge the instructions in this case. Concededly, the jurors were told to convict only if convinced of guilt beyond a reasonable doubt. Nor is there any claim that, if the verdict in this case had been unanimous, the evidence would have been insufficient to support it. Appellant focuses instead on the fact that less than all jurors voted to convict, and argues that, because three voted to acquit, the reasonable doubt standard has not been satisfied, and his conviction is therefore infirm.We note at the outset that this Court has never held jury unanimity to be a requisite of due process of law. Indeed, the Court has more than once expressly said that,"[i]n criminal cases, due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict."Jordan v. Massachusetts, 225 U. S. 167, 225 U. S. 176 (1912) (dictum). Accord, Maxwell v. Dow, 176 U. S. 581, 176 U. S. 602, 605 (1900) (dictum). These statements, moreover, coexisted with cases indicating that proof of guilt beyond a reasonable doubt is implicit in constitutions recognizing "the fundamental principles that are deemed essential for the protection of life and liberty." Davis v. United States, 160 U. S. 469, 160 U. S. 488 (1895). See also Leland v. Oregon, 343 U. S. 790, 343 U. S. 802-803 (1952) (dissenting opinion); Brinegar Page 406 U. S. 360 v. United States, 338 U. S. 160, 338 U. S. 174 (1949); Coffin v. United States, 156 U. S. 432, 156 U. S. 453-460 (1895). [Footnote 2]Entirely apart from these cases, however, it is our view that the fact of three dissenting votes to acquit raises no question of constitutional substance about either the integrity or the accuracy of the majority verdict of guilt. Appellant's contrary argument breaks down into two parts, each of which we shall consider separately: first, that nine individual jurors will be unable to vote conscientiously in favor of guilt beyond a reasonable doubt when three of their colleagues are arguing for acquittal, and, second, that guilt cannot be said to have been proved beyond a reasonable doubt when one or more of a jury's members at the conclusion of deliberation still possess such a doubt. Neither argument is persuasive.Numerous cases have defined a reasonable doubt as one "based on reason which arises from the evidence or lack of evidence.'" United States v. Johnson, 343 F.2d 5, 6 n. 1 (CA2 1965). Accord, e.g., Bishop v. United States, 71 App.D.C. 132, 138, 107 F.2d 297, 303 (1939); United States v. Schneiderman, 106 F. Supp. 906, 927 (SD Cal.1952); United States v. Haupt, 47 F. Supp. 836, 840 (ND Ill. 1942), rev'd on other grounds, 136 F.2d 661 (CA7 1943). In Winship, supra, the Court recognized this evidentiary standard as "`impress[ing] on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.'" 397 U.S. at 397 U. S. 364 (citation omitted). In considering the first branch Page 406 U. S. 361 of appellant's argument, we can find no basis for holding that the nine jurors who voted for his conviction failed to follow their instructions concerning the need for proof beyond such a doubt, or that the vote of any one of the nine failed to reflect an honest belief that guilt had been so proved. Appellant, in effect, asks us to assume that, when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acquittal which, if pursued, might persuade members of the majority to acquit. But the mere fact that three jurors voted to acquit does not, in itself, demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary, it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt. Indeed, at this point, a"dissenting juror should consider whether his doubt was a reasonable one . . . [when it made] no impression upon the minds of so many Page 406 U. S. 362 men, equally honest, equally intelligent with himself."Allen v. United States, 164 U. S. 492, 164 U. S. 501 (1896). Appellant offers no evidence that majority jurors simply ignore the reasonable doubts of their colleagues or otherwise act irresponsibly in casting their votes in favor of conviction, and before we alter our own longstanding perceptions about jury behavior and overturn a considered legislative judgment that unanimity is not essential to reasoned jury verdicts, we must have some basis for doing so other than unsupported assumptions.We conclude, therefore, that, as to the nine jurors who voted to convict, the State satisfied its burden of proving guilt beyond any reasonable doubt. The remaining question under the Due Process Clause is whether the vote of three jurors for acquittal can be said to impeach the verdict of the other nine and to demonstrate that guilt was not in fact, proved beyond such doubt. We hold that it cannot.Of course, the State's proof could perhaps be regarded as more certain if it had convinced all 12 jurors, instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors. But the fact remains that nine jurors -- a substantial majority of the jury -- were convinced by the evidence. In our view, disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of guilt. That rational men disagree is not, in itself, equivalent to a failure of proof by the State, nor does it indicate infidelity to the reasonable doubt standard. Jury verdicts finding guilt beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt, see United States v. Quarles, 387 F.2d 551, 554 (CA4 1967); Bell v. United States, 185 F.2d 302, 310 (CA4 1950); even though the trial judge might not have Page 406 U. S. 363 reached the same conclusion as the jury, see Takahashi v. United States, 143 F.2d 118, 122 (CA9 1944); and even though appellate judges are closely divided on the issue whether there was sufficient evidence to support a conviction. See United States v. Johnson, 140 U.S.App.D.C. 54, 60, 433 F.2d 1160, 1166 (1970); United States v. Manuel-Baca, 421 F.2d 781, 783 (CA9 1970). That want of jury unanimity is not to be equated with the existence of a reasonable doubt emerges even more clearly from the fact that, when a jury in a federal court, which operates under the unanimity rule and is instructed to acquit a defendant if it has a reasonable doubt about his guilt, see Holt v. United States, 218 U. S. 245, 218 U. S. 253 (1910); Agnew v. United States, 165 U. S. 36, 165 U. S. 51 (1897); W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 8.01 (1965), cannot agree unanimously upon a verdict, the defendant is not acquitted, but is merely given a new trial. Downum v. United States, 372 U. S. 734, 372 U. S. 736 (1963); Dreyer v. Illinois, 187 U. S. 71, 187 U. S. 85-86 (1902); United States v. Perez, 9 Wheat. 579, 22 U. S. 580 (1824). If the doubt of a minority of jurors indicates the existence of a reasonable doubt, it would appear that a defendant should receive a directed verdict of acquittal, rather than a retrial. We conclude, therefore, that verdicts rendered by nine out of 12 jurors are not automatically invalidated by the disagreement of the dissenting three. Appellant was not deprived of due process of law.IIIAppellant also attacks as violative of the Equal Protection Clause the provisions of Louisiana law requiring unanimous verdicts in capital and five-man jury cases, but permitting less than unanimous verdicts in cases such as his. We conclude, however, that the Louisiana statutory scheme serves a rational purpose, and is not subject to constitutional challenge. Page 406 U. S. 364In order to "facilitate, expedite, and reduce expense in the administration of criminal justice," State v. Lewis, 129 La. 800, 804, 56 So. 893, 894 (1911), Louisiana has permitted less serious crimes to be tried by five jurors with unanimous verdicts, more serious crimes have required the assent of nine of 12 jurors, and, for the most serious crimes, a unanimous verdict of 12 jurors is stipulated. In appellant's case, nine jurors, rather than five or 12, were required for a verdict. We discern nothing invidious in this classification. We have held that the States are free under the Federal Constitution to try defendants with juries of less than 12 men. Williams v. Florida, 399 U. S. 78 (1970). Three jurors here voted to acquit, but, from what we have earlier said, this does not demonstrate that appellant was convicted on a lower standard of proof. To obtain a conviction in any of the categories under Louisiana law, the State must prove guilt beyond reasonable doubt, but the number of jurors who must be so convinced increases with the seriousness of the crime and the severity of the punishment that may be imposed. We perceive nothing unconstitutional or invidiously discriminatory, however, in a State's insisting that its burden of proof be carried with more jurors where more serious crimes or more severe punishments are at issue.Appellant nevertheless insists that dispensing with unanimity in his case disadvantaged him as compared with those who commit less serious or capital crimes. With respect to the latter, he is correct; the State does make conviction more difficult by requiring the assent of all 12 jurors. Appellant might well have been ultimately acquitted had he committed a capital offense. But, as we have indicated, this does not constitute a denial of equal protection of the law; the State may treat capital offenders differently without violating the constitutional rights of those charged with lesser crimes. As to the crimes triable by a five-man jury, if appellant's Page 406 U. S. 365 position is that it is easier to convince nine of 12 jurors than to convince all of five, he is simply challenging the judgment of the Louisiana Legislature. That body obviously intended to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment. We remain unconvinced by anything appellant has presented that this legislative judgment was defective in any constitutional sense.IVAppellant also urges that his nighttime arrest without a warrant was unlawful in the absence of a valid excuse for failing to obtain a warrant, and further, that his subsequent lineup identification was a forbidden fruit of the claimed invasion of his Fourth Amendment rights. The validity of Johnson's arrest, however, is beside the point here, for it is clear that no evidence that might properly be characterized as the fruit of an illegal entry and arrest was used against him at his trial. Prior to the lineup, at which Johnson was represented by counsel, he was brought before a committing magistrate to advise him of his rights and set bail. At the time of the lineup, the detention of the appellant was under the authority of this commitment. Consequently, the lineup was conducted not by "exploitation" of the challenged arrest, but "by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U. S. 471, 371 U. S. 488 (1963).The judgment of the Supreme Court of Louisiana is thereforeAffirmed

U.S. Supreme CourtJohnson v. Louisiana, 406 U.S. 356 (1972)Johnson v. LouisianaNo. 69-5035Argued March 1, 1971Reargued January 10, 1972Decided May 22, 1972406 U.S. 356SyllabusA warrantless arrest for robbery was made of appellant at his home on the basis of identification from photographs, and he was committed by a magistrate. Thereafter he appeared in a lineup, at which he was represented by counsel, and was identified by the victim of another robbery. He was tried for the latter offense before a 12-man jury and convicted by a nine-to-three verdict, as authorized by Louisiana law in cases where the crime is necessarily punishable at hard labor. Other state law provisions require unanimity for five-man jury trials of offenses in which the punishment may be at hard labor and for 12-man jury trials of capital cases. The Louisiana Supreme Court affirmed the conviction, rejecting appellant's challenge to the jury trial provisions as violative of due process and equal protection and his claim that the lineup identification was a forbidden fruit of an invasion of appellant's Fourth Amendment rights. Appellant conceded that, under Duncan v. Louisiana, 391 U. S. 145, which was decided after his trial began and which has no retroactive effect, the Sixth Amendment does not apply to his case.Held:1. The provisions of Louisiana law requiring less than unanimous jury verdicts in criminal cases do not violate the Due Process Clause for failure to satisfy the reasonable doubt standard. Pp. 406 U. S. 359-363.(a) The mere fact that three jurors vote to acquit does not mean that the nine who vote to convict have ignored their instructions concerning proof beyond a reasonable doubt, or that they do not honestly believe that guilt has been thus proved. Pp. 406 U.S. 360-362.(b) Want of jury unanimity does not alone establish reasonable doubt. Pp. 406 U. S. 362-363.2. The Louisiana legal scheme providing for unanimous verdicts in capital and five-man jury cases, but for less than unanimous verdicts otherwise, and which varies the difficulty of proving guilt with the gravity of the offense, was designed to serve the rational purposes of "facilitat[ing], expedit[ing], and reduc[ing] expense in the administration of justice," and does not constitute an invidious classification violative of equal protection. Pp. 406 U. S. 363-365. Page 406 U. S. 3573. Since no evidence constituting the fruit of an illegal arrest was used at appellant's trial, the validity of his arrest is not at issue, and the lineup was conducted not by the "exploitation" of the arrest, but under the authority of appellant's commitment by the magistrate, which purged the lineup procedure of any "primary taint." P. 406 U. S. 365.255 La. 314, 230 So. 2d 825, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., post, p. 406 U. S. 365, and POWELL, J., post, p. 406 U. S. 366, filed concurring opinions. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 406 U. S. 380. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 406 U. S. 395. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 406 U. S. 397. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 406 U. S. 399.

1981_80-1666

JUSTICE BRENNAN delivered the opinion of the Court.The principal question presented by this appeal is whether a Minnesota statute, imposing certain registration and reporting requirements upon only those religious organizations that solicit more than fifty percent of their funds from nonmembers, discriminates against such organizations in violation of the Establishment Clause of the First Amendment. [Footnote 1]IAppellants are John R. Larson, Commissioner of Securities, and Warren Spannaus, Attorney General, of the State of Minnesota. They are, by virtue of their offices, responsible for the implementation and enforcement of the Minnesota charitable solicitations Act, Minn.Stat. §§ 309.50-309.61 (1969 and Supp.1982). This Act, in effect since 1961, provides for a system of registration and disclosure respecting Page 456 U. S. 231 charitable organizations, and is designed to protect the contributing public and charitable beneficiaries against fraudulent practices in the solicitation of contributions for purportedly charitable purposes. A charitable organization subject to the Act must register with the Minnesota Department of Commerce before it may solicit contributions within the State. § 309.52. With certain specified exceptions, all charitable organizations registering under § 309.52 must file an extensive annual report with the Department, detailing, inter alia, their total receipts and income from all sources, their costs of management, fundraising, and public education, and their transfers of property or funds out of the State, along with a description of the recipients and purposes of those transfers. § 309.53. The Department is authorized by the Act to deny or withdraw the registration of any charitable organization if the Department finds that it would be in "the public interest" to do so and if the organization is found to have engaged in fraudulent, deceptive, or dishonest practices. § 309.532, subd. 1 (Supp.1982). Further, a charitable organization is deemed ineligible to maintain its registration under the Act if it expends or agrees to expend an "unreasonable amount" for management, general, and fundraising costs, with those costs being presumed unreasonable if they exceed thirty percent of the organization's total income and revenue. § 309.555, subd. 1a (Supp.1982).From 1961 until 1978, all "religious organizations" were exempted from the requirements of the Act. [Footnote 2] But effective March 29, 1978, the Minnesota Legislature amended the Act so as to include a "fifty percent rule" in the exemption provision covering religious organizations. § 309.515, subd. 1(b). This fifty percent rule provided that only those religious organizations that received more than half of their total contributions Page 456 U. S. 232 from members or affiliated organizations would remain exempt from the registration and reporting requirements of the Act. 1978 Minn. Laws, ch. 601, § 5. [Footnote 3]Shortly after the enactment of § 309.515, subd. 1(b), the Department notified appellee Holy Spirit Association for the Unification of World Christianity (Unification Church) that it was required to register under the Act because of the newly enacted provision. [Footnote 4] Appellees Valente, Barber, Haft, and Korman, claiming to be followers of the tenets of the Unification Page 456 U. S. 233 Church, responded by bringing the present action in the United States District Court for the District of Minnesota. Appellees sought a declaration that the Act, on its face and as applied to them through § 309.515, subd. 1(b)'s fifty percent rule, constituted an abridgment of their First Amendment rights of expression and free exercise of religion, as well as a denial of their right to equal protection of the laws, guaranteed by the Fourteenth Amendment; [Footnote 5] appellees also sought Page 456 U. S. 234 temporary and permanent injunctive relief. Appellee Unification Church was later joined as a plaintiff by stipulation of the parties, and the action was transferred to a United States Magistrate.After obtaining a preliminary injunction, [Footnote 6] appellees moved for summary judgment. Appellees' evidentiary support for this motion included a "declaration" of appellee Haft, which described in some detail the origin, "religious principles," and practices of the Unification Church. App. A-7 - A-14. The declaration stated that among the activities emphasized by the Church were "door-to-door and public-place proselytizing and solicitation of funds to support the Church," id. at A, and that the application of the Act to the Church through § 309.515, subd. 1(b)'s fifty percent rule would deny its members their "religious freedom," id. at A-14. Appellees also argued that, by discriminating among religious organizations, § 309.515, subd. 1(b)'s fifty percent rule violated the Establishment Clause.Appellants replied that the Act did not infringe appellees' freedom to exercise their religious beliefs. Appellants sought to distinguish the present case from Murdock v. Pennsylvania, 319 U. S. 105 (1943), where this Court invalidated a municipal ordinance that had required the licensing of Jehovah's Witnesses who solicited donations in exchange for Page 456 U. S. 235 religious literature, by arguing that, unlike the activities of the petitioners in Murdock, appellees' solicitations bore no substantial relationship to any religious expression, and that they were therefore outside the protection of the First Amendment. [Footnote 7] Appellants also contended that the Act did not violate the Establishment Clause. Finally, appellants argued that appellees were not entitled to challenge the Act until they had demonstrated that the Unification Church was a religion and that its fundraising activities were a religious practice.The Magistrate determined, however, that it was not necessary for him to resolve the questions of whether the Unification Church was a religion and whether appellees' activities were religiously motivated in order to reach the merits of appellees' claims. Rather, he found that the "overbreadth" doctrine gave appellees standing to challenge the Act's constitutionality. On the merits, the Magistrate held that the Act was facially unconstitutional with respect to religious organizations, and was therefore entirely void as to such organizations, because § 309.515, subd. 1(b)'s fifty percent rule failed the second of the three Establishment Clause "tests" set forth by this Court in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613 (1971). [Footnote 8] The Magistrate also held on due Page 456 U. S. 236 process grounds that certain provisions of the Act were unconstitutional as applied to any groups or persons claiming the religious organization exemption from the Act. The Magistrate therefore recommended, inter alia, that appellees be granted the declarative and permanent injunctive relief that they had sought -- namely, a declaration that the Act was unconstitutional as applied to religious organizations and their members, and an injunction against enforcement of the Act as to any religious organization. Accepting these recommendations, the District Court entered summary judgment in favor of appellees on these issues. [Footnote 9]On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. 637 F.2d 562 (1981). On the issue of standing, the Court of Appeals affirmed the District Court's application of the overbreadth doctrine, citing Village of Schaumburg v. Citizens for Better Environment, 444 U. S. 620, 444 U. S. 634 (1980), for Page 456 U. S. 237 the proposition that"a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court."637 F.2d at 564-565. On the merits, the Court of Appeals affirmed the District Court's holding that the "inexplicable religious classification" embodied in the fifty percent rule of § 309.515, subd. 1(b), violated the Establishment Clause. [Footnote 10] Id. at 565-570. Applying the Minnesota rule of severability, the Court of Appeals also held that § 309.515, subd. 1(b), as a whole should not be stricken from the Act, but rather that the fifty percent rule should be stricken from § 309.515, subd. 1(b). Id. at 570. But the court disagreed with the District Court's conclusion that appellees and others should enjoy the religious organization exemption from the Act merely by claiming to be such organizations: the court held that proof of religious organization status was required in order to gain the exemption, and left the question of appellees' status "open . . . for further development." Id. at 570-571. The Court of Appeals accordingly vacated the judgment of the District Court and remanded the action for entry of a modified injunction and for further appropriate proceedings. Id. at 571. [Footnote 11] We noted probable jurisdiction. 452 U.S. 904 (1981). Page 456 U. S. 238IIAppellants argue that appellees are not entitled to be heard on their Establishment Clause claims. Their rationale for this argument has shifted, however, as this litigation has progressed. Appellants' position in the courts below was that the Unification Church was not a religion, and, more importantly, that appellees' solicitations were not connected with any religious purpose. From these premises, appellants concluded that appellees were not entitled to raise their Establishment Clause claims until they had demonstrated that their activities were within the protection of that Clause. The courts below rejected this conclusion, instead applying the overbreadth doctrine in order to allow appellees to raise their Establishment Clause claims. In this Court, appellants have taken an entirely new tack. They now argue that the Unification Church is not a "religious organization" within the meaning of Minnesota's charitable solicitations Act, and that the Church therefore would not be entitled to an exemption under § 309.515, subd. 1(b), even if the fifty percent rule were declared unconstitutional. From this new premise, appellants conclude that the courts below erred in invalidating § 309.515, subd. 1(b)'s fifty percent rule without first requiring appellees to demonstrate that they would have been able to maintain their exempt status but for that rule, and thus that its adoption had caused them injury in fact. We have considered both of appellants' rationales, and hold that neither of them has merit."The essence of the standing inquiry is whether the parties seeking to invoke the court's jurisdiction have 'alleged such a personal stake in the outcome of the controversy as to assure Page 456 U. S. 239 that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'"Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59, 438 U. S. 72 (1978), quoting Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). This requirement of a "personal stake" must consist of "a distinct and palpable injury . . .' to the plaintiff," Duke Power Co., supra at 438 U. S. 72, quoting Warth v. Seldin, 422 U. S. 490, 422 U. S. 501 (1975), and "a `fairly traceable' causal connection between the claimed injury and the challenged conduct," Duke Power Co., supra at 438 U. S. 72, quoting Arlinton Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 261 (1977). Application of these constitutional standards to the record before us and the factual findings of the District Court convince us that the Art. III requirements for standing are plainly met by appellees.Appellants argue in this Court that the Unification Church is not a "religious organization" within the meaning of the Act, and therefore that appellees cannot demonstrate injury in fact. We note at the outset, however, that, in the years before 1978, the Act contained a general exemption provision for all religious organizations, and that, during those years, the Unification Church was not required by the State to register and report under the Act. It was only in 1978, shortly after the addition of the fifty percent rule to the religious organization exemption, that the State first attempted to impose the requirements of the Act upon the Unification Church. And when the State made this attempt, it deliberately chose to do so in express and exclusive reliance upon the newly enacted fifty percent rule of § 309.515, subd. 1(b). See n 4, supra. [Footnote 12] The present suit was initiated by appellees in direct response to that attempt by the State to force the Church's registration. It is thus plain that appellants' Page 456 U. S. 240 stated rationale for the application of the Act to appellees was that § 309.515, subd. 1(b), did apply to the Unification Church. [Footnote 13] But § 309.515, subd. 1(b), by its terms, applies only to religious organizations. It follows, therefore, that an essential premise of the State's attempt to require the Unification Church to register under the Act by virtue of the fifty percent rule in § 309.515, subd. 1(b), is that the Church is a religious organization. It is logically untenable for the State to take the position that the Church is not such an organization, because that position destroys an essential premise of the exercise of statutory authority at issue in this suit.In the courts below, the State joined issue precisely on the premise that the fifty percent rule of § 309.515, subd. 1(b), was sufficient authority, in itself, to compel appellees' registration. The adoption of that premise precludes the position Page 456 U. S. 241 that the Church is not a religious organization. And it remains entirely clear that, if we were to uphold the constitutionality of the fifty percent rule, the State would, without more, insist upon the Church's registration. In this Court, the State has changed its position, and purports to find independent bases for denying the Church an exemption from the Act. Considering the development of this case in the courts below, and recognizing the premise inherent in the State's attempt to apply the fifty percent rule to appellees, we do not think that the State's change of position renders the controversy between these parties any less concrete. The fact that appellants chose to apply § 309.515, subd. 1(b), and its fifty percent rule as the sole statutory authority requiring the Church to register under the Act compels the conclusion that, at least for purposes of this suit challenging that State application, the Church is indeed a religious organization within the meaning of the Act.With respect to the question of injury in fact, we again take as the starting point of our analysis the fact that the State attempted to use § 309.515, subd. 1(b)'s fifty percent rule in order to compel the Unification Church to register and report under the Act. That attempted use of the fifty percent rule as the State's instrument of compulsion necessarily gives appellees standing to challenge the constitutional validity of the rule. The threatened application of § 309.515, subd. 1(b), and its fifty percent rule to the Church surely amounts to a distinct and palpable injury to appellees: it disables them from soliciting contributions in the State of Minnesota unless the Church complies with registration and reporting requirements that are hardly de minimis. [Footnote 14] Just as surely, there is a fairly traceable causal connection between the claimed injury and the challenged conduct -- here, between the claimed disabling and the threatened application of § 309.515, subd. 1(b), and its fifty percent rule. Page 456 U. S. 242Of course, the Church cannot be assured of a continued religious organization exemption even in the absence of the fifty percent rule. See n 30, infra. Appellees have not yet shown an entitlement to the entirety of the broad injunctive relief that they sought in the District Court -- namely, a permanent injunction barring the State from subjecting the Church to the registration and reporting requirements of the Act. But that fact by no means detracts from the palpability of the particular and discrete injury caused to appellees by the State's threatened application of § 309.515, subd. 1(b)'s fifty percent rule. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 429 U. S. 261-262. The Church may indeed be compelled, ultimately, to register under the Act on some ground other than the fifty percent rule, and while this fact does affect the nature of the relief that can properly be granted to appellees on the present record, it does not deprive this Court of jurisdiction to hear the present case. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 429 U. S. 287 (1977). In sum, contrary to appellants' suggestion, appellees have clearly demonstrated injury in fact.JUSTICE REHNQUIST's dissent attacks appellees' Art. III standing by arguing that appellees "have failed to show that a favorable decision of this Court will redress the injuries of which they complain." Post at 456 U. S. 270. This argument follows naturally from the dissent's premise that the only meaningful relief that can be given to appellees is a total exemption from the requirements of the Act. See post at 456 U. S. 264, 456 U. S. 265, 456 U. S. 270. But the argument, like the premise, is incorrect. This litigation began after the State attempted to compel the Church to register and report under the Act solely on the authority of § 309.515, subd. 1(b)'s fifty percent rule. If that rule is declared unconstitutional, as appellees have requested, then the Church cannot be required to register and report under the Act by virtue of that rule. Since that rule was the sole basis for the State's attempt to compel registration that gave Page 456 U. S. 243 rise to the present suit, a discrete injury of which appellees now complain will indeed be completely redressed by a favorable decision of this Court.Furthermore, if the fifty percent rule of § 309.515, subd. 1(b), is declared unconstitutional, then the Church cannot be compelled to register and report under the Act unless the Church is determined not to be a religious organization. And, as the Court of Appeals below observed:"[A] considerable burden is on the state in questioning a claim of a religious nature. Strict or narrow construction of a statutory exemption for religious organizations is not favored. Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C. Cir.1957, Burger, J.)."637 F.2d at 570. At the very least, then, a declaration that § 309.515, subd. 1(b)'s fifty percent rule is unconstitutional would put the State to the task of demonstrating that the Unification Church is not a religious organization within the meaning of the Act -- and such a task is surely more burdensome than that of demonstrating that the Church's proportion of nonmember contributions exceeds fifty percent. Thus, appellees will be given substantial and meaningful relief by a favorable decision of this Court. [Footnote 15] Page 456 U. S. 244Since we conclude that appellees have established Art. III standing, we turn to the merits of the case. [Footnote 16]IIIAThe clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. Before the Revolution, religious establishments of differing denominations were common throughout the Colonies. [Footnote 17] But the Revolutionary generation emphatically disclaimed that European legacy, and "applied the logic of secular liberty to the condition of religion and the churches." [Footnote 18] If Parliament had lacked the authority to tax unrepresented colonists, then by the same token the newly independent States should be powerless to tax their citizens for the support of a denomination to which they did not belong. [Footnote 19] The Page 456 U. S. 245 force of this reasoning led to the abolition of most denominational establishments at the state level by the 1780's, [Footnote 20] and led ultimately to the inclusion of the Establishment Clause in the First Amendment in 1791. [Footnote 21]This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause. Madison once noted:"Security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and in the other in the multiplicity of sects. [Footnote 22]"Madison's vision -- freedom for all religion being guaranteed by free competition between religions -- naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators -- and voters -- are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations. As Justice Jackson noted in another context,"there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority Page 456 U. S. 246 must be imposed generally."Railway Express Agency, Inc. v. New York, 336 U. S. 106, 336 U. S. 112 (1949) (concurring opinion).Since Everson v. Board of Education, 330 U. S. 1 (1947), this Court has adhered to the principle, clearly manifested in the history and logic of the Establishment Clause, that no State can "pass laws which aid one religion" or that "prefer one religion over another." Id. at 330 U. S. 15. This principle of denominational neutrality has been restated on many occasions. In Zorach v. Clauson, 343 U. S. 306 (1952), we said that "[t]he government must be neutral when it comes to competition between sects." Id. at 343 U. S. 314. In Epperson v. Arkansas, 393 U. S. 97 (196), we stated unambiguously:"The First Amendment mandates governmental neutrality between religion and religion. . . . The State may not adopt programs or practices . . . which 'aid or oppose' any religion. . . . This prohibition is absolute."Id. at 393 U. S. 104, 393 U. S. 106, citing Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 225 (1963). And Justice Goldberg cogently articulated the relationship between the Establishment Clause and the Free Exercise Clause when he said that"[t]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects . . . and that it work deterrence of no religious belief."Abington School District, supra, at 374 U. S. 305. In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.BThe fifty percent rule of § 309.515, subd. 1(b), clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents. [Footnote 23] Consequently, Page 456 U. S. 247 that rule must be invalidated unless it is justified by a compelling governmental interest, cf. Widmar v. Vincent, 454 U. S. 263, 454 U. S. 269-270 (1981), and unless it is closely fitted to further that interest, Murdock v. Pennsylvania, 319 U. S. 105, 319 U. S. 116-117 (1943). With that standard of review in mind, we turn to an examination of the governmental interest asserted by appellants. Page 456 U. S. 248Appellants assert, and we acknowledge, that the State of Minnesota has a significant interest in protecting its citizens from abusive practices in the solicitation of funds for charity, and that this interest retains importance when the solicitation is conducted by a religious organization. We thus agree with the Court of Appeals, 637 F.2d at 567, that the Act, "viewed as a whole, has a valid secular purpose," and we will therefore assume, arguendo, that the Act generally is addressed to a sufficiently "compelling" governmental interest. But our inquiry must focus more narrowly, upon the distinctions drawn by § 309.515, subd. 1(b), itself. Appellants must demonstrate that the challenged fifty percent rule is closely fitted to further the interest that it assertedly serves.Appellants argue that § 309.515, subd. 1(b)'s distinction between contributions solicited from members and from nonmembers is eminently sensible. They urge that members are reasonably assumed to have significant control over the solicitation of contributions from themselves to their organization, and over the expenditure of the funds that they contribute, as well. Further, appellants note that, as a matter of Minnesota law, members of organizations have greater access than nonmembers to the financial records of the organization. Appellants conclude:"Where the safeguards of membership funding do not exist, the need for public disclosure is obvious. . . ."". . . As public contributions increase as a percentage of total contributions, the need for public disclosure increases. . . . The particular point at which public disclosure should be required . . . is a determination for the legislature. In this case, the Act's 'majority' distinction is a compelling point, since it is at this point that the organization becomes predominantly public-funded."Brief for Appellants 29.We reject the argument, for it wholly fails to justify the only aspect of § 309.515, subd. 1(b), under attack -- the selective fifty percent rule. Appellants' argument is based on three distinct premises: that members of a religious organization Page 456 U. S. 249 can and will exercise supervision and control over the organization's solicitation activities when membership contributions exceed fifty percent; that membership control, assuming its existence, is an adequate safeguard against abusive solicitations of the public by the organization; and that the need for public disclosure rises in proportion with the percentage of nonmember contributions. Acceptance of all three of these premises is necessary to appellants' conclusion, but we find no substantial support for any of them in the record.Regarding the first premise, there is simply nothing suggested that would justify the assumption that a religious organization will be supervised and controlled by its members simply because they contribute more than half of the organization's solicited income. Even were we able to accept appellants' doubtful assumption that members will supervise their religious organization under such circumstances, [Footnote 24] the record before us is wholly barren of support for appellants' further assumption that members will effectively control the organization if they contribute more than half of its solicited income. Appellants have offered no evidence whatever that members of religious organizations exempted Page 456 U. S. 250 by § 309.515, subd. 1(b)'s fifty percent rule in fact control their organizations. Indeed, the legislative history of § 309.515, subd. 1(b), indicates precisely to the contrary. [Footnote 25] In short, the first premise of appellants' argument has no merit.Nor do appellants offer any stronger justification for their second premise -- that membership control is an adequate safeguard against abusive solicitations of the public by the organization. This premise runs directly contrary to the central thesis of the entire Minnesota charitable solicitations Act -- namely, that charitable organizations soliciting contributions from the public cannot be relied upon to regulate themselves, and that state regulation is accordingly necessary. [Footnote 26] Appellants offer nothing to suggest why religious organizations should be treated any differently in this respect. And even if we were to assume that the members of religious organizations have some incentive, absent in nonreligious organizations, to protect the interests of nonmembers solicited by the organization, appellants' premise would still Page 456 U. S. 251 fail to justify the fifty percent rule: appellants offer no reason why the members of religious organizations exempted under § 309.515, subd. 1(b)'s fifty percent rule should have any greater incentive to protect nonmembers than the members of nonexempted religious organizations have. Thus we also reject appellants' second premise as without merit.Finally, we find appellants' third premise -- that the need for public disclosure rises in proportion with the percentage of nonmember contributions -- also without merit. The flaw in appellants' reasoning here may be illustrated by the following example. Church A raises $10 million, 20 percent from nonmembers. Church B raises $50,000, 60 percent from nonmembers. Appellants would argue that, although the public contributed $2 million to Church A and only $30,000 to Church B, there is less need for public disclosure with respect to Church A than with respect to Church B. We disagree; the need for public disclosure more plausibly rises in proportion with the absolute amount, rather than with the percentage, of nonmember contributions. [Footnote 27] The State of Minnesota has itself adopted this view elsewhere in § 309.515: with qualifications not relevant here, charitable organizations that receive annual nonmember contributions of less than $10,000 are exempted from the registration and reporting requirements of the Act. § 309.515, subd. 1(a).We accordingly conclude that appellants have failed to demonstrate that the fifty percent rule in § 309.515, subd. 1(b), is "closely fitted" to further a "compelling governmental interest."CIn Lemon v. Kurtzman, 403 U. S. 602 (1971), we announced three "tests" that a statute must pass in order to avoid the prohibition of the Establishment Clause. Page 456 U. S. 252"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 392 U. S. 243 (1968); finally, the statute must not foster 'an excessive governmental entanglement with religion.' Walz [v. Tax Comm'n, 397 U. S. 664, 397 U. S. 674 (1970)]."Id. at 403 U. S. 612-613.As our citations of Board of Education v. Allen, 392 U. S. 236 (1968), and Walz v. Tax Comm'n, 397 U. S. 664 (1970), indicated, the Lemon v. Kurtzman "tests" are intended to apply to laws affording a uniform benefit to all religions, [Footnote 28] and not to provisions, like § 309.515, subd. 1(b)'s fifty percent rule, that discriminate among religions. Although application of the Lemon tests is not necessary to the disposition of the case before us, those tests do reflect the same concerns that warranted the application of strict scrutiny to § 309.515, subd. 1(b)'s fifty percent rule. The Court of Appeals found that rule to be invalid under the first two Lemon tests. We view the third of those tests as most directly implicated in the present case. Justice Harlan well described the problems of entanglement in his separate opinion in Walz, where he observed that governmental involvement in programs concerning religion"may be so direct or in such degree as to engender a risk of politicizing religion. . . . [R]eligious groups inevitably represent certain points of view, and not infrequently assert them in the political arena, as evidenced by the continuing debate respecting birth control and abortion laws. Yet history cautions that political fragmentation on sectarian lines must be guarded Page 456 U. S. 253 against. . . . [G]overnment participation in certain programs, whose very nature is apt to entangle the state in details of administration and planning, may escalate to the point of inviting undue fragmentation."397 U.S. at 397 U. S. 695.The Minnesota statute challenged here is illustrative of this danger. By their "very nature," the distinctions drawn by § 309.515, subd. 1(b), and its fifty percent rule "engender a risk of politicizing religion" -- a risk, indeed, that has already been substantially realized.It is plain that the principal effect of the fifty percent rule in § 309.515, subd. 1(b), is to impose the registration and reporting requirements of the Act on some religious organizations but not on others. It is also plain that, as the Court of Appeals noted,"[t]he benefit conferred [by exemption] constitutes a substantial advantage; the burden of compliance with the Act is certainly not de minimis."637 F.2d at 568. [Footnote 29] We do not suggest that the burdens of compliance with the Act would be intrinsically impermissible if they were imposed evenhandedly. But this statute does not operate evenhandedly, nor was it designed to do so: the fifty percent Page 456 U. S. 254 rule of § 309.515, subd. 1(b), effects the selective legislative imposition of burdens and advantages upon particular denominations. The "risk of politicizing religion" that inheres in such legislation is obvious, and indeed is confirmed by the provision's legislative history. For the history of § 309.515, subd. 1(b)'s fifty percent rule demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others. For example, the second sentence of an early draft of § 309.515, subd. 1(b), read:"A religious society or organization which solicits from its religious affiliates who are qualified under this subdivision and who are represented in a body or convention that elects and controls the governing board of the religious society or organization is exempt from the requirements of . . . Sections 309.52 and 309.53."Minn.H. 1246, 1977-1978 Sess., § 4 (read Apr. 6, 1978). The legislative history discloses that the legislators perceived that the italicized language would bring a Roman Catholic Archdiocese within the Act, that the legislators did not want the amendment to have that effect, and that an amendment deleting the italicized clause was passed in committee for the sole purpose of exempting the Archdiocese from the provisions of the Act. Transcript of Legislative Discussions of § 309.515, subd. 1(b), as set forth in Declaration of Charles C. Hunter (on file in this Court) 8-9. On the other hand, there were certain religious organizations that the legislators did not want to exempt from the Act. One State Senator explained that the fifty percent rule was"an attempt to deal with the religious organizations which are soliciting on the street and soliciting by direct mail, but who are not substantial religious institutions in . . . our state."Id. at 13. Another Senator said,"what you're trying to get at here is the people that are running around airports and running around streets and soliciting people and you're trying to remove them from the exemption that normally applies to religious organizations."Id. at 14. Still another Senator, who apparently Page 456 U. S. 255 had mixed feelings about the proposed provision, stated, "I'm not sure why we're so hot to regulate the Moonies anyway." Id. at 16.In short, the fifty percent rule's capacity -- indeed, its express design -- to burden or favor selected religious denominations led the Minnesota Legislature to discuss the characteristics of various sects with a view towards "religious gerrymandering," Gillette v. United States, 401 U. S. 437, 401 U. S. 452 (1971). As THE CHIEF JUSTICE stated in Lemon, 403 U.S. at 403 U. S. 620:"This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction . . . of churches."IVIn sum, we conclude that the fifty percent rule of § 309.515, subd. 1(b), is not closely fitted to the furtherance of any compelling governmental interest asserted by appellants, and that the provision therefore violates the Establishment Clause. Indeed, we think that § 309.515, subd. 1(b)'s fifty percent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade. Accordingly, we hold that appellees cannot be compelled to register and report under the Act on the strength of that provision. [Footnote 30]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtLarson v. Valente, 456 U.S. 228 (1982)Larson v. ValenteNo. 80-1666Argued December 9, 1981Decided April 21, 1982456 U.S. 228SyllabusA section (§ 309.515, subd. 1(b)) of Minnesota's charitable solicitations Act provides that only those religious organizations that receive more than half of their total contributions from members or affiliated organizations are exempt from the registration and reporting requirements of the Act. The individual appellees, claiming to be followers of the tenets of appellee Unification Church (later joined as a plaintiff) brought suit in Federal District Court seeking a declaration that the statute, on its face and as applied to them, violated, inter alia, the Establishment Clause of the First Amendment, and also seeking injunctive relief. After obtaining a preliminary injunction, appellees moved for summary judgment. Upon finding that the "overbreadth" doctrine gave appellees standing to challenge the statute, the Magistrate to whom the action had been transferred held that the application of the statute to religious organizations violated the Establishment Clause, and therefore recommended declaratory and permanent injunctive relief. The District Court, accepting this recommendation, entered summary judgment for appellees. The Court of Appeals affirmed on both the standing issue and on the merits. But the court, disagreeing with the District Court's conclusion that appellees and others should enjoy the religious organization exemption from the Act merely by claiming to be such organizations, held that proof of religious organization status was required in order to gain the exemption, and left the question of appellees' status "open . . . for further development." Accordingly, the court vacated the District Court's judgment and remanded for entry of a modified injunction and further proceedings.Held:1. Appellees have Art. III standing to raise their Establishment Clause claims. The State attempted to use § 309.515, subd. 1(b)'s fifty percent rule to compel the Unification Church to register and report under the Act. The fact that the fifty percent rule only applies to religious organizations compels the conclusion that, at least for purposes of this suit challenging that application, appellee Unification Church is a religious organization within the meaning of the Act. The controversy between Page 456 U. S. 229 the parties is not rendered any less concrete by the fact that appellants, in the course of this litigation, have changed their position to contend that the Unification Church is not a religious organization within the meaning of the Act, and that therefore it would not be entitled to an exemption under § 309.515, subd. 1(b) even if the fifty percent rule were declared unconstitutional. This is so because the threatened application of § 309.515, subd. 1(b), and its fifty percent rule to appellees amounts to a distinct and palpable injury to them, in that it disables them from soliciting contributions in Minnesota unless they comply with the registration and reporting requirements of the Act. Moreover, there is a causal connection between the claimed injury and the challenged conduct. The fact that appellees have not yet shown an entitlement to a permanent injunction barring the State from subjecting them to the Act's registration and reporting requirements does not detract from the palpability of the particular and discrete injury caused to appellees. Pp. 456 U. S. 238-244.2. Section 309.515, subd. 1(b), in setting up precisely the sort of official denominational preference forbidden by the First Amendment, violates the Establishment Clause. Pp. 456 U. S. 244-255.(a) Since the challenged statute grants denominational preferences, it must be treated as suspect, and strict scrutiny must be applied in adjudging its constitutionality. Pp. 456 U. S. 244-246.(b) Assuming, arguendo, that appellants' asserted interest in preventing fraudulent solicitations is a "compelling" interest, appellants have nevertheless failed to demonstrate that § 309.515, subd. 1(b)'s fifty percent rule is "closely fitted" to that interest. Appellants' argument to the contrary is based on three premises: (1) that members of a religious organization can and will exercise supervision and control over the solicitation activities of the organization when membership contributions exceed fifty percent; (2) that membership control, assuming its existence, is an adequate safeguard against abusive solicitations of the public; and (3) that the need for public disclosure rises in proportion with the percentage of nonmember contributions. There is no substantial support in the record for any of these premises. Pp. 456 U. S. 246-251.(c) Where the principal effect of § 309.515, subd. 1(b)'s fifty percent rule is to impose the Act's registration and reporting requirements on some religious organizations but not on others, the "risk of politicizing religion" inhering in the statute is obvious. Pp. 456 U. S. 251-255.637 F.2d 562, affirmed.BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 456 U. S. 256. WHITE, J., filed a dissenting opinion, in Page 456 U. S. 230 which REHNQUIST, J., joined, post, p. 456 U.S. 258. REHNQUIST, J., filed a dissenting opinion in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 456 U. S. 264.

1972_72-95

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Twenty-five years ago, respondent was indicted for the crime of first-degree murder by a grand jury in Davidson County, Tennessee. On the advice of counsel, he pleaded guilty and was sentenced to a term of 99 years in prison. Many years later, he sought habeas corpus in both state and federal courts. In one petition in United States District Court, he contended that a confession he had given to the police had been coerced, and that he had been denied the effective assistance of counsel. The District Court considered these claims and decided them adversely to respondent, the Court of Appeals for the Sixth Circuit affirmed without opinion, and this Court denied certiorari. Henderson v. Henderson, 391 U.S. 927 (1968). Respondent then sought state habeas corpus, alleging for the first time that he was deprived of his constitutional right because Negroes had been excluded from the grand jury which indicted him in 1948. After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim by failure to raise it before pleading to the indictment, and by pleading guilty.Respondent then filed in the United States District Court the petition for habeas corpus which commenced the present litigation, asserting the denial of his constitutional right by reason of the systematic exclusion of Negroes from grand jury service. Petitioner, in effect, conceded such systematic exclusion to have existed, and the District Court so found. The issue upon which the District Court and the Court of Appeals focused was whether respondent's failure to object to the indictment within the time provided by Tennessee law constituted Page 411 U. S. 260 a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury.At a state hearing, respondent testified that his lawyer did not inform him of his constitutional rights with respect to the composition of the grand jury, that he did not know how the grand jury was selected or that Negroes were systematically excluded, and that his attorney did not tell him that he could have challenged the indictment, or that failure to challenge it would preclude him from later raising that issue. An unchallenged affidavit submitted by the attorney who represented respondent in the 1948 criminal proceeding stated that counsel did not know as a matter of fact that Negroes were systematically excluded from the Davidson County grand jury, and that, therefore, there had been no occasion to advise respondent of any rights he had as to the composition or method of selection of that body.On the basis of this evidence, the Court of Appeals held that the record demonstrated no such "waiver" of constitutional rights as that term was defined in Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938) -- "an intentional relinquishment or abandonment of a known right or privilege." The Court of Appeals went on to affirm the judgment of the District Court, which had ordered respondent released from custody because Negroes had been excluded from the grand jury which indicted him for the offense in question. We granted certiorari in order to decide whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury. [Footnote 1] Page 411 U. S. 261IRespondent, a Negro, and two others were arrested by Tennessee authorities for the robbery of a Nashville liquor store and the attempted murder of an employee who was shot during the episode. Three weeks later, the employee died, and a Davidson County grand jury subsequently returned a murder indictment against respondent. Respondent signed a confession admitting his involvement in the robbery and shooting.At the time of his arrest, respondent was 20 years old and his formal education had terminated at the sixth grade level. He had no attorney when he signed the confession, but subsequently his mother retained counsel to represent him. The attorney's major effort appears to have been to arrange a form of plea bargain, whereby respondent would plead guilty to the murder charge and the sentence, although imposed by a petit jury, would be 99 years, rather than the ultimate penalty. Respondent initially expressed a desire to plead not guilty, but, apparently because of the evidence against him and the possibility that the death sentence might be imposed if he were convicted, he decided on the advice of his counsel to plead guilty. The plea was entered, and the agreed-upon sentence was imposed.IIFor nearly a hundred years, it has been established that the Constitution prohibits a State from systematically excluding Negroes from serving upon grand juries that indict for crime and petit juries that try the factual issue of the guilt or innocence of the accused. Strauder v. Page 411 U. S. 262 West Virginia, 100 U. S. 303, 100 U. S. 309 (1880). See also Virginia v. Rives, 100 U. S. 313, 100 U. S. 322-323 (1880). These holdings have been reaffirmed over the years, see, e.g., Norris v. Alabama, 294 U. S. 587 (1935), and Pierre v. Louisiana, 306 U. S. 354 (1939), and are not, of course, questioned here. But respondent's assertion of this claim has another dimension to it; it was made for the first time many years after he had pleaded guilty to the offense for which he was indicted by the grand jury. None of our previous decisions dealing with the constitutional prohibition against racial discrimination in the selection of grand jurors has come to us in the context of a guilty plea. [Footnote 2]In Brady v. United States, 397 U. S. 742, 397 U. S. 750 (1970), McMann v. Richardson, 397 U. S. 759, 397 U. S. 770 (1970), and Parker v. North Carolina, 397 U. S. 790 (1970), this Court dealt at some length with the effect of a plea of guilty on the later assertion of claimed violations of constitutional Page 411 U. S. 263 rights. In Brady v. United States, supra, at 397 U. S. 750, 397 U. S. 758, the Court said:"The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.""* * * *" "This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary, and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel, and that there is nothing to question the accuracy and reliability of the defendants' admissions that Page 411 U. S. 264 they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth."In McMann v. Richardson, supra, at 397 U. S. 770-771, the Court laid down the general rule by which federal collateral attacks on convictions based on guilty pleas rendered with the advice of counsel were to be governed:"In our view, a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases."(Footnote omitted.)The Court of Appeals in its opinion in this case expressed the view that Brady, supra, and McMann, supra, were not controlling, because, in its words:"The Brady line of cases dealt only with challenges to the guilty plea itself; no such challenge has been made here. For this reason alone we believe that Brady and its successors cannot govern our decision here."459 F.2d 237, 242 n. 5 (1972). [Footnote 3] Page 411 U. S. 265 We think the Court of Appeals took too restrictive a view of our holdings in the Brady trilogy. In each of those cases, the habeas petitioner alleged some deprivation of constitutional rights that preceded his decision to plead guilty. In McMann, supra, each of the respondents asserted that a coerced confession had been obtained by the State. In Brady, supra, the claim was that the burden placed on the exercise of the right to jury trial by the structure of the Federal Kidnaping Act, 18 U.S.C. § 1201 -- a burden which was held constitutionally impermissible in United States v. Jackson, 390 U. S. 570 (1968) -- had motivated petitioner's decision to plead guilty. In Parker, supra, the claim was that a provision of that State's laws similar to that contained in 18 U.S.C. § 1201 had likewise motivated the guilty plea.While the claims of coerced confessions extracted prior to the guilty plea in McMann were in a somewhat different posture than had they been made in attacking a jury verdict based in part upon such confessions, the claim of impermissible burden on the right to jury trial resulting from the structure of the Kidnaping Act and the North Carolina law, respectively, were not significantly different from what they would have been had they been made following a bench trial and judgment of conviction. But the Court in Brady and Parker, as well as in McMann, refused to address the merits of the claimed constitutional deprivations that occurred prior to the guilty plea. Instead, it concluded in each case that the issue was not the merits of these constitutional claims as such, but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel.There are, no doubt, factual and legal differences between respondent's present assertion of the claim of discriminatory selection of the members of a grand jury and the assertion of the constitutional claims by the Page 411 U. S. 266 prisoners in the Brady trilogy. In the latter cases, the facts giving rise to the constitutional claims were generally known to the defendants and their attorneys prior to the entry of the guilty pleas, and the issue in this Court turned on the adequacy of the attorneys' advice in evaluating those facts as a part of the recommendation to plead guilty. In the instant case, the facts relating to the selection of the Davidson County grand jury in 1948 were found by the District Court and the Court of Appeals to have been unknown to both respondent and his attorney. If the issue were to be cast solely in terms of "waiver," the Court of Appeals was undoubtedly correct in concluding that there had been no such waiver here. But just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, we conclude that respondent's guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.IIIWe hold that, after a criminal defendant pleads guilty on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, supra, at 397 U. S. 771. Counsel's failure to evaluate Page 411 U. S. 267 properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim might in particular fact situations meet this standard of proof. Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief.We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is, in fact, guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea might be to the normal focus of counsel's inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel, in retrospect, may not have correctly appraised the constitutional significance of certain historical facts, McMann, supra, it is likewise not sufficient that he show that, if counsel had pursued a certain factual inquiry, such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel's ability Page 411 U. S. 268 to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel's concern is the faithful representation of the interest of his client, and such representation frequently involves highly practical considerations, as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, see Brady v. United States, supra, at 397 U. S. 751-752, or by contesting all guilt, see Santobello v. New York, 404 U. S. 257 (1971). A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.In order to obtain his release on federal habeas under these circumstances, respondent must not only establish the unconstitutional discrimination in selection of grand jurors, he must also establish that his attorney's advice to plead guilty without having made inquiry into the composition of the grand jury rendered that advice outside the "range of competence demanded of attorneys in criminal cases."Because we do not have before us all of the papers dealing with respondent's previous federal habeas petitions, we are not in a position to say whether he is presently precluded from raising the issue of the voluntary and intelligent nature of his guilty plea, or whether that claim would be open to him on appropriate allegations in a new or amended petition. The Court of Appeals was at pains to point out that respondent's present petition did not attack the guilty plea. In view of the reliance placed by the Court of Appeals and the District Page 411 U. S. 269 Court in their respective opinions in this case upon the statement of the concurring judge in the Tennessee Court of Criminal Appeals that"[n]o lawyer in this Sate would have ever thought of objecting to the fact that Negroes did not serve on the Grand Jury in Tennessee in 1948,"the chances of respondent's being able to carry the necessary burden of proof in challenging the guilty plea would appear slim. Nonetheless, we prefer to have this issue, if it be open to respondent under federal habeas practice, first addressed by the District Court or by the Court of Appeals. Respondent was not, at any rate, entitled to release from custody solely by reason of the fact that the grand jury which indicted him was unconstitutionally selected, and the judgment of the Court of Appeals holding otherwise is reversed and remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTollett v. Henderson, 411 U.S. 258 (1973)Tollett v. HendersonNo. 72-95Argued February 20, 1973Decided April 17, 1973411 U.S. 258SyllabusWhere a state criminal defendant, on advice of counsel, pleads guilty, he cannot, in a federal habeas corpus proceeding, raise independent claims relating to the deprivation of constitutional rights that antedated the plea, Brady v. United States, 397 U. S. 742, such as infirmities in the grand jury selection process, but may only attack the voluntary and intelligent character of the guilty plea by showing that counsel's advice was not within the standards of McMann v. Richardson, 397 U. S. 759. Pp. 411 U. S. 261-269.459 F.2d 237, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 411 U. S. 269. Page 411 U. S. 259

1963_137

MR. JUSTICE HARLAN delivered the opinion of the Court.This case presents the claim that the Maritime Commission exceeded its statutory authority under § 5 of the Merchant Ship Sales Act of 1946, 60 Stat. 43, as amended, 50 U.S.C.App. § 1738, by"(1) including in its contract with petitioners [Footnote 1] for the bareboat charter of ships a sliding scale that required payment to the Government of more than 50% of certain excess profits, and""(2) using the threat of termination of the character arrangement to compel agreement to divide the calendar year 1947 into separate periods for the purpose of computing such profits. "Page 377 U. S. 237Because a considerable number of suits are pending in the lower courts which will turn on resolution of these issues, and because of a conflict among the circuits as to the first issue, [Footnote 2] we brought the case here. 375 U.S. 809. For reasons to follow, we affirm the judgment below upholding the power of the Commission to act as it did.IThe Merchant Marine Act, 1936, 49 Stat. 1985, as amended, 46 U.S.C. §§ 1101-1294, provided for the charter of government vessels by the Maritime Commission to private enterprise. Section 709(a) of that Act, 49 Stat. 2010, incorporated by reference in the 1946 Act, § 5(c), 60 Stat. 43, provided:"Every charter made by the Commission pursuant to the provisions of this title shall provide that whenever at the end of any calendar year subsequent to the execution of such charter, the cumulative net voyage profits (after payment of the charter hire reserved in the charter and payment of the charterer's fair and reasonable overhead expenses applicable to operation of the chartered vessels) shall exceed 10 percentum per annum on the charterer's capital necessarily employed in the business of such chartered vessels, the charterer shall pay over to the Commission, as additional charter hire, one-half of such cumulative net voyage profit in excess of 10 percentum per annum: Provided, That the cumulative net profit so accounted for shall not be included Page 377 U. S. 238 in any calculation of cumulative net profit in subsequent years."During World War II, operations of the private merchant marine were disrupted and its fleets reduced by losses and requisition. Meanwhile, many vessels were constructed for government operations. Congress, by means of the Merchant Ship Sales Act of 1946, supra, sought to ensure post-war rehabilitation of the private merchant marine by having the Maritime Commission sell or charter surplus war-built government vessels. The Commission was instructed "so far as practicable, and consistent with the policies of this Act, [to] give preference to . . . applicants to purchase" over applicants to charter. [Footnote 3] Section 5(b), 60 Stat. 43, of the Act set out standards for the Commission to follow in chartering vessels:"The charter hire for any vessel chartered under the provisions of this section shall be fixed by the Commission at such rate as the Commission determines to be consistent with the policies of this Act, but, except upon the affirmative vote of not less than four members of the Commission, such rate shall not be less than 15 percentum per annum of the statutory sales price (computed as of the date of charter). . . . [R]ates of charter hire fixed by the Commission on any war-built vessel which differ from the rate specified in this subsection shall not be less than the prevailing world market charter rates for similar vessels for similar use as determined by the Commission."As already indicated, § 5(c) made the provisions of § 709(a) of the Merchant Marine Act applicable to charters under the 1946 Act. Page 377 U. S. 239Prior to the Commission's exercising of its authority under the 1946 Act, the War Shipping Administration chartered ships to private interests on an interim basis; it followed the lines of the 1946 Act, specifying a "basic charter hire" which equaled 15% per annum of the statutory sales price and an "additional charter hire" of one-half of any net profits in excess of a 10% annual return on the charterer's capital employed in the operation of the chartered vessels. During this period, a Special Charter Committee considered the best way to implement the provisions of the 1946 Act. Existing rentals were believed to be too low, and higher rentals were thought necessary to promote the statutory policy of encouraging sales, rather than charters. A majority of the Committee preferred a higher profit-sharing rate than that provided in § 709(a) to any additional firm rental, since the former would permit both the Commission and charterers to adapt to a fluctuating world market, without imposing a greater risk of loss on the charterers. The Maritime Commission adopted this basic suggestion, and decided to charge, in addition to the firm rental of 15% of the sales price, 50% of the average net voyage profits in excess of 10% of the charterer's capital necessarily employed up to the first $100 of profits per day, 75% of the next $200 per day, and 90% of such profits above $300 per day.The Commission adopted a standard Ship Sales Act charter ("SHIPSALESDEMISE 303") incorporating these provisions, and Eastern chartered 10 vessels under such a contract dated October 1, 1946. Market conditions allowed high profits to be earned in the first eight months of 1947. The Commission decided to terminate existing charters, as it was privileged to do under the contract on 15 days' notice, but agreed not to terminate if a charterer accepted an Addendum to its contract providing, among other things, for a separate calculation of profit-sharing Page 377 U. S. 240 rentals for the period commencing September 1, 1947. Eastern signed such an Addendum, and was not able, as a result, to offset losses incurred in the latter part of 1947 against the excess profits earned before September 1.Eastern did not attempt to litigate its rights under the 1946 Act until it had completed all the payments required by the charter agreement. In 1955, it filed this in personam libel for recovery of money paid pursuant to the profits-sharing provisions and the 1947 "Foreign Trade Addendum." It asserted that § 709(a) sets a maximum, as well as a minimum, rate of profit-sharing, and precluded the Commission from altering that rate under § 5(b). It claimed further that, even if such power existed, the Commission's apparent reliance on § 709(a), rather than § 5(b), renders these charter provisions nugatory. Finally, it argued that the 1947 Addendum conflicted with the statutory mandate of § 709(a) for calendar year accounting of statutory profits, and that the Commission abused its termination privilege by threatening to terminate the charter agreements of those refusing to accept the split-year profit-sharing arrangement. All of these contentions were rejected by the lower court, the Court of Appeals affirming the District Court, 202 F. Supp. 297; 210 F. Supp. 822, in a thorough opinion, 312 F.2d 214.Preliminarily, we observe that, in the view we take of that case, we find it unnecessary to consider the Government's alternative ground for affirmance: that the doctrine of waiver precludes Eastern from challenging the terms of its charter agreement because, once having signed the agreement and benefited from the charter, Eastern cannot seek to overturn provisions of the contract that it regards as unfavorable. [Footnote 4] Page 377 U. S. 241IIThe basic statutory question is whether the Commission, in light of § 709(a), had authority under § 5(b) to impose the sliding scale of additional hire, and, if so, whether its failure to articulate the particular statutory basis for its action vitiates the validity of the profit-sharing terms of the rate set. We approach this problem with three general interpretative guides, all of which point in the Government's favor. Some weight is due to the consistent interpretation of the Maritime Commission, the agency entrusted with administration of the statute. See, e.g., United States v. Zucca, 351 U. S. 91, 351 U. S. 96; Kern River Co. v. United States, 257 U. S. 147, 257 U. S. 153-154. The successive extensions by Congress of the Commission's authority to charter vessels, [Footnote 5] in the face of the Commission's sliding-scale practice, are certainly not controlling, particularly since it does not appear that Congress ever advertently addressed itself to the claim of invalidity of the sliding scale; they do, however, strengthen to some extent the Commission's conclusions regarding its chartering powers. In 1947, following subcommittee hearings, [Footnote 6] the House Committee on Merchant Marine and Fisheries, H.R.Rep. No. 725, 80th Cong., 1st Sess. (1947), recommended an extension, subsequently enacted, 61 Stat. 190, 191, of the Commission's chartering authority"with the understanding that the basic rates for the Page 377 U. S. 242 charter of dry-cargo vessels and recapture rates will be immediately increased, thus encouraging the purchase, rather than charter, of these ships."P. 2. Congressional reports prior to another extension, H.R.Rep. No. 60, 81st Cong., 1st Sess., 2 (1949); S.Rep. No. 55, 81st Cong., 1st Sess., 2 (1949), stated:"It is contemplated that the Maritime Commission will continue to sell, charter, and operate ships in accordance with existing procedures and without (according to the House Report) any change in its present policy."(The Senate Report reads "any changes in policies now effective.")Further, in light of the congressional policy to encourage the sale of ships, contained in § 7(a) of the 1946 Act, supra, there is an initial presumption that Congress intended that the Commission should have power to establish chartering terms commensurate with making more attractive purchase, instead of charter, of government vessels by private shipowners. Needless to say, these "interpretative aids," neither singly nor in conjunction, could lead to an affirmance here if it were clear that the Commission's action contradicted the requirements of the Merchant Ship Sales Act of 1946. However, they are consistent with, and lend support to, what we believe to be the most sensible view of the statutory framework.According to § 709(a) of the 1936 Act, as adopted by the 1946 statute:"The charterer shall pay over to the Commission, as additional charter hire, one-half of such cumulative net voyage profit in excess of 10 percentum per annum. . . ."(Emphasis added.)Section 5(b) of the 1946 Act provides:"The charter hire . . . shall be fixed by the Commission at such rate as the Commission determines to be consistent with the policies of this Act, but, . . . such rate shall not be less than 15 percentum per annum of the statutory sales price. . . . "Page 377 U. S. 243Eastern makes the contention that the language of § 5(b) itself limits the Commission's power under that section to a fixed annual charter rate. It argues that a profit-sharing arrangement is not a "rate" of charter hire in the normal sense, nor is it "fixed." The short answer is that it is perfectly reasonable to speak of a "rate" which is based on percentage of profits, and there is no problem in "fixing" a contingent rate. Certainly the reference to the minimum rate of 15% (subject to an exception not relevant here) of the statutory sales price in no way reflects an intent to preclude the Commission from developing other types of rate patterns. We find nothing in § 5(b) itself to justify strait-jacketing, by proscribing any approach not based on a percentage of the sales price, the Commission's development of rate patterns best serving the policies of the Act.The position that § 709(a) is the exclusive profit-sharing provision, that it prohibits what might otherwise be sustained as a proper exercise of power under § 5(b), is somewhat more arguable. Eastern asserts that § 709(a) was written as a maximum, as well as minimum, standard for the Commission's share of excess profits, and that its import was not altered by its adoption in the 1946 Act. Significance is placed on Congress' use of the word "shall," rather than a phrase such as "not less than," in fixing the charterer's obligation to pay 50% of its excess profits.However, when § 709(a) was passed, rates of charter hire were determined in most situations under § 707(a), 49 Stat. 2009, by competitive bidding in individual cases. [Footnote 7] Page 377 U. S. 244 Since the firm rental offered could afford the only basis for assessing "the highest monthly charter hire," individual bidders did not propose profit-sharing arrangements. Under such a system, the primary reliance against rates unreasonably favorable to charterers was the bidding system. In that context, it could plausibly be urged that the Commission had no authority to raise its share of excess profits. Indeed, the Government does not argue that, at that time, or after the 1946 Act, § 709(a), ex proprio vigore, conferred power on the Commission to raise the rates beyond the prescribed 50%. The relevant question, therefore, is whether as carried into the 1946 Act the section set a maximum, as well as minimum, rate of profit-sharing for the statute as a whole.First, it may be noted that "shall" plainly denotes a minimum; one cannot pay 50% and at the same time pay less than 50%. On the other hand, the word does not, of linguistic necessity, denote a maximum; one can pay 50% and also pay 25% more. While, in recognizing this, we do not mean to suggest that, standing alone, the 50% standard of § 709(a) would not be read as establishing a maximum, as well as a minimum, it is significant that the section's language is not inconsistent with a conclusion that higher percentages are permissible. Congress cannot be expected always to be absolutely precise in its statutory formulations. When it brings forward into a new enactment provisions drafted in a different statutory context and in response to other circumstances and policies, the likelihood of imprecision is increased. In light of the great breadth of discretion apparently given to the Commission under § 5(b) and the expressed concern of Congress that charter rates not Page 377 U. S. 245 be too low to discourage sales, we should be very slow to fetter the flexibility of the Commission to implement, in the most effective way, the policies of the Act. Viewing the 1946 Act as an integrated whole, we refuse to inhibit the Commission under § 5(b) by resort to an interpretation of § 709(a) which could be characterized only as arid literalism. [Footnote 8]We conclude, therefore, that the Commission had the power under § 5(b) to impose the sliding scale, and that § 709(a) does not negate that authority. In passing, it may be noted that, in addition to the courts below, four other lower courts have reached or assumed the same conclusion. See Dichman, Wright & Pugh, Inc. v. United States, 144 F. Supp. 922, 926; United States v. East Harbor Trading Corp., 190 F. Supp. 245, 249; American Mail Line, Ltd. v. United States, 213 F. Supp. 152, 163; United States v. Eastport Steamship Corp., 216 F. Supp. 649, 653-654. But see American President Lines, Ltd. v. United States, 224 F. Supp. 187, 190-191. See also American Export Lines, Inc. v. United States, 290 F.2d 925, 930, 153 Ct. l. 201, 208-209.We next turn to the question whether § 5(b) suffices to support the sliding scale for profit-sharing rentals adopted by the Commission, in the face of the assertion Page 377 U. S. 246 that the Commission did not purport to act under that section, but apparently relied on § 709 alone. Eastern notes that the added obligation respecting excess profits was imposed as a part of "additional charter hire" under clause 13 of the charter agreement ("Form 303"), which included the 50% charge on excess profits less than $100 per day. Under "Form 203", the standard charter employed pending implementation of the 1946 Act, the unembellished 50% rate of § 709(a) had also been characterized as "additional charter hire," and appeared in clause 13 of that form. In both "Form 203" and "Form 303" provision for the "basic charter hire" -- the relevant percent of the sales price -- was provided for in clauses E, C(1), and 12. Eastern accordingly concludes that the Commission equated "basic charter hire" with hire under § 5(b), and "additional charter hire" with that imposed under § 709(a). Citing a number of cases holding that grounds not relied on by a government agency cannot be invoked to validate an exercise of administrative discretion which has in fact been based on insufficient grounds or reached without requisite procedural safeguards, see, e.g., Securities & Exchange Comm'n v. Chenery Corp., 332 U. S. 194, 332 U. S. 196; Bell v. United States, 366 U. S. 393, 366 U. S. 412-413; Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 371 U. S. 167-168, Eastern asserts that the failure of the Commission to indicate the statutory basis of its sliding scale for profit sharing renders that aspect of its charter agreements void. It is not entirely clear what the Commission believed the source of its power to be, and it is at least arguable that inclusion of the sliding rates within the additional hire clause was not necessarily inconsistent with a supposition of authority under § 5(b). We find it unnecessary, however, to deal with this question, since we agree with the courts below that the intent of the Commission in this regard is irrelevant. Page 377 U. S. 247The District Court determined that there is not"the slightest ground for assuming that if the Commission had been apprized of the correct source of its authority, the Commission or the other party would have made a contract different in substance, as distinguished from wording."202 F. Supp. 297, 305. Eastern does not seriously challenge this determination. Although it alleges that the Commission hesitated to act under § 5(b) to raise the fixed 15% rate, because such an increase would have been passed on to other government agencies as a result of contractual provisions for subcharter, Eastern does not assert that a contingent profit-sharing rate of more than 50% would likewise have been passed on even if the Commission had explicitly referred to § 5(b) as its source of authority. The subcharter clause appearing in the record indicates that only an increase in the 15% fixed rate would have been passed on.No doubt is cast on the conclusion of the District Court by anything in § 5(b) or § 709(a). Section 5(b) does not require a hearing or any particular kind of procedure (except when the rate is set below 15% of the sales price). Since § 709(a) does not itself authorize deviations from the 50% rate on excess profits, that section provides, of course, no criteria for assessing the propriety of any such deviation. Section 5(b) rates are supposed to be fixed "consistent with the policies of this Act" and (at least if lower than 15% of the statutory sales price) are not to be set at less than the prevailing world market charter rates. Since it is plain that the Commission instituted rates it believed to be consistent with the policies of the 1946 Act, it seems patently clear that its determination would have in no way varied had it paid particular attention to § 5(b) in establishing the sliding scale.In light of these factors, we find inapposite here cases refusing to validate an exercise of administrative discretion Page 377 U. S. 248 because it could have been supported by principles or facts not considered, or procedures not undertaken, by the responsible body. These cases are aimed at assuring that initial administrative determinations are made with relevant criteria in mind. and in a proper procedural manner; when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached, as in this instance (assuming there was such a mistake), the sought extension of the cases cited would not advance the purpose they were intended to serve. The imposition of the sliding scale of additional charter hire was authorized by § 5(b), and the Commission's failure to indicate explicitly or implicitly that that section was the source of its power is without legal significance.Eastern claims that, if the sliding-scale charge is proper under § 5(b), the Commission has not followed the statutory scheme for accounting. Section 709(a) provides for equal division of profits after payment of the "charter hire reserved in the charter. . . ." Eastern equates this language with the "charter hire . . . fixed by the Commission" under § 5(b). Without attempting the impossible task of reading into the charter contract the following method of accounting, Eastern argues that this procedure is required by the statute: in addition to the required percent of the statutory sales price, the "charter hire reserved in the charter" includes any charge above 50% of profits; after these charges are computed, the Commission is entitled to 50% of remaining excess profits. How this method would work is most easily seen if we hypothesize an attempt by the Commission to acquire 100% of all excess profits. Instead of achieving this goal, the Commission would have to compute the fixed hire plus 50% of the profits (the amount of charge above the 50% set by § 709(a)). The Commission would then receive 50% of the remaining profits; as a consequence, the Page 377 U. S. 249 charterer would retain 25% of the total excess profits. The effect of this method of accounting, therefore, would be to turn § 709(a) into a provision limiting under profit-sharing arrangements effected pursuant to § 5(b), the Government's share of profits over 10% of capital necessarily employed; the maximum government share would be 75% (instead of the 50% that would result it § 709(a) were read to prohibit completely any profit-sharing arrangement under § 5(b)).We are not compelled to accept this anomalous result. It is not necessary to read the reference in § 709(a) to "charter hire reserved in the charter" as synonymous with "charter hire . . . fixed by the Commission" in § 5(b). It is highly doubtful that the draftsmen intended such a result, particularly since § 709(a) was brought forward without any attempt to spell out carefully its relationship to § 5(b). A reading which does greater justice to the whole statutory framework is to limit "charter hire reserved in the charter" to any firm, rather than contingent hire, regardless of whether § 5(b) is the source for imposing the hire. Even if Eastern's interpretation of the language were acceptable, however, we see no reason why the Commission cannot reach under § 5(b) what it would otherwise be paid under § 709(a). If the sliding scale requires 90% of certain profits to be turned over to the Commission, it makes better sense to say that the Commission can take the full 90% under § 5(b), thus rendering § 709(a) superfluous, than to conclude that the Commission's authority under § 5(b) extends only to the incremental amount. According to Eastern's argument, § 709(a) performs a dual function -- it allocates that percent of profits which may be reached as "charter hire . . . fixed by the Commission," and it distributes the remaining profits. We think it clear that it was not intended in the context of the 1946 Act to perform the former role; therefore, even were any rate set under Page 377 U. S. 250 § 5(b) taken to be "charter hire reserved in the charter," no statutory impediment would preclude the Commission from taking the full 75% and 90% of excess profits. A contrary conclusion would require a strained reading of the language of the Act, and would conflict with the policies enunciated therein.IIIBecause of the discouragement of sales resulting from the high profits earned by charterers in the first part of 1947, the Commission sent telegrams to Eastern and other charterers on August 15 informing them of the Commission's intention to terminate the charter contracts, a privilege given to both parties under clause 14. The telegrams stated that the charterers would be able to continue use of the vessels if they agreed to new terms and conditions. On August 20, the Commission set out the new terms, including a provision that payment of additional charter hire under clause 13 be computed separately for voyages commencing after September 1. Eastern agreed to the terms; since it suffered losses for its post-August voyages, it was required to pay to the Commission a greater amount than would have been the case had 1947 been treated as a unit for accounting purposes. Eastern claims that the "Foreign Trade Addendum" to its charter was invalid insofar as it purported to divide 1947 into two accounting periods. It argues that § 709(a) required calendar year accounting, that agreement to the Addendum was insufficient to create a new charter contract, and that the Commission could not use its termination power to accomplish an improper result.We find this position untenable. There was no explicit limitation on the Commission's power to terminate existing charters, nor do we read § 709(a), which provides for computation of additional charter hire "at the end of any calendar year," as indirectly imposing such Page 377 U. S. 251 a restriction. The Commission could, therefore, have terminated all existing charters and rechartered the vessels to accomplish the end it sought. That the notification of termination was not a disingenuous threat to achieve an otherwise improper purpose is evidenced by the number of contracts which were, in fact, terminated subsequent to August 15. The Addendum states that it is to be "treated for accounting purposes as if it constituted a separate charter. . . ." We will not refuse to accord it significance simply because the Commission did not require the charterer to to through the formalities of the execution of a new contract.Affirmed

U.S. Supreme CourtMassachusetts Trustees v. United States, 377 U.S. 235 (1964)Massachusetts Trustees of Eastern Gas & Fuel Associatesv. United States,No. 137Argued February 24, 1964Decided May 25, 1964377 U.S. 235SyllabusPetitioners chartered ships from the Maritime Commission under a contract providing for payment which included a share of excess profits under a sliding scale of 50 to 90 percent. Section 5 (b) of the Merchant Ship Sales Act of 1946 directed the Commission to fix charter hire at rates which "shall not be less than 15 percentum per annum of the statutory sales price," and shall be consistent with the Act's policy to sell, rather than charter, ships to private owners. The provisions of § 709(a) of the Merchant Marine Act, 1936, which were made applicable to charters under the 1946 Act by § 5(c) of the latter statute, stipulated that every charter shall provide that,"whenever, at the end of any calendar year . . . the cumulative net voyage profits . . . shall exceed 10 percentum per annum on the charterer's capital necessarily employed in the business of such chartered vessels, the charterer shall pay over to the Commission, as additional charter hire, one-half of such cumulative net voyage profit in excess of 10 percentum per annum. . . ."Pursuant to a charter clause permitting termination of the contract, the Commission notified petitioners of its intention to cancel the charter, but advised that the vessels could continue to be used under new terms, to which petitioners agreed, providing that excess profits would be computed for each voyage separately after September 1, 1947. Petitioners' contentions that the Commission was limited under § 709(a) to 50 percent of the excess profits, and that it exceeded its authority by dividing the calendar year 1947 into separate periods through the threat of cancellation, were rejected by the lower courts.Held:1. The Commission had authority under § 5(b) of the Merchant Ship Sales Act of 1946 to utilize a sliding scale of excess profits. Pp. 377 U. S. 241-250.(a) The 50 percent provisions in § 709(a) of the Merchant Marine Act, 1936, established, in the context of the 1946 Act, a minimum, but not a maximum, rate. Pp. 377 U. S. 243-245. Page 377 U. S. 236(b) The use of a sliding scale was authorized by § 5(b) and the failure of the Commission to indicate the specific source of its authority had no legal significance. Pp. 377 U. S. 245-248.2. There was no limitation of the Commission's power to terminate the existing charter. Pp. 377 U. S. 250-251.(a) The provisions in § 709(a) calling for computation of additional charter hire "at the end of any calendar year" did not impose such a restriction. Pp. 377 U. S. 250-251.(b) Notification of termination was not a mere threat for an improper purpose; the Commission could terminate all existing charters and then recharter the vessels to accomplish its goals. P. 377 U. S. 251.312 F.2d 214, affirmed.

1961_422

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner challenges, from the standpoint of both power and discretion, the District Court's sua sponte dismissal of this diversity negligence action under circumstances that follow.The action, growing out of a collision between petitioner's automobile and one of respondent's trains, was commenced on August 24, 1954. Some six years later, and more than three years after petitioner had finally prevailed on respondent's motion for judgment on the pleadings (during which time two fixed trial dates had been postponed), [Footnote 1] the District Court, on September 29, 1960, duly notified counsel for each side of the scheduling of a pretrial conference to be held at the courthouse in Hammond, Indiana, on October 12, 1960 at 1 p.m. During the preceding morning, October 11, petitioner's counsel telephoned respondent's lawyer from Indianapolis, stating that "he was doing some work on some papers," that he expected to be at the pretrial conference, but that he might not attend the taking of a deposition of the plaintiff scheduled for the same day. At about 10:45 on the morning of October 12, petitioner's counsel telephoned the Page 370 U. S. 628 Hammond courthouse from Indianapolis (about 160 miles away), and, after asking for the judge, who then was on the bench, requested the judge's secretary to convey to him this message: "that he [counsel] was busy preparing papers to file with the [Indiana] Supreme Court," that"he wasn't actually engaged in argument, and that he couldn't be here by 1:00 o'clock, but he would be here either Thursday afternoon [October 13] or any time Friday [October 14] if it [the pretrial conference] could be reset."When petitioner's counsel did not appear at the pretrial conference, the District Court, after reviewing the history of the case [Footnote 2] and finding that counsel had failed Page 370 U. S. 629 "to indicate . . . a reasonable reason" for his nonappearance, dismissed the action "for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action." The court, acting two hours after the appointed hour for the conference, stated that the dismissal was in the "exercise [of] its inherent power." The Court of Appeals affirmed by a divided vote. 291 F.2d 542. We granted certiorari. 368 U.S. 918.IThe authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. [Footnote 3] The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion Page 370 U. S. 630 in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of non-suit and non prosequitur entered at common law, e.g., 3 Blackstone, Commentaries (1768) 295-296, and dismissals for want of prosecution of bills in equity, e.g., id. at 451. It has been expressly recognized in Federal Rule of Civil Procedure 41(b), which provides, in pertinent part:"(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits."Petitioner contends that the language of this Rule, by negative implication, prohibits involuntary dismissals for failure of the plaintiff to prosecute except upon motion by the defendant. In the present case, there was no such motion.We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule -- which merely authorizes a motion by the defendant -- nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an "inherent power," governed not by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to Page 370 U. S. 631 achieve the orderly and expeditious disposition of cases. [Footnote 4] That it has long gone unquestioned is apparent not only from the many state court decisions sustaining such dismissals, [Footnote 5] but even from language in this Court's opinion in Redfield v. Ystalyfera Iron Co., 110 U. S. 174, 110 U. S. 176. [Footnote 6] It also has the sanction of wide usage among the District Courts. [Footnote 7] It would require a much clearer expression of Page 370 U. S. 632 purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well acknowledged a proposition.Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a dismissal void. It is true, of course, that"the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked."Anderson National Bank v. Luckett, 321 U. S. 233, 321 U. S. 246. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.In addition, the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b) -- which authorizes the reopening of cases in which final orders have been inadvisedly entered -- renders the lack of prior notice of less consequence. Petitioner never sought to avail himself of the escape hatch provided by Rule 60(b). Page 370 U. S. 633Accordingly, when circumstances make such action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand on appeal depends not on power, but on whether it was within the permissible range of the court's discretion. [Footnote 8]IIOn this record, we are unable to say that the District Court's dismissal of this action for failure to prosecute, as evidenced only partly by the failure of petitioner's counsel to appear at a duly scheduled pretrial conference, amounted to an abuse of discretion. It was certainly within the bounds of permissible discretion for the court to conclude that the telephone excuse offered by petitioner's counsel was inadequate to explain his failure to attend. And it could reasonably be inferred from his absence, as well as from the drawn-out history of the litigation (see note 2 supra), [Footnote 9] that petitioner had been deliberately proceeding in dilatory fashion.There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected Page 370 U. S. 634 agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent, and is considered to have "notice of all facts, notice of which can be charged upon the attorney." Smith v. Ayer, 101 U. S. 320, 101 U. S. 326. [Footnote 10]We need not decide whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff. For the District Court in this case relied on all the circumstances that were brought to its attention, including the earlier delays. [Footnote 11] Page 370 U. S. 635 And while the Court of Appeals did not expressly rest its judgment on petitioner's failure to prosecute, it nonetheless set out the entire history of the case (including the statement made by the district judge's secretary that it was "the oldest civil case on the court docket"), noted that the District Court had considered the absence at the pretrial conference in light of "the history of this litigation" and "of all the circumstances surrounding counsel's action in the case," 291 F.2d at 545, and held that there was no abuse of discretion in dismissing the action "under the circumstances of this case." Id. at 546. This obviously amounts to no broader a holding than that the failure to appear at a pretrial conference may, in the context of other evidence of delay, be considered by a District Court as justifying a dismissal with prejudice. [Footnote 12]Nor need we consider whether the District Court would have been abusing its discretion had it rejected a motion under Rule 60(b) which was accompanied by a more adequate explanation for the absence of petitioner's counsel from the pretrial conference. No such motion was ever Page 370 U. S. 636 made, so that there is nothing in the record before us to indicate that counsel's failure to attend the pretrial conference was other than deliberate or the product of neglect.Finally, this is not a case in which failure to comply with a court order "was due to inability fostered neither by . . . [petitioner's] own conduct nor by circumstances within its control." Societe Internationale Pour Participations Industrielles Et Commercials, S.A. v. Rogers, 357 U. S. 197, 357 U. S. 211. Petitioner's counsel received due notice of the scheduling of the pretrial conference, and cannot now be heard to say that he could not have foreseen the consequences of his own default in attendance.Affirmed

U.S. Supreme CourtLink v. Wabash R. Co., 370 U.S. 626 (1962)Link v. Wabash Railroad Co.No. 422Argued April 3, 1962Decided June 25, 1962370 U.S. 626SyllabusMore than six years after institution of this diversity of citizenship action by petitioner in a Federal District Court to recover damages for personal injuries sustained in a collision between petitioner's automobile and one of respondent's trains, more than three years after petitioner had finally prevailed against respondent's motion for judgment on the pleadings, and after two fixed trial dates had been postponed, the Court, on September 29, 1960, scheduled a pretrial conference to be held in Hammond, Ind., on October 12, 1960, at 1:00 p.m., and notified counsel for both sides. During the morning of October 11, petitioner's counsel telephoned respondent's counsel from Indianapolis that he expected to be at the pretrial conference. At about 10:45 a.m. on October 12, petitioner's counsel telephoned the judge's secretary to tell the judge that he was otherwise engaged in Indianapolis, that he could not be in Hammond by 1:00 o'clock; but that he would be there on the afternoon of October 13 or any time on October 14, if the pretrial conference could be reset. When petitioner's counsel failed to appear at the pretrial conference, the Court, acting sua sponte, reviewed the history of the case, found that petitioner's counsel had failed to indicate any reasonable excuse for his nonappearance, and dismissed the action "for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action."Held: the judgment is affirmed. Pp. 370 U. S. 627-636.(a) The long recognized inherent power of Federal District Courts, acting on their own initiative, to dismiss cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief has not been restricted by Federal Rule of Civil Procedure 41(b) to cases in which the defendant moves for dismissal. Pp. 370 U. S. 629-632.(b) The circumstances here were such as to dispense with the necessity for advance notice and hearing before dismissing the case. Pp. 370 U. S. 632-633.(c) Petitioner was bound by his lawyer's conduct on the basis of which the action was dismissed. Pp. 370 U. S. 633-634. Page 370 U. S. 627(d) On the record in this case, it cannot be said that the District Court's dismissal of this action for failure to prosecute amounted to an abuse of discretion. Pp. 370 U. S. 633-636.291 F.2d 542, affirmed.

1973_73-38

MR. JUSTICE POWELL delivered the opinion of the Court.The United States brought this civil antitrust action under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. 18, to challenge a proposed merger between two commercial banks. The acquiring bank is a large, nationally chartered bank based in Seattle, Washington, and the acquired bank is a medium-size, state-chartered bank located at the opposite end of the State in Spokane. The banks are not direct competitors to any significant degree in Spokane or any other part of the State. They have no banking office in each other's home cities. The merger agreement would substitute the acquiring bank for the acquired bank in Spokane, and would permit the former for the first time to operate as a direct participant in the Spokane market.The proposed merger would have no effect on the number of banks in Spokane. The United States bases its case exclusively on the potential competition doctrine under 7 of the Clayton Act. It contends that, if the merger is prohibited, the acquiring bank would find an alternative and more competitive means for entering the Spokane area, and that the acquired bank would ultimately develop by internal expansion or mergers with smaller banks into an actual competitor of the acquiring bank and other large banks in sections of the State outside Spokane. The Government further submits that the merger would terminate the alleged procompetitive influence that the acquiring bank presently exerts over Spokane banks due to the potential for it entry into that market.After a full trial, the District Court held against the Government on all aspects of the case. We affirm that court's judgment. We hold that, in applying the potential Page 418 U. S. 606 competition doctrine to commercial banking, courts must take into account the extensive federal and state regulation of banks, particularly the legal restraints on entry unique to this line of commerce. The legal barriers to entry in the instant case, notably state law prohibitions against de novo branching, against branching from a branch office, and against multibank holding companies, compel us to conclude that the challenged merger is not in violation of § 7.IBACKGROUNDA. Facts.The acquiring bank, National Bank of Commerce (NBC), is a national banking association with its principal office in Seattle, Washington. Located in the northwest corner of the State, Seattle is the largest city in Washington. NBC is a wholly owned subsidiary of a registered bank holding company, Marine Bancorporation, Inc. (Marine), and in terms of assets, deposits, and loans is the second largest banking organization with headquarters in the State of Washington. At the end of 1971, NBC had total assets of $1.8 billion, total deposits of $1.6 billion, and total loans of $881.3 million. [Footnote 1] It operates 107 branch banking offices within the State, 59 of which are located in the Seattle metropolitan area and 31 of which are in lesser developed sections of eastern Washington. In order of population, the four major Page 418 U. S. 607 metropolitan areas in Washington are Seattle, Tacoma, Spokane, and Everett. NBC has no branch offices in the latter three areas.The target bank, Washington Trust Bank (WTB), founded in 1902, is a state bank with headquarters in Spokane. Spokane is located in the extreme eastern part of the State, approximately 280 road miles from Seattle. It is the largest city in eastern Washington, with a population of 170,000 within the corporate limits and of approximately 200,000 in the overall metropolitan area. The city has a substantial commercial and industrial base. The surrounding region is sparsely populated, and is devoted largely to agriculture, mining, and timber. Spokane serves as a trade center for this region. NBC, the acquiring bank, has had a longstanding interest in securing entry into Spokane.WTB has seven branch offices, six in the city of Spokane and one in Opportunity, a Spokane suburb. WTB is the eighth largest banking organization with headquarters in Washington and the ninth largest banking organization in the State. At the end of 1971, it had assets of $112 million, total deposits of $95.6 million, and loans of $57.6 million. It controls 17.4% of the 46 commercial banking offices in the Spokane metropolitan area. It is one of 12 middle-size banks in Washington (i.e., banks with assets in the $30 million to $250 million range).WTB is well managed and profitable. From December 31, 1966, to June 30, 1972, it increased its percentage of total deposits held by banking organizations in the Spokane metropolitan area from 16.6% to 18.6%. The amount of its total deposits grew by approximately 50% during that period, a somewhat higher rate of increase than exhibited by all banking organizations operating in Spokane at the same time. [Footnote 2] Although WTB has exhibited Page 418 U. S. 608 a pattern of moderate growth, at no time during its 70-year history has it expanded outside the Spokane metropolitan area.As of June 30, 1972, there were 91 national and state banking organizations in Washington. The five largest in the State held 74.3% of the State's total commercial Page 418 U. S. 609 bank deposits and operated 61.3% of its banking offices. At that time, the two largest in the State, Seattle-First National Bank and NBC, held 51.3% of total deposits and operated 36.5% of the banking offices in Washington. [Footnote 3] There are six banking organizations operating in the Spokane metropolitan area. One organization, Washington Bancshares, Inc., controls two separate banks and their respective branch offices. As of midyear 1972, this organization in the aggregate held 42.1% of total deposits in the area. Seattle-First National Bank, by comparison, held 31.6%. The target bank held 18.6% of total deposits at that time, placing it third in the Spokane area behind Washington Bancshares, Inc., and Seattle-First National Bank. Thus, taken together, Washington Bancshares, Seattle-First National Bank, and WTB hold approximately 92% of total deposits in the Spokane area. None of the remaining three commercial banks in Spokane holds a market share larger than 3.1% [Footnote 4] One of these banks, Farmers & Merchants Bank, has offices only in a Spokane suburb.The degree of concentration of the commercial banking business in Spokane may well reflect the severity of Washington's statutory restraints on de novo geographic expansion by banks. Although Washington permits branching, the restrictions placed on that method of internal Page 418 U. S. 610 growth are stringent. Subject to the approval of the state supervisor of banking, Washington banks with sufficient paid-in capital may open branches in the city or town in which their headquarters are located, the unincorporated areas of the county in which their headquarters are located, and incorporated communities which have no banking office. Wash.Rev.Code Ann. § 30.40.020 (Supp. 1973). But under state law, no state-chartered bank"shall establish or operate any branch . . . in any city or town outside the city or town in which its principal place of business is located in which any bank, trust company or national banking association regularly transacts a banking or trust business, except by taking over or acquiring an existing bank, trust company or national banking association. . . ."Ibid. Since federal law subjects nationally chartered banks to the branching limitations imposed on their state counterparts, [Footnote 5] national and state banks in Washington are restricted to mergers or acquisitions in order to expand into cities and towns with preexisting banking organizations.The ability to acquire existing banks is also limited by a provision of state law requiring that banks incorporating in Washington include in their articles of incorporation a clause forbidding a new bank from merging with or permitting its assets to be acquired by another bank for a period of at least 10 years, without the consent of the state supervisor of banking. Wash.Rev.Code Ann. § 30.08.020(7) (1961 and Supp. 1973). [Footnote 6] In addition, Page 418 U. S. 611 once a bank acquires or takes over one of the banks operating in a city or town other than the acquiring bank's principal place of business, it cannot branch from the acquired bank. Wash.Rev.Code Ann. § 30.40.020 (Supp. 1973). Thus, an acquiring bank that enters a new city or town containing banks other than the acquired bank is restricted to the number of bank offices obtained at the time of the acquisition. Moreover, multibank holding companies are prohibited in Washington. Wash.Rev.Code Ann. § 30.04.230 (Supp. 1973). [Footnote 7] Under state law, no Page 418 U. S. 612 corporation in Washington may own, hold, or control more than 25% of the capital stock of more than one bank. Ibid. Violations of the one-bank holding company statute are gross misdemeanors carrying a possible penalty of forfeiture of a corporate charter. Ibid. Accordingly, it is not possible in Washington to achieve the rough equivalent of free branching by aggregating a number of unit banks under a bank holding company. [Footnote 8]B. The Proceedings.In February, 1971, Marine, NBC, and WTB agreed to merge the latter into NBC. NBC, as the surviving bank, would operate all eight banking office of WTB as branches of NBC. In March, 1971, NBC and WTB applied to the Comptroller of the Currency pursuant to the Page 418 U. S. 613 Bank Merger ct of 1966 for approval of the merger. [Footnote 9] As required by that Act, see 12 U.S.C. § 1828(c)(4), the Comptroller requested "reports on the competitive factors involved" from the Attorney General, the Federal Deposit Insurance Corporation, and the Board of Governors of the Federal Reserve System. Each of these agencies submitted a negative report on the competitive effects of the merger. The Attorney General relied on the reasons advanced in the instant case. The latter two agencies based their conclusions primarily on the degree of concentration in commercial banking in Washington as a whole.The Comptroller approved the merger in a report issued September 24, 1971. He concluded that state law precluded NBC from branching in Spokane and "effectively prevented" NBC from causing a new Spokane bank to be formed which could later be treated as a merger partner. He noted that state law prevented the only independent small bank with offices located within the city boundaries of Spokane from merging with NBC, since that bank was state chartered, had been founded in 1965, and was subject to the minimum 10-year restriction against sale of a new bank set out in Wash.Rev.Code Page 418 U. S. 614 Ann. § 30.08.020(7) (1961 and Supp. 1973). The Comptroller relied heavily on the view that the merger would contribute to the convenience and needs of bank customers in Spokane by bringing to them services not previously provided by WTB.Acting within the 30-day limitation period set out in the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(7), the United States then commenced this action in the United States District Court for the Western District of Washington, challenging the legality of the merger under § 7 of the Clayton Act. [Footnote 10] As a result, the merger was automatically stayed. 12 U.S.C. § 1828(c)(7)(A). Pursuant to 12 U.S.C. § 1828(c)(7)(D), the Comptroller intervened in support of the merger as a party defendant.Prior to trial, the United States dropped all allegations concerning actual competition between the merger partners. [Footnote 11] The remainder of the complaint addressed the subject of potential competition. The United States Page 418 U. S. 615 sought to establish that the merger "may . . . substantially . . . lessen competition" within the meaning of § 7 in three ways: by eliminating the prospect that NBC, absent acquisition of the market share represented by WTB, would enter Spokane de novo or through acquisition of a smaller bank, and thus would assist in deconcentrating that market over the long run; by ending present procompetitive effects allegedly produced in Spokane by NBC's perceived presence on the fringe of the Spokane market; and by terminating the alleged probability that WTB as an independent entity would develop through internal growth or through mergers with other medium-size banks into a regional or ultimately state-wide counterweight to the market power of the State's largest banks. The Government's first theory -- alleged likelihood of de novo or foothold entry by NBC if the challenged merger were blocked -- was the primary basis upon which this case was presented to the District Court. [Footnote 12]At the close of final oral argument following a week-long trial, the District Judge ruled for the defendants from the bench. Two weeks later, he adopted without change the defendants' proposed findings of facts and conclusions of law, the latter consisting of seven sentences. 1971 Trade Cas. � 74,496, p. 94,244 (1973). [Footnote 13] Page 418 U. S. 616 The court found that the merger would "substantially" increase competition in commercial banking in the Spokane metropolitan area, and would have "no inherent anticompetitive effect. . . ." Ibid. In light of the legal and economic barriers to any other method of entry, the court further found "no reasonable probability" that, absent the challenged merger, NBC would enter the Spokane market in the "reasonably foreseeable future." Id. at 94,245.According to the District Court, Washington law forbade NBC from establishing de novo branches in Spokane, and the Government had failed to establish that there was any existing bank in Spokane other than WTB "available for acquisition by NBC on any reasonably acceptable basis at any time in the foreseeable future, or at all." Ibid. Moreover, any attempt by NBC to enter de novo by assisting in the formation of and then acquiring a newly chartered bank in Spokane "even if it could be legally accomplished," [Footnote 14] or to undertake a foothold Page 418 U. S. 617 acquisition, would not be economically feasible. Ibid. In addition to noting the past and projected slow growth of the Spokane area, the court found that the ability to branch in a metropolitan area was essential to effective competition in the banking business. Ibid. Under state law, NBC would be unable to open new branch offices in Spokane if it made a foothold acquisition or helped form and then acquired a new bank. These and other factors rendered "negative" the prospects for growth of a foothold acquisition or of a sponsored bank started from scratch. Ibid. This was confirmed by the experience of another large banking organization not based in Spokane that had entered the city through a foothold acquisition in 1964 and subsequently had been unable to expand the market share of the acquired bank. Id. at 94,245-94,246.The court found no perceptible procompetitive effect deriving from NBC's pre-merger presence on the fringe of the Spokane market. Id. at 94,246. It also held that the Government had failed to carry its burden of proving a reasonable probability that WTB, absent the merger, would expand beyond the Spokane market by de novo growth or through combination with another medium-size bank. Ibid. It found no probability that NBC would be "entrenched as a dominant bank in the Page 418 U. S. 618 Spokane metropolitan area" as a result of the merger, and it could find no likelihood that the merger would trigger a series of defensive mergers by other banks in the State. Id. at 94,246-94,247. [Footnote 15]On the basis of its findings, the District Court dismissed the Government's complaint. The Government thereupon brought this direct appeal under the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. 29. We noted probable jurisdiction. 414 U.S. 907 (1973).IITHE RELEVANT MARKETSDetermination of the relevant product and geographic markets is "a necessary predicate" to deciding whether a merger contravenes the Clayton Act. United States v. Du Pont & Co., 353 U. S. 586, 353 U. S. 593 (1957); Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 324 (1962). The District Court found that the relevant product market "within which the competitive effect of the merger is to be judged" is the "business of commercial banking (and the cluster of products and services denoted thereby). . . ." 1973-1 Trade Cas. � 74,496, p. 94,243. The parties do Page 418 U. S. 619 not dispute this finding, and, in any event, it is in full accord with our precedents. [Footnote 16]The District Court found that the relevant geographic market is the Spokane metropolitan area,"consisting of the City of Spokane and the populated areas immediately adjacent thereto, including the area extending easterly through the suburb of Opportunity toward the Idaho border. . . ."Id. at 94,244. This area extends approximately five miles to the west and south and 10 miles to the north and east of the center of the city. It is wholly within and considerably smaller than Spokane County, and is surrounded by a sparsely populated region, with no nearby major metropolitan centers. It contains all eight of the target bank's offices. On the basis of the record, we have no reason to doubt that it constitutes a reasonable approximation of the "localized" banking market in which Spokane banks offer the major part of their services and to which local consumers can practicably turn for alternatives. E.g., United States v. Phillipsburg National Bank, 399 U. S. 350, 399 U. S. 362-365 (1970). It is also the area where "the effect of the merger on competition will be direct and immediate . . . ," which as this Court has held is the appropriate "section of the country" for purposes of § 7. United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 357 (1963). Accordingly, we affirm the District Court's holding that the Spokane metropolitan area is the appropriate geographic market for determining the legality of the merger.Prior to trial, the Government stipulated that the Spokane area is a relevant geographic market in the instant Page 418 U. S. 620 case, and there is no dispute that it is the only banking market in which WTB is a significant participant. Nevertheless, the Government contends that the entire State is also an appropriate "section of the country" in this case. It is conceded that the State is not a banking market. But the Government asserts that the State is an economically differentiated region, because its boundaries delineate an area within which Washington banks are insulated from most forms of competition by out-of-state banking organizations. The Government further argues that this merger, and others it allegedly will trigger, may lead eventually to the domination of all banking in the State by a few large banks, facing each other in a network of local, oligopolistic banking markets. This assumed eventual state-wide linkage of local markets, it is argued, will enhance state-wide the possibility of parallel, standardized, anticompetitive behavior. This concern for the possible state-wide consequences of geographic market extension mergers by commercial banks appears to be an important reason for the Government's recent efforts to block such mergers through an application of the potential competition doctrine under § 7. [Footnote 17]The Government's proposed reading of the "any section of the country" phrase of § 7 is at variance with this Court's § 7 cases, and we reject it. Without exception, the Court has treated "section of the country" and "relevant geographic market" as identical, [Footnote 18] and it has defined Page 418 U. S. 621 the latter concept as the area in which the goods or services at issue are marketed to a significant degree by the acquired firm. E.g., Philadelphia National Bank, supra, at 374 U. S. 357-362. [Footnote 19] In cases in which the acquired firm markets its products or services on a local, regional, and national basis, the Court has acknowledged the existence of more than one relevant geographic market. [Footnote 20] But in no previous § 7 case has the Court determined the legality of a merger by measuring its effects on areas where the acquired firm is not a direct competitor. In Page 418 U. S. 622 urging that the legality of this merger be gauged on a state-wide basis, the Government is suggesting that we take precisely that step, because, as it concedes, the section of the country in which WTB markets by far the greatest portion of its services, due to the predominantly localized character of commercial banking, is the Spokane metropolitan area. [Footnote 21] Under the precedents, we decline the Government's invitation. We hold that, in a potential competition case like this one, the relevant geographic market or appropriate section of the country is the area in which the acquired firm is an actual, direct competitor.Apart from the fact that the Government's state-wide approach is not supported by the precedents, it is simply too speculative on this record. There has been no persuasive showing that the effect of the merger on a state-wide basis "may be substantially to lessen competition" within the meaning of § 7. To be sure, § 7 was designed to arrest mergers "at a time when the trend to a lessening of competition in a line of commerce [is] still in its incipiency." Brown Shoe Co., 370 U.S. at 370 U. S. 317. See, e.g., United States v. Von's Grocery Co., 384 U. S. 270, 384 U. S. 277 (1966). Moreover, the proscription expressed in § 7 against mergers "when a tendency' toward monopoly or [a] `reasonable likelihood' of a substantial lessening of competition in the relevant market is shown," United States v. Penn-Olin Chemical Co., 378 U. S. 158, 378 U. S. 171 (1964), applies alike to actual and potential competition cases. Ibid. But it is to be remembered that § 7 deals Page 418 U. S. 623 in "probabilities," not "ephemeral possibilities." Brown Shoe Co., supra, at 370 U. S. 323. [Footnote 22] The Government's underlying concern for a linkage or network of state-wide oligopolistic banking markets is, on this record at least, considerably closer to "ephemeral possibilities" than to "probabilities." To assume, on the basis of essentially no evidence, that the challenged merger will tend to produce a state-wide linkage of oligopolies is to espouse a per se rule against geographic market extension mergers like the one at issue here. No § 7 case from this Court has gone that far, [Footnote 23] and we do not do so today. For the purpose of this case, the appropriate "section of the country" and the "relevant geographic market" are the same the Spokane metropolitan area.IIIPOTENTIAL-COMPETITION DOCTRINEThe term "potential competitor" appeared for the first time in a § 7 opinion of this Court in United States v. El Paso Natural Gas Co., 376 U. S. 651, 376 U. S. 659 (1964). El Paso was in reality, however, an actual competition, rather than a potential competition case. [Footnote 24] The potential Page 418 U. S. 624 competition doctrine has been defined in major part by subsequent cases, particularly United States v. Falstaff Brewing Corp., 410 U. S. 526 (1973). [Footnote 25] Unequivocal proof that an acquiring firm actually would have entered de novo but for a merger is rarely available. [Footnote 26] Thus, as Falstaff indicates, the principal focus of the doctrine is on the likely effects of the pre-merger position of the acquiring firm on the fringe of the target market. In developing and applying the doctrine, the Court has recognized that a market extension merger may be unlawful if the target market is substantially concentrated, if the acquiring firm has the characteristics, capabilities, and economic incentive to render it a perceived potential Page 418 U. S. 625 de novo entrant, and if the acquiring firm's pre-merger presence on the fringe of the target market, in fact, tempered oligopolistic behavior on the part of existing participants in that market. In other words, the Court has interpreted § 7 as encompassing what is commonly known as the "wings effect" -- the probability that the acquiring firm prompted pre-merger procompetitive effects within the target market by being perceived by the existing firms in that market as likely to enter de novo. Falstaff, supra at 410 U. S. 531-537. [Footnote 27] The elimination of such present procompetitive effects may render a merger unlawful under § 7.Although the concept of perceived potential entry has been accepted in the Court's prior § 7 cases, the potential competition theory upon which the Government places principal reliance in the instant case has not. The Court has not previously resolved whether the potential competition doctrine proscribes a market extension merger solely on the ground that such a merger eliminates the prospect for long-term deconcentration of an oligopolistic market that, in theory might result if the acquiring firm were forbidden to enter except through a de novo undertaking or through the acquisition of a small existing entrant (a so-called foothold or toehold acquisition). Falstaff expressly reserved this issue. [Footnote 28] Page 418 U. S. 626The government's potential competition argument in the instant case proceeds in five steps. First, it argues that the potential competition doctrine applies with full force to commercial banks. Second, it submits that the Spokane commercial banking market is sufficiently concentrated to invoke that doctrine. Third, it urges us to resolve in its favor the question left open in Falstaff. Fourth, it contends that, without regard to the possibility of future deconcentration of the Spokane market, the challenged merger is illegal under established doctrine because it eliminates NBC as a perceived potential entrant. Finally, it asserts that the merger will eliminate WTB's potential for growth outside Spokane. We shall address those points in the order presented.A. Application of the Doctrine to Commercial Banks.Since United States v. Philadelphia National Bank, 374 U. S. 321 (1963), the Court has taken the view that, as a general rule, standard § 7 principles applicable to unregulated industries apply as well to mergers between commercial banks. See also United States v. First National Bank, 376 U. S. 665 (1964). Congress reacted to Philadelphia National Bank by including in the Bank Merger Act of 1966 a "convenience and needs" defense uniquely applicable to commercial banks. 12 U.S.C. §§ 1828(c)(5)(B) and (c)(7)(B). Subsequent cases have revealed, however, that that defense comes into play only after a district court has made a de novo determination of the status of a bank merger under the Clayton Act. See United States v. Third National Bank, 390 U. S. 171 (1968); United States v. First City National Bank, 386 U. S. 361 (1967). As the Court noted in Phillipsburg National Bank, supra, "the antitrust standards of . . . Page 418 U. S. 627 Philadelphia National Bank . . . were preserved in the Bank Merger Act of 1966." 399 U.S. at 399 U. S. 358. [Footnote 29]Although the Court's prior bank merger case have involved combinations between actual competitors operating in the same geographic markets, an element that distinguishes them factually from this case, they nevertheless are strong precedents for the view that § 7 doctrines are applicable to commercial banking. In accord with the general principles of those cases, we hold that geographic market extension mergers by commercial banks must pass muster under the potential competition doctrine. We further hold, however, that the application of the doctrine to commercial banking must take into account the unique federal and state regulatory restraints on entry into that line of commerce. Failure to do so would produce misconceptions that go to the heart of the doctrine itself.The Government's present position has evolved over a series of eight District Court cases, all of them decided unfavorably to its view. [Footnote 30] The conceptual difficulty Page 418 U. S. 628 with the Government's approach, and an important reason why it has been uniformly unsuccessful in the district courts, is that it fails to accord full weight to the extensive federal and state regulatory barriers to entry into commercial banking. [Footnote 31] This omission is of great importance, because ease of entry on the part of the acquiring firm is a central premise of the potential competition doctrine. [Footnote 32]Unlike, for example, the beer industry, see Falstaff Brewing Corp., supra, entry of new competitors into the commercial banking field is "wholly a matter of governmental grace . . . ," and "far from easy." Philadelphia National Bank, supra at 374 U. S. 367, and n. 44. Beer manufacturers are free to base their decisions regarding entry and the scale of entry into a new geographic market on nonregulatory considerations, including their own financial capabilities, their long-range goals as to markets, Page 418 U. S. 629 the cost of creating new production and distribution facilities, and, above all, the profit prospects in the target market. They need give no thought to public needs and convenience. No comparable freedom exists for commercial banks. Ease of entry into a market presumes ease of exit -- i.e., the withdrawal or financial collapse of a certain number of participants in that market. Reflecting this country's bitter experience of four decades ago that "[a] bank failure is a community disaster . . . ," [Footnote 33] entry into and exit from the commercial banking business have been extensively regulated by the Federal and State Governments. The regulatory barriers to entry include federal and state supervisory controls over the number of bank charters to be granted, designed to limit the number of banks operating in any particular market and thus to prevent bank failures. See id. at 374 U. S. 328. In addition, no branch, no matter how small, may be opened without prior approval of the appropriate bank regulatory agency. Moreover, there are state law restrictions, such as those in force in Washington, on de novo geographic expansion through branching and multibank holding companies. As noted earlier, Washington statutes forbid branching into cities and towns where the expanding bank does not maintain its headquarters and other banks operate, and they forbid branching from a branch in such areas. See supra at 418 U. S. 609-611. Similarly, Washington permits only one-bank holding companies. Supra at 418 U. S. 611-612.In Philadelphia National Bank, supra, the Court relied on regulatory barriers to entry to support its conclusion that mergers between banks in direct competition in the same market must be scrutinized with particular care under § 7. 374 U.S. at 374 U. S. 352, 374 U. S. 367-370, 374 U. S. 372. But the same Page 418 U. S. 630 restrictions on new entry render it difficult to hold that a geographic market extension merger by a commercial bank is unlawful under the potential competition doctrine. Such limitations often significantly reduce, if they do not eliminate, the likelihood that the acquiring bank is either a perceived potential de novo entrant or a source of future competitive benefits through de novo or foothold entry. Similarly, the Court noted in Philadelphia National Bank that, under applicable state law, de novo branching in the relevant market was permissible and presented an "alternative to the merger route. . . ." Id. at 374 U. S. 370. In this case, by contrast, there are serious questions whether an "alternative to the merger route" through branching or a functional equivalent is a legal or feasible method of entry by NBC into the Spokane market.B. Structure of the Spokane Market.Since the legality of the challenged merger must be judged by its effects on the relevant product and geographic markets, commercial banking in the Spokane metropolitan area, it is imperative to determine the competitive characteristics of commercial banking in that section of the country. The potential competition doctrine has meaning only as applied to concentrated markets. That is, the doctrine comes into play only where there are dominant participants in the target market engaging in interdependent or parallel behavior and with the capacity effectively to determine price and total output of goods or services. If the target market performs as a competitive market in traditional antitrust terms, the participants in the market will have no occasion to fashion their behavior to take into account the presence of a potential entrant. The present procompetitive effects that a perceived potential entrant may produce in an Page 418 U. S. 631 oligopolistic market will already have been accomplished if the target market is performing competitively. Likewise, there would be no need for concern about the prospects of long-term deconcentration of a market which is, in fact, genuinely competitive.In an effort to establish that the Spokane commercial banking market is oligopolistic, the Government relied primarily on concentration ratios indicating that three banking organizations (including WTB) control approximately 92% of total deposits in Spokane. The District Court held against the Government on this point, finding that "a highly competitive market" existed which "does not suffer from parallel or other anticompetitive practices attributable to undue market power." 1971 Trade Cas. � 74,496, p. 94,246. The court apparently gave great weight to the testimony of the banks' expert witnesses concerning the number of bank organizations and banking offices operating in the Spokane metropolitan area. The record indicates that neither the Government nor the appellees undertook any significant study of the performance, as compared to the structure, of the commercial banking market in Spokane.We conclude that, by introducing evidence of concentration ratios of the magnitude of those present here the Government established a prima facie case that the Spokane market was a candidate for the potential competition doctrine. On this aspect of the case, the burden was then upon appellees to show that the concentration ratios, which can be unreliable indicators of actual market behavior, see United States v. General Dynamics Corp., 415 U. S. 486 (1974), did not accurately depict the economic characteristics of the Spokane market. In our view, appellees did not carry this burden, and the District Court erred in holding to the contrary. Appellees introduced no significant evidence of the absence of parallel Page 418 U. S. 632 behavior in the pricing or providing of commercial bank services in Spokane. [Footnote 34]We note that it is hardly surprising that the Spokane commercial banking market is structurally concentrated. As the Government's expert witness conceded, all banking markets in the country are likely to be concentrated. [Footnote 35] This is so because, as a country, we have made the policy judgment to restrict entry into commercial banking in order to promote bank safety. Thus, most banking markets, in theory, will be subject to the potential competition doctrine. But the same factor that usually renders such markets concentrated and theoretical prospects for potential competition § 7 cases -- regulatory barriers to new entry -- will also make it difficult to establish that the doctrine invalidates a particular geographic market extension merger.C. Potential De Novo or Foothold Entry.The third step in the Government's argument, resolution of the question reserved in Falstaff, was the primary basis on which the case was presented to the District Page 418 U. S. 633 Court [Footnote 36] and to us. The Government contends that the challenged merger violates § 7 because it eliminates the alleged likelihood that, but for the merger, NBC would enter Spokane de novo or through a foothold acquisition. Utilization of one of these methods of entry, it is argued, would be likely to produce deconcentration of the Spokane market over the long run or other procompetitive effects, because NBC would be required to compete vigorously to expand its initially insignificant market share.Two essential preconditions must exist before it is possible to resolve whether the Government's theory, if proved, establishes a violation of § 7. It must be determined: (i) that, in fact, NBC has available feasible means for entering the Spokane market other than by acquiring WTB; and (ii) that those means offer a substantial likelihood of ultimately producing deconcentration of that market or other significant procompetitive effects. The parties are in sharp disagreement over the existence of each of these preconditions in this case. There is no dispute that NBC possesses the financial capability and incentive to enter. The controversy turns on what methods of entry are realistically possible and on the likely effect of various methods on the characteristics of the Spokane commercial banking market.It is undisputed that, under state law, NBC cannot establish de novo branches in Spokane and that its parent holding company cannot hold more than 25% of the stock of any other bank. Entry for NBC into Spokane therefore must be by acquisition of an existing bank. The Government contends that NBC has two distinct alternatives for acquisition of banks smaller than WTB and that either alternative would be likely to benefit the Spokane commercial banking market.First, the Government contends that NBC could arrange Page 418 U. S. 634 for the formation of a new bank (a concept known as "sponsorship"), insure that the stock for such a new bank is placed in friendly hands, and then ultimately acquire that bank. Appellees respond that this approach would violate the spirit, if not the letter, of state law restrictions on bank branching. They note that this method would require the issuance of either a state or a national charter, and they assert that neither state nor federal banking authorities would be likely to grant a charter for a new bank in a static, "well banked" market like Spokane. Moreover, it is argued that such officials would be certain to refuse to do so where the purpose of the scheme was to avoid the requirements of the state branching law. [Footnote 37] Appellees further note that the stock and assets of any new state bank in Washington are inalienable for at least 10 years without approval of state banking officials, see Wash.Rev.Code Ann. § 30.08.020(7), and they argue that such officials would refuse to grant approval for sale as part of a sponsorship plan.The Government counters by pointing to instances in which sponsorship-acquisition of small banks by large banks has occurred in Washington, on occasion with the apparent knowledge and asserted approval of bank regulatory officials and within less than 10 years of the formation of the new bank. [Footnote 38] Indeed, the Government contends that NBC is presently sponsoring a small bank in an unrelated area of Washington with the purpose of ultimate acquisition and conversion of the bank into a branch of NBC. Appellees reply that, if sponsorship by other banks has occasionally occurred, it is nonetheless Page 418 U. S. 635 illegal under state law, and that prior instances of tolerated illegality do not convert an illegal process into a legal one. NBC also denies that it has ever engaged in sponsorship solely for the purpose of acquisition, and it insists that, even if a new bank is sponsored, there is no guarantee that the sponsor, rather than some other bank willing to outbid it, will acquire the sponsored bank. [Footnote 39] Appellees further point out, as is confirmed by the record, that the United States has not shown that any bank in Washington has ever used sponsorship-acquisition as a means of entering a major metropolitan area. In fact, the Government's principal witness in support of its sponsorship theory conceded on cross-examination that his bank "wouldn't consider trying to use that method in getting into" a major city. [Footnote 40]In its findings and conclusions, the District Court did not resolve the question of the status of the Government's proposed sponsorship-acquisition approach under Washington's banking statutes. [Footnote 41] We similarly decline to decide this issue. Although we note that the intricate Page 418 U. S. 636 procedure for entry by sponsorship espoused by the Government can scarcely be compared to the de novo entry opportunities available to unregulated enterprises such as beer producers, see Falstaff, supra, we will assume, arguendo, that NBC conceivably could succeed in sponsoring and then acquiring a new bank in Spokane at some indefinite time in the future. It does not follow from this assumption, however, that this method of entry would be reasonably likely to produce any significant procompetitive benefits in the Spokane commercial banking market. To the contrary, it appears likely that such a method of entry would not significantly affect that market.State law would not allow NBC to branch from a sponsored bank after it was acquired. NBC's entry into Spokane therefore would be frozen at the level of its initial acquisition. Thus, if NBC were to enter Spokane by sponsoring and acquiring a small bank, it would be trapped into a position of operating a single branch office in a large metropolitan area with no reasonable likelihood of developing a significant share of that market. [Footnote 42] This assumed method of entry therefore would offer little realistic hope of ultimately producing deconcentration of the Spokane market. Moreover, it is unlikely that a Page 418 U. S. 637 single new bank in Spokane with a small market share, and forbidden to branch, would have any other significant procompetitive effect on that market. The Government introduced no evidence, for example, establishing that the three small banks presently in Spokane have had any meaningful effect on the economic behavior of the large Spokane banks. In sum, it blinks reality to conclude that the opportunity for entry through sponsorship, assuming its availability, is comparable to the entry alternatives open to unregulated industries such as those involved in this Court's prior potential competition cases, [Footnote 43] or would be likely to produce the competitive effects of a truly unfettered method of entry. Since there is no substantial likelihood of procompetitive loss if the challenged merger is undertaken in place of the Government's sponsorship theory, we are unable to conclude that the effect of the former "may be substantially to lessen competition" within the meaning of the Clayton Act.As a second alternative method of entry, the Government proposed that NBC could enter by a foothold acquisition of one of two small, state-chartered commercial banks that operate in the Spokane metropolitan area. [Footnote 44] Appellees reply that one of those banks is located in a suburb, and has no offices in the city of Spokane, that, after an acquisition, NBC, under state law, could not branch from the suburb into the city, and that such a Page 418 U. S. 638 peripheral foothold cannot be viewed as an economically feasible method of entry into the relevant market. Appellees also point out that the second small bank was chartered in 1965, and thus, under state law, would not have been available for acquisition until at least four years after the 1971 NBC-WTB merger agreement.Granting the Government the benefit of the doubt that these two small banks were available merger partners for NBC, or were available at some not too distant time, it again does not follow that an acquisition of either would produce the long-term market structure benefits predicted by the Government. Once NBC acquired either of these banks, it could not branch from the acquired bank. This limitation strongly suggests that NBC would not develop into a significant participant in the Spokane market, a prospect that finds support in the record. In 1964, one of the largest bank holding companies in the country, through its Seattle-based subsidiary, acquired a foothold bank with two offices in Spokane. Eight years later, this bank, Pacific National Bank, held a mere 2.2% of total bank deposits in the Spokane metropolitan area, an insignificant increase over its share of the market at the date of the acquisition. See n 2, supra. An officer of this bank, called as a witness by the Government, attributed the poor showing to an inability under state law to establish further branches in Spokane. [Footnote 45]In sum, with regard to either of its proposed alternative methods of entry, the Government has offered an unpersuasive case on the first precondition of the question reserved in Falstaff -- that feasible alternative methods of entry, in fact, existed. Putting these difficulties aside, the Government simply did not establish the second precondition. It failed to demonstrate that the alternative means Page 418 U. S. 639 offer a reasonable prospect of long-term structural improvement or other benefits in the target market. In fact, insofar as competitive benefits are concerned, the Government is in the anomalous position of opposing a geographic market extension merger that will introduce a third full service banking organization to the Spokane market, where only two are now operating, in reliance on alternative means of entry that appear unlikely to have any significant procompetitive effect. [Footnote 46] Accordingly, we cannot hold for the Government on its principal potential competition theory. Indeed, since the preconditions for that theory are not present, we do not reach it, and therefore we express no view on the appropriate resolution of the question reserved in Falstaff. We reiterate that this case concerns an industry in which new entry is extensively regulated by the State and Federal Governments.D. Perceived Potential Entry.The Government's failure to establish that NBC has alternative methods of entry that offer a reasonable likelihood of producing procompetitive effects is determinative of the fourth step of its argument. Rational commercial bankers in Spokane, it must be assumed, are aware of the regulatory barriers that render NBC an unlikely or an insignificant potential entrant except by merger with WTB. In light of those barriers, it is improbable that Page 418 U. S. 640 NBC exerts any meaningful procompetitive influence over Spokane banks by "standing in the wings."Moreover, the District Court found as a fact that"the threat of entry by NBC into the Spokane market by any means other than the consummation of the merger, to the extent any such threat exists, does not have any significant effect on the competitive practices of commercial banks in that market, nor any significant effect on the level of competition therein."1973-1 Trade Cas. � 74,496, p. 94,246. In making this finding, it appears that the District Court "appraised the economic facts" about NBC and the Spokane market"in order to determine whether, in any realistic sense [NBC] could be said to be a potential competitor on the fringe of the market with likely influence on existing competition."Falstaff, 410 U.S. at 410 U. S. 533-534 (footnote omitted). Our review of the record indicates that the court's finding was not in error. The Government's only hard evidence of any "wings effect" was a memorandum written in 1962 by an officer of NBC expressing the view that Spokane banks were likely to engage in price competition as NBC approached their market. Evidence of an expression of opinion by an officer of the acquiring bank, not an official of a bank operating in the target market, in a memorandum written a decade prior to the challenged merger does not establish a violation of § 7.E. Elimination of WTB's Potential for Growth.In the final step of its argument, the Government challenges the merger on the ground that it will eliminate the prospect that WTB may expand outside its base in Spokane and eventually develop into a direct competitor with large Washington banks in other areas of the State. The District Court found, however, that the Government had "failed to establish . . . that there is any reasonable probability that WTB will expand into Page 418 U. S. 641 other banking markets. . . ." 1971 Trade Cas. � 74,496, p. 94,246. The record amply supports this finding. At no time in its 70-year history has WTB established branches outside the Spokane metropolitan area. Nor has it ever acquired another bank [Footnote 47] or received a merger offer other than the one at issue here. [Footnote 48] In sum, the Government's argument about the elimination of WTB's potential for expansion outside Spokane is little more than speculation. It provides no sound basis for overturning the District Court's holding.IV CONCLUSIONIn applying the doctrine of potential competition to commercial banking, courts must, as we have noted, take into account the extensive federal and state regulation of banks. Our affirmance of the District Court's judgment in this case rests primarily on state statutory barriers to de novo entry and to expansion following entry into a new geographic market. In States where such stringent barriers exist and in the absence of a likelihood of entrenchment, the potential competition doctrine -- grounded as it is on relative freedom of entry on the part of the acquiring firm -- will seldom bar a geographic market extension merger by a commercial bank. In States that permit free branching or multibank holding companies, courts hearing cases involving such mergers should take into account all relevant factors, including the barriers to entry created by state and federal control over the issuance of new bank charters. Testimony by responsible regulatory officials that they will not grant new charters in the target market is entitled to great weight, although it is not determinative. To avoid the Page 418 U. S. 642 danger of subjecting the enforcement of the antitrust laws to the policies of a particular bank regulatory official or agency, courts should look also to the size and growth prospects of the target market, the size and number of banking organizations participating in it, and past practices of regulatory agencies in granting charters. If regulatory restraints are not determinative, courts should consider the factors that are pertinent to any potential competition case, including the economic feasibility and likelihood of de novo entry, the capabilities and expansion history of the acquiring firm, and the performance as well as the structural characteristics of the target market.The judgment isAffirmed

U.S. Supreme CourtUnited States v. Marine Bancorporation, Inc., 418 U.S. 602 (1974)United States v. Marine Bancorporation, Inc.No. 73-38Argued April 23, 1974Decided June 26, 1974418 U.S. 602SyllabusThe United States brought this civil antitrust action under § 7 of the Clayton Act to challenge a proposed merger between two commercial banks, which would substitute the acquiring bank for the acquired bank in Spokane, Wash., and would permit the former for the first time to participate directly in the Spokane market. The acquiring bank, appellee National Bank of Commerce (NBC), is a large, nationally chartered bank based in Seattle, Wash., and a wholly owned subsidiary of appellee Marine Bancorporation, Inc., and, in terms of assets, deposits, and loans, is the second largest banking organization with headquarters in Washington, operating 107 branches in the State, including 59 in the Seattle metropolitan area and 31 in lesser developed eastern sections of the State, but none of which is in the Spokane metropolitan area. The acquired or target bank, appellee Washington Trust Bank (WTB), is a medium-size, state-chartered bank located in Spokane, with seven branches, six in the city and one in a suburb, and is the eighth largest bank with headquarters in Washington and the ninth largest in the State, controlling 17.4% of the 46 commercial banking offices and holding 18.6% or the third largest percentage of the total deposits in the Spokane metropolitan area. (The two banks with the largest percentages in the area hold 42.1% and 31.6%, respectively, of total deposits.) The Government bases its case exclusively on the potential competition doctrine, seeking to establish that the merger "may . . . substantially . . . lessen competition" within the meaning of § 7: (i) by eliminating the prospect that NBC, absent acquisition of the market share represented by WTB, would enter Spokane de novo or through acquisition of a smaller bank, and thus would assist in deconcentrating that market over the long run; (ii) by ending present procompetitive effects allegedly produced in Spokane by NBC's perceived presence on the fringe of the Spokane market; and (iii) by terminating the alleged probability Page 418 U. S. 603 that WTB as an independent entity would develop by internal expansion or mergers with other medium-size banks into a regional or ultimately state-wide actual competitor of NBC and other large banks. The District Court held against the Government on all aspects, and dismissed the complaint.Held:1. As "a necessary predicate" to deciding whether the proposed merger contravenes the Clayton Act, the District Court properly found that the relevant product market was the "business of commercial banking" and that the relevant geographic market was the Spokane metropolitan area. The entire State is not, despite the Government's contrary contention, an appropriate "section of the country" within the meaning of § 7, since, for the purpose of this case, the appropriate "section of the country" and the "relevant geographic market" are the same, being the area in which the acquired firm is an actual, direct competitor, and since, moreover, the Government has not shown that the effect of the merger on a state-wide basis "may be substantially to lessen competition" within the meaning of § 7. Pp. 418 U. S. 618-623.2. While geographic market extension mergers by commercial banks must pass muster under the potential competition doctrine, the application of the doctrine to commercial banking must take into account the extensive and unique federal and state regulatory restraints on entry into that line of commerce, including controls over the number of bank charters to be granted, prior bank regulatory agency approval of the opening of branches, and state law restrictions, such as those in Washington, on de novo geographic expansion through branching and multibank holding companies. Pp. 418 U. S. 626-630.3. The Government's evidence of concentration ratios in the Spokane commercial banking market established a prima facie case that that market was sufficiently concentrated to invoke the potential competition doctrine, and appellees did not demonstrate that such ratios inaccurately depicted the economic characteristics of the Spokane market. Pp. 630-632.4. In view of the legal barriers to entry, notably state law prohibitions against de novo branching, branching from a branch office, and multibank holding companies, the Government failed to sustain its burden of proof that the challenged merger violates § 7 by eliminating the likelihood that, but for the merger, NBC would enter Spokane de novo by means of sponsorship acquisition or through a foothold acquisition of a small state bank in the Spokane Page 418 U. S. 604 area, since it was not shown that either of the proposed alternative methods of entry was feasible or offered a substantial likelihood of ultimately producing deconcentration of the Spokane market or other significant procompetitive effects. Pp. 418 U. S. 632-6395. The Government's failure to establish that NBC has alternative methods of entry offering a reasonable likelihood of producing significant procompetitive effects is determinative of its contention that, without regard to the possibility of future deconcentration of the Spokane market, the challenged merger is illegal because it eliminates NBC as a perceived potential entrant. Assuming that commercial bankers in Spokane are aware of the regulatory barriers that render NBC an unlikely or insignificant potential entrant except by merger with WTB, it is improbable, in light of such barriers, that NBC exerts any meaningful procompetitive influence over Spokane banks by "standing in the wings." Pp. 418 U. S. 639-640.6. The record amply supports the District Court's finding that the Government "failed to establish . . . that there is any reasonable probability that WTB will expand into other banking markets," since at no time in its 70-year history has WTB established branches outside the Spokane area, acquired another bank, or received a merger offer other than the one at issue here. Pp. 418 U. S. 640-641.Affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 418 U. S. 642. DOUGLAS, J., took no part in the decision of this case. Page 418 U. S. 605

1971_69-5046

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST joined.Robert Apodaca, Henry Morgan Cooper, Jr., and James Arnold Madden were convicted, respectively, of assault with a deadly weapon, burglary in a dwelling, and Page 406 U. S. 406 grand larceny before separate Oregon juries, all of which returned less than unanimous verdicts. The vote in the cases of Apodaca and Madden was 11-1, while the vote in the case of Cooper was 10-2, the minimum requisite vote under Oregon law for sustaining a conviction. [Footnote 1] After their convictions had been affirmed by the Oregon Court of Appeals, 1 Ore.App. 483, 462 P.2d 1 (1969), and review had been denied by the Supreme Court of Oregon, all three sought review in this Court upon a claim that conviction of crime by a less than unanimous jury violates the right to trial by jury in criminal cases specified by the Sixth Amendment and made applicable to the States by the Fourteenth. See Duncan v. Louisiana, 391 U. S. 145 (1968). We granted certiorari to consider this claim, 400 U.S. 901 (1970), which we now find to be without merit.In Williams v. Florida, 399 U. S. 78 (1970), we had occasion to consider a related issue: whether the Sixth Amendment's right to trial by jury requires that all juries consist of 12 men. After considering the history of the 12-man requirement and the functions it performs in contemporary society, we concluded that it was not of constitutional stature. We reach the same conclusion today with regard to the requirement of unanimity. Page 406 U. S. 407ILike the requirement that juries consist of 12 men, the requirement of unanimity arose during the Middle Ages [Footnote 2] Page 406 U. S. 408 and had become an accepted feature of the common law jury by the 18th century. [Footnote 3] But, as we observed in Williams,"the relevant constitutional history casts considerable doubt on the easy assumption [Footnote 4] . . . that, if a Page 406 U. S. 409 given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution."Id. at 399 U. S. 92-93. The most salient fact in the scanty history of the Sixth Amendment, which we reviewed in full in Williams, is that, as it was introduced by James Madison in the House of Representatives, the proposed Amendment provided for trial"by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites. . . ."1 Annals of Cong. 435 (1789). Although it passed the House with little alteration, this proposal ran into considerable opposition in the Senate, particularly with regard to the vicinage requirement of the House version. The draft of the proposed Amendment was returned to the House in considerably altered form, and a conference committee was appointed. That committee refused to accept not only the original House language, but also an alternate suggestion by the House conferees that juries be defined as possessing "the accustomed requisites." Letter from James Madison to Edmund Pendleton, Sept. 23, 1789, in 5 Writings of James Madison 424 (G. Hunt ed.1904). Instead, the Amendment that ultimately emerged from the committee and then from Congress and the States provided only for trial"by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . ."As we observed in Williams, one can draw conflicting inferences from this legislative history. One possible inference is that Congress eliminated references to unanimity and to the other "accustomed requisites" of the jury because those requisites were thought already to be Page 406 U. S. 410 implicit in the very concept of jury. A contrary explanation, which we found in Williams to be the more plausible, is that the deletion was intended to have some substantive effect. See 399 U.S. at 399 U. S. 96-97. Surely one fact that is absolutely clear from this history is that, after a proposal had been made to specify precisely which of the common law requisites of the jury were to be preserved by the Constitution, the Framers explicitly rejected the proposal, and instead left such specification to the future. As in Williams, we must accordingly consider what is meant by the concept "jury," and determine whether a feature commonly associated with it is constitutionally required. And, as in Williams, our inability to divine "the intent of the Framers" when they eliminated references to the "accustomed requisites" requires that, in determining what is meant by a jury, we must turn to other than purely historical considerations.IIOur inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, at 399 U. S. 99-100. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. at 391 U. S. 156."Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen. . . ."Williams v. Florida, supra, at 399 U. S. 100. A requirement of unanimity, however, does not materially contribute to the exercise of this common sense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross-section of the community who have the duty and the opportunity to deliberate, Page 406 U. S. 411 free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of this function, we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit. [Footnote 5] But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served.IIIPetitioners nevertheless argue that unanimity serves other purposes constitutionally essential to the continued operation of the jury system. Their principal contention is that a Sixth Amendment "jury trial" made mandatory on the States by virtue of the Due Process Clause of the Fourteenth Amendment, Duncan v. Louisiana, supra, should be held to require a unanimous jury verdict in order to give substance to the reasonable doubt standard otherwise mandated by the Due Process Clause. See In re Winship, 397 U. S. 358, 397 U. S. 363-364 (1970).We are quite sure, however, that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable doubt standard developed separately from both the jury trial and the unanimous verdict. As the Court noted in the Winship case, the rule requiring proof of crime beyond a reasonable doubt did not crystallize in this country until after the Constitution was adopted. See Page 406 U. S. 412 id. at 397 U. S. 361. [Footnote 6] And in that case, which held such a burden of proof to be constitutionally required, the Court purported to draw no support from the Sixth Amendment.Petitioners' argument that the Sixth Amendment requires jury unanimity in order to give effect to the reasonable doubt standard thus founders on the fact that the Sixth Amendment does not require proof beyond a reasonable doubt at all. The reasonable doubt argument is rooted, in effect, in due process, and has been rejected in Johnson v. Louisiana, ante, p. 406 U. S. 356.IVPetitioners also cite quite accurately a long line of decisions of this Court upholding the principle that the Fourteenth Amendment requires jury panels to reflect a cross-section of the community. See, e.g., Whitus v. Georgia, 385 U. S. 545 (1967); Smith v. Texas, 311 U. S. 128 (1940); Norris v. Alabama, 294 U. S. 587 (1935); Strauder v. West Virginia, 100 U. S. 303 (1880). They then contend that unanimity is a necessary precondition for effective application of the cross-section requirement, Page 406 U. S. 413 because a rule permitting less than unanimous verdicts will make it possible for convictions to occur without the acquiescence of minority elements within the community.There are two flaws in this argument. One is petitioners' assumption that every distinct voice in the community has a right to be represented on every jury and a right to prevent conviction of a defendant in any case. All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U. S. 202, 380 U. S. 208-209 (1965); Cassell v. Texas, 339 U. S. 282, 339 U. S. 286-287 (1950); Akins v. Texas, 325 U. S. 398, 325 U. S. 403-404 (1945); Ruthenberg v. United States, 245 U. S. 480 (1918). No group, in short, has the right to block convictions; it has only the right to participate in the overall legal processes by which criminal guilt and innocence are determined.We also cannot accept petitioners' second assumption -- that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard. We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt Page 406 U. S. 414 or innocence based on prejudice, rather than the evidence. We accordingly affirm the judgment of the Court of Appeals of Oregon.It is so ordered

U.S. Supreme CourtApodaca v. Oregon, 406 U.S. 404 (1972)Apodaca v. OregonNo. 69-5046Argued March 1, 1971Reargued January 10, 1972Decided May 22, 1972406 U.S. 404SyllabusPetitioners, who were found guilty of committing felonies, by less than unanimous jury verdicts, which are permitted under Oregon law in noncapital cases, claim that their convictions, upheld on appeal, contravene their right to trial by jury under the Sixth and Fourteenth Amendments.Held: The judgment is affirmed. Pp. 406 U. S. 410-414, 406 U. S. 369-380.1 Ore.App. 483, 462 P.2d 691, affirmed.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST, concluded that:1. The Sixth Amendment guarantee of a jury trial, made applicable to the States by the Fourteenth (Duncan v. Louisiana, 391 U. S. 145), does not require that the jury's vote be unanimous. Pp. 406 U. S. 410-412.(a) The Amendment's essential purpose of "interpos[ing] between the accused and his accuser . . . the common sense judgment of a group of laymen" representative of a cross-section of the community, Williams v. Florida, 399 U. S. 78, 399 U. S. 100, is served despite the absence of a unanimity requirement. Pp. 406 U. S. 410-411.(b) Petitioners' argument that the Sixth Amendment requires jury unanimity in order to effectuate the reasonable doubt standard otherwise mandated by due process requirements is without merit, since that Amendment does not require proof beyond a reasonable doubt at all. Pp. 406 U. S. 411-412.2. Jury unanimity is not mandated by the Fourteenth Amendment requirements that racial minorities not be systematically excluded from the jury selection process; even when racial minority members are on the jury, it does not follow that their views will not be just as rationally considered by the other jury members as would be the case under a unanimity rule. Pp. 406 U. S. 412-414.MR. JUSTICE POWELL concluded that:1. Although, on the basis of history and precedent, the Sixth Amendment mandates unanimity in a federal jury trial, the Due Process Clause of the Fourteenth Amendment, while requiring States to provide jury trials for serious crimes, does not incorporate Page 406 U. S. 405 all the elements of a jury trial within the meaning of the Sixth Amendment, and does not require jury unanimity. Oregon's "ten of twelve" rule is not violative of due process. Pp. 406 U. S. 369-377.2. Nor is the Oregon provision inconsistent with the due process requirement that a jury be drawn from a representative cross-section of the community, as the jury majority remains under the duty to consider the minority viewpoint in the course of deliberation, and the usual safeguards exist to minimize the possibility of jury irresponsibility. Pp. 406 U. S. 378-380.WHITE, J., announced the Court's judgment and delivered an opinion, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, ante, p. 406 U. S. 365. POWELL, J., filed an opinion concurring in the judgment, ante, p. 406 U. S. 366. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, ante, p. 406 U. S. 380. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, ante, p. 406 U. S. 395. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 406 U. S. 414. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, ante, p. 406 U. S. 399.

1984_83-727

Justice Marshall delivered the opinion of the Court.In 1980, Tennessee proposed reducing the number of annual days of inpatient hospital care covered by its state Medicaid program. The question presented is whether the effect upon the handicapped that this reduction will have is cognizable under § 504 of the Rehabilitation Act of 1973 or its implementing regulations. We hold that it is not.IFaced in 1980-1981 with projected state Medicaid [Footnote 1] costs of $42 million more than the State's Medicaid budget of $388 million, the directors of the Tennessee Medicaid program decided to institute a variety of cost-saving measures. Among these changes was a reduction from 20 to 14 in the number of inpatient hospital days per fiscal year that Tennessee Medicaid would pay hospitals on behalf of a Medicaid recipient. Before the new measures took effect, respondents, Tennessee Medicaid recipients, brought a class action for declaratory and injunctive relief in which they alleged, inter alia, that the proposed 14-day limitation on inpatient coverage would have a discriminatory effect on the handicapped. [Footnote 2] Statistical evidence, which petitioners do not Page 469 U. S. 290 dispute, indicated that in the 1979-1980 fiscal year, 27.4% of all handicapped users of hospital services who received Medicaid required more than 14 days of care, while only 7.8% of nonhandicapped users required more than 14 days of inpatient care.Based on this evidence, respondents asserted that the reduction would violate § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. § 794, and its implementing regulations. Section 504 provides:"No otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ."29 U.S.C. § 794.Respondents' position was twofold. First, they argued that the change from 20 to 14 days of coverage would have a disproportionate effect on the handicapped and hence was discriminatory. [Footnote 3] The second, and major, thrust of respondents' attack was directed at the use of any annual limitation on the number of inpatient days covered, for respondents acknowledged that, given the special needs of the handicapped for medical care, any such limitation was likely to disadvantage the handicapped disproportionately. Respondents noted, however, that federal law does not require States to impose any annual durational limitation on inpatient coverage, Page 469 U. S. 291 and that the Medicaid programs of only 10 States impose such restrictions. [Footnote 4] Respondents therefore suggested that Tennessee follow these other States and do away with any limitation on the number of annual inpatient days covered. Instead, argued respondents, the State could limit the number of days of hospital coverage on a per-stay basis, with the number of covered days to vary depending on the recipient's illness (for example, fixing the number of days covered for an appendectomy); the period to be covered for each illness could then be set at a level that would keep Tennessee's Medicaid program as a whole within its budget. [Footnote 5] The State's refusal to adopt the plan was said to result in the imposition of gratuitous costs on the handicapped and thus to constitute discrimination under § 504.A divided panel of the Court of Appeals for the Sixth Circuit held that respondents had indeed established a prima facie case of a § 504 violation. Jennings v. Alexander, 715 F.2d 1036 (1983). The majority apparently concluded that any action by a federal grantee that disparately affects the handicapped states a cause of action under § 504 and its implementing regulations. Because both the 14-day rule and any annual limitation on inpatient coverage disparately Page 469 U. S. 292 affected the handicapped, the panel found that a prima facie case had been made out, and the case was remanded [Footnote 6] to give Tennessee an opportunity for rebuttal. According to the panel majority, the State on remand could either demonstrate the unavailability of alternative plans that would achieve the State's legitimate cost-saving goals with a less disproportionate impact on the handicapped, or the State could offer "a substantial justification for the adoption of the plan with the greater discriminatory impact." Id. at 1045. We granted certiorari to consider whether the type of impact at issue in this case is cognizable under § 504 or its implementing regulations, 465 U.S. 1021 (1984), and we now reverse.IIThe first question the parties urge on the Court is whether proof of discriminatory animus is always required to establish a violation of § 504 and its implementing regulations, or whether federal law also reaches action by a recipient of federal funding that discriminates against the handicapped by effect rather than by design. The State of Tennessee argues that § 504 reaches only purposeful discrimination against the handicapped. As support for this position, the State relies heavily on our recent decision in Guardians Assn. v. Civil Service Comm'n of New York City, 463 U. S. 582 (1983).In Guardians, we confronted the question whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which prohibits discrimination against racial and ethnic minorities in programs receiving federal aid, reaches both Page 469 U. S. 293 intentional and disparate impact discrimination. [Footnote 7] No opinion commanded a majority in Guardians, and Members of the Court offered widely varying interpretations of Title VI. Nonetheless, a two-pronged holding on the nature of the discrimination proscribed by Title VI emerged in that case. First, the Court held that Title VI itself directly reached only instances of intentional discrimination. [Footnote 8] Second, the Court held that actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI. [Footnote 9] In essence, then, we held that Title VI had delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily Page 469 U. S. 294 enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.Guardians, therefore, does not support petitioners' blanket proposition that federal law proscribes only intentional discrimination against the handicapped. Indeed, to the extent our holding in Guardians is relevant to the interpretation of § 504, Guardians suggests that the regulations implementing § 504, upon which respondents in part rely, could make actionable the disparate impact challenged in this case. [Footnote 10] Moreover, there are reasons to pause before too quickly extending even the first prong of Guardians to § 504. Cf. Consolidated Rail Corporation v. Darrone, 465 U. S. 624, 465 U. S. 632-633, n. 13 (1984) (recognizing distinctions between Title VI and § 504). [Footnote 11] Page 469 U. S. 295Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference -- of benign neglect. [Footnote 12] Thus, Representative Vanik, introducing the predecessor to § 504 in the House, [Footnote 13] described the treatment Page 469 U. S. 296 of the handicapped as one of the country's "shameful oversights," which caused the handicapped to live among society "shunted aside, hidden, and ignored." 117 Cong.Rec. 45974 (1971). Similarly, Senator Humphrey, who introduced a companion measure in the Senate, asserted that "we can no longer tolerate the invisibility of the handicapped in America. . . ." 118 Cong.Rec. 525-526 (1972). And Senator Cranston, the Acting Chairman of the Subcommittee that drafted § 504, [Footnote 14] described the Act as a response to "previous societal neglect." 119 Cong.Rec. 5880, 5883 (1973). See also 118 Cong.Rec. 526 (1972) (statement of cosponsor Sen. Percy) (describing the legislation leading to the 1973 Act as a national commitment to eliminate the "glaring neglect" of the handicapped). [Footnote 15] Federal agencies and commentators on the plight of the handicapped similarly have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus. [Footnote 16]In addition, much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if Page 469 U. S. 297 not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent. For example, elimination of architectural barriers was one of the central aims of the Act, see, e.g., S.Rep. No. 93-318, p. 4 (1973), yet such barriers were clearly not erected with the aim or intent of excluding the handicapped. Similarly, Senator Williams, the chairman of the Labor and Public Welfare Committee that reported out § 504, asserted that the handicapped were the victims of "[d]iscrimination in access to public transportation" and "[d]iscrimination because they do not have the simplest forms of special educational and rehabilitation services they need. . . ." 118 Cong.Rec. 3320 (1972). And Senator Humphrey, again in introducing the proposal that later became § 504, listed, among the instances of discrimination that the section would prohibit, the use of "transportation and architectural barriers," the "discriminatory effect of job qualification . . . procedures," and the denial of "special educational assistance" for handicapped children. Id. at 525-526. These statements would ring hollow if the resulting legislation could not rectify the harms resulting from action that discriminated by effect as well as by design. [Footnote 17] Page 469 U. S. 298At the same time, the position urged by respondents -- that we interpret § 504 to reach all action disparately affecting the handicapped -- is also troubling. Because the handicapped typically are not similarly situated to the nonhandicapped, respondents' position would in essence require each recipient of federal funds first to evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then to consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped. The formalization and policing of this process could lead to a wholly unwieldy administrative and adjudicative burden. See Note, Employment Discrimination Against the Handicapped and Section 504 of the Rehabilitation Act: An Essay on Legal Evasiveness, 97 Harv.L.Rev. 997, 1008 (1984) (describing problems with pure disparate-impact model in context of employment discrimination against the handicapped). Had Congress intended § 504 to be a National Environmental Policy Act [Footnote 18] for the handicapped, requiring the preparation of "Handicapped Impact Page 469 U. S. 299 Statements" before any action was taken by a grantee that affected the handicapped, we would expect some indication of that purpose in the statute or its legislative history. Yet there is nothing to suggest that such was Congress' purpose. Thus, just as there is reason to question whether Congress intended § 504 to reach only intentional discrimination, there is similarly reason to question whether Congress intended § 504 to embrace all claims of disparate impact discrimination.Any interpretation of § 504 must therefore be responsive to two powerful but countervailing considerations -- the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds. Given the legitimacy of both of these goals and the tension between them, we decline the parties' invitation to decide today that one of these goals so overshadows the other as to eclipse it. While we reject the boundless notion that all disparate impact showings constitute prima facie cases under § 504, we assume without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped. On that assumption, we must then determine whether the disparate effect of which respondents complain is the sort of disparate impact that federal law might recognize.IIITo determine which disparate impacts § 504 might make actionable, the proper starting point is Southeastern Community College v. Davis, 442 U. S. 397 (1979), our major previous attempt to define the scope of § 504. [Footnote 19] Davis involved a plaintiff with a major hearing disability who sought admission Page 469 U. S. 300 to a college to be trained as a registered nurse, but who would not be capable of safely performing as a registered nurse even with full-time personal supervision. We stated that, under some circumstances, a"refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped [is] an important responsibility of HEW."Id. at 442 U. S. 413. We held that the college was not required to admit Davis because it appeared unlikely that she could benefit from any modifications that the relevant HEW regulations required, id. at 442 U. S. 409, and because the further modifications Davis sought -- full-time, personal supervision whenever she attended patients and elimination of all clinical courses -- would have compromised the essential nature of the college's nursing program, id. at 442 U. S. 413-414. Such a "fundamental alteration in the nature of a program" was far more than the reasonable modifications the statute or regulations required. Id. at 442 U. S. 410. Davis thus struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of federal grantees in preserving the integrity of their programs: while a grantee need not be required to make "fundamental" or "substantial" modifications to accommodate the handicapped, it may be required to make "reasonable" ones. Compare ibid. with id. at 442 U. S. 412-413. [Footnote 20] Page 469 U. S. 301The balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made. [Footnote 21] In this Page 469 U. S. 302 case, respondents argue that the 14-day rule, or any annual durational limitation, denies meaningful access to Medicaid services in Tennessee. We examine each of these arguments in turn.AThe 14-day limitation will not deny respondents meaningful access to Tennessee Medicaid services or exclude them from those services. The new limitation does not invoke criteria that have a particular exclusionary effect on the handicapped; the reduction, neutral on its face, does not distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having. Moreover, it cannot be argued that "meaningful access" to state Medicaid services will be denied by the 14-day limitation on inpatient coverage; nothing in the record suggests that the handicapped in Tennessee will be unable to benefit meaningfully from the coverage they will receive under the 14-day rule. [Footnote 22] The reduction in inpatient coverage will leave both handicapped and nonhandicapped Medicaid users with identical and effective hospital services fully available for their use, with both classes of users subject to the same durational limitation. The 14-day limitation, therefore, does not exclude the handicapped from or deny them the benefits of the 14 days of care the State has chosen to provide. Cf. Jefferson v. Hackney, 406 U. S. 535 (1972).To the extent respondents further suggest that their greater need for prolonged inpatient care means that, to provide meaningful access to Medicaid services, Tennessee must single out the handicapped for more than 14 days of Page 469 U. S. 303 coverage, the suggestion is simply unsound. At base, such a suggestion must rest on the notion that the benefit provided through state Medicaid programs is the amorphous objective of "adequate health care." But Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services, such as 14 days of inpatient coverage. That package of services has the general aim of assuring that individuals will receive necessary medical care, but the benefit provided remains the individual services offered -- not "adequate health care."The federal Medicaid Act makes this point clear. The Act gives the States substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage, as long as care and services are provided in "the best interests of the recipients." 42 U.S.C. § 1396a(a)(19). The District Court found that the 14-day limitation would fully serve 95% of even handicapped individuals eligible for Tennessee Medicaid, and both lower courts concluded that Tennessee's proposed Medicaid plan would meet the "best interests" standard. That unchallenged conclusion [Footnote 23] indicates that Tennessee is free, as a matter of the Medicaid Act, to choose to define the benefit it will be providing as 14 days of inpatient coverage.Section 504 does not require the State to alter this definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs. To conclude otherwise would be to find that the Rehabilitation Act requires States to view certain illnesses, i.e., those Page 469 U. S. 304 particularly affecting the handicapped, as more important than others and more worthy of cure through government subsidization. Nothing in the legislative history of the Act supports such a conclusion. Cf. Doe v. Colautti, 592 F.2d 704 (CA3 1979) (State may limit covered-private-inpatient-pyschiatric care to 60 days even though State sets no limit on duration of coverage for physical illnesses). Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance. Southeastern Community College v. Davis, 442 U. S. 397 (1979). The Act does not, however, guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed. Ibid. Regulations promulgated by the Department of Health and Human Services (HHS) pursuant to the Act further support this conclusion. [Footnote 24] These regulations state that recipients of federal funds who provide health services cannot "provide a qualified handicapped person with benefits or services that are not as effective (as defined in § 84.4(b)) as the benefits or services provided to others." 45 CFR § 84.52(a)(3)(1984). The regulations also prohibit a recipient of federal funding from adopting"criteria or methods of administration that Page 469 U. S. 305 have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to the handicapped."45 CFR § 84.4(b)(4)(ii)(1984). [Footnote 25]While these regulations, read in isolation, could be taken to suggest that a state Medicaid program must make the handicapped as healthy as the nonhandicapped, other regulations reveal that HHS does not contemplate imposing such a requirement. Title 45 CFR § 84.4(b)(2)(1984), referred to in the regulations quoted above, makes clear that"[f]or purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement. . . ."This regulation, while indicating that adjustments to existing programs are contemplated, [Footnote 26] also makes clear that Page 469 U. S. 306 Tennessee is not required to assure that its handicapped Medicaid users will be as healthy as its nonhandicapped users. Thus, to the extent respondents are seeking a distinct durational limitation for the handicapped, Tennessee is entitled to respond by asserting that the relevant benefit is 14 days of coverage. Because the handicapped have meaningful and equal access to that benefit, Tennessee is not obligated to reinstate its 20-day rule or to provide the handicapped with more than 14 days of inpatient coverage.BWe turn next to respondents' alternative contention, a contention directed not at the 14-day rule itself but rather at Tennessee's Medicaid plan as a whole. Respondents argue that the inclusion of any annual durational limitation on inpatient coverage in a state Medicaid plan violates § 504. The thrust of this challenge is that all annual durational limitations discriminate against the handicapped because (1) the effect of such limitations falls most heavily on the handicapped and because (2) this harm could be avoided by the choice of other Medicaid plans that would meet the State's budgetary constraints without disproportionately disadvantaging the handicapped. Viewed in this light, Tennessee's current plan is said to inflict a gratuitous harm on the handicapped that denies them meaningful access to Medicaid services.Whatever the merits of this conception of meaningful access, it is clear that § 504 does not require the changes respondents seek. In enacting the Rehabilitation Act and in subsequent amendments, [Footnote 27] Congress did focus on several Page 469 U. S. 307 substantive areas -- employment, [Footnote 28] education, [Footnote 29] and the elimination of physical barriers to access [Footnote 30] -- in which it considered the societal and personal costs of refusals to provide meaningful access to the handicapped to be particularly high. [Footnote 31] But nothing in the pre- or post-1973 legislative discussion of § 504 suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services covered by state Medicaid, see Beal v. Doe, 432 U. S. 438, 432 U. S. 444 (1977). And, more generally, we have already stated, supra, at 469 U. S. 298-299, that § 504 does not impose a general NEPA-1ike requirement on federal grantees. [Footnote 32] Page 469 U. S. 308The costs of such a requirement would be far from minimal, and thus Tennessee's refusal to pursue this course does not, as respondents suggest, inflict a "gratuitous" harm on the handicapped. On the contrary, to require that the sort of broad-based distributive decision at issue in this case always be made in the way most favorable, or least disadvantageous, to the handicapped, even when the same benefit is meaningfully and equally offered to them, would be to impose a virtually unworkable requirement on state Medicaid administrators. Before taking any across-the-board action affecting Medicaid recipients, an analysis of the effect of the proposed change on the handicapped would have to be prepared. Presumably, that analysis would have to be further broken down by class of handicap -- the change at issue here, for example, might be significantly less harmful to the blind, who use inpatient services only minimally, than to other subclasses of handicapped Medicaid recipients; the State would then have to balance the harms and benefits to various groups to determine, on balance, the extent to which the action disparately impacts the handicapped. In addition, respondents offer no reason that similar treatment would not have to be accorded other groups protected by statute or regulation from disparate impact discrimination.It should be obvious that administrative costs of implementing such a regime would be well beyond the accommodations that are required under Davis. As a result, Tennessee need not redefine its Medicaid program to eliminate Page 469 U. S. 309 durational limitations on inpatient coverage, even if in doing so the State could achieve its immediate fiscal objectives in a way less harmful to the handicapped.IVThe 14-day rule challenged in this case is neutral on its face, is not alleged to rest on a discriminatory motive, and does not deny the handicapped access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide. The State has made the same benefit -- 14 days of coverage equally accessible to both handicapped and nonhandicapped persons, and the State is not required to assure the handicapped "adequate health care" by providing them with more coverage than the nonhandicapped. In addition, the State is not obligated to modify its Medicaid program by abandoning reliance on annual durational limitations on inpatient coverage. Assuming, then, that § 504 or its implementing regulations reach some claims of disparate impact discrimination, the effect of Tennessee's reduction in annual inpatient coverage is not among them. For that reason, the Court of Appeals erred in holding that respondents had established a prima facie violation of § 504. The judgment below is accordingly reversed.It is so ordered

U.S. Supreme CourtAlexander v. Choate, 469 U.S. 287 (1985)Alexander v. ChoateNo. 83-727Argued October 1, 1984Decided January 9, 1985469 U.S. 287SyllabusFaced with Medicaid costs beyond its budget, Tennessee proposed to reduce from 20 to 14 the number of annual inpatient hospital days that state Medicaid would pay hospitals on behalf of a Medicaid recipient. Before the reduction took effect, respondent Medicaid recipients brought a class action in Federal District Court for declaratory and injunctive relief. Respondents alleged that the proposed 14-day limitation would have a disproportionate effect on the handicapped, and hence was discriminatory in violation of § 504 of the Rehabilitation Act of 1973 -- which provides that no otherwise qualified handicapped person shall, solely by reason of his handicap, be subjected to discrimination under any program receiving federal financial assistance -- and its implementing regulations, and moreover that any annual limitation on inpatient coverage would disadvantage the handicapped disproportionately in violation of § 504. The District Court dismissed the complaint on the ground that the 14-day limitation was not the type of discrimination that § 504 was intended to proscribe. The Court of Appeals held that respondent had established a prima facie case of a § 504 violation, because both the 14-day and any annual limitation on inpatient coverage would disproportionately affect the handicapped.Held: Assuming that § 504 or its implementing regulations reach some claims of disparate impact discrimination, the effect of Tennessee's reduction in annual inpatient hospital coverage is not among them. Pp. 469 U. S. 292-309.(a) The 14-day limitation is neutral on its face, is not alleged to rest on a discriminatory motive, and does not deny the handicapped meaningful access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide. The State has made the same benefit equally accessible to both handicapped and nonhandicapped persons, and is not required to assure the handicapped "adequate health care" by providing them with more coverage than the nonhandicapped. Nothing in the Rehabilitation Act's legislative history supports the conclusion that the Act requires the States to view certain illnesses, i.e., those particularly affecting the handicapped, as more important than others and more worthy of cure through government subsidization. Section 504 does not require the State to alter its definition of the benefit Page 469 U. S. 288 it will be providing as 14 days of inpatient coverage simply to meet the reality that the handicapped have greater medical needs. While § 504 seeks to assure even-handed treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal financial assistance, the Act does not guarantee the handicapped equal results from the provision of state Medicaid. Pp. 469 U. S. 302-306.(b) In addition, the State is not obligated to modify its Medicaid program by abandoning reliance on annual durational limitations on inpatient coverage. Section 504 does not require the State to redefine its Medicaid program, and nothing in its legislative history suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and durational limitations on services covered by Medicaid. Moreover, § 504 does not require that federal grantees make a broad-based distributive decision always in the way most favorable, or least disadvantageous, to the handicapped. To do so would impose a virtually unworkable requirement on state Medicaid administrators. Pp. 469 U. S. 306-309.715 F.2d 1036, reversed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 469 U. S. 289

1970_153

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.This appeal presents important constitutional questions as to federal aid for church-related colleges and universities under Title I of the Higher Education Facilities Act of 1963, 77 Stat. 364, as amended, 20 U.S.C. §§ 711-721 (1964 ed. and Supp. V), which provides construction grants for buildings and facilities used Page 403 U. S. 675 exclusively for secular educational purposes. We must determine first whether the Act authorizes aid to such church-related institutions, and, if so, whether the Act violates either the Establishment or Free Exercise Clauses of the First Amendment.IThe Higher Education Facilities Act was passed in 1963 in response to a strong nationwide demand for the expansion of college and university facilities to meet the sharply rising number of young people demanding higher education. The Act authorizes federal grants and loan to "institutions of higher education" for the construction of a wide variety of "academic facilities." But § 751(a)(2) (1964 ed., Supp. V) expressly excludes"any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . any facility which . . . is used or to be used primarily in connection with any part of the program of a school or department of divinity. . . ."The Act is administered by the United States Commissioner of Education. He advises colleges and universities applying for funds that under the Act no part of the project may be used for sectarian instruction, religious worship, or the programs of a divinity school. The Commissioner requires applicants to provide assurances that these restrictions will be respected. The United States retains a 20-year interest in any facility constructed with Title I funds. If, during this period, the recipient violates the statutory conditions, the United States is entitled to recover an amount equal to the proportion of its present value that the federal grant bore to the original cost of the facility. During the 20-year period, the statutory restrictions are enforced by the Office of Education primarily by way of on-site inspections. Page 403 U. S. 676Appellants are citizens and taxpayers of the United States and residents of Connecticut. They brought this suit for injunctive relief against the officials who administer the Act. Four church-related colleges and universities in Connecticut receiving federal construction grants under Title I were also named as defendants. Federal funds were used for five projects at these four institutions: (1) a library building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.A three-judge federal court was convened under 28 U.S.C. § 2282 and § 2284. Appellants attempted to show that the four recipient institutions were "sectarian" by introducing evidence of their relations with religious authorities, the content of their curricula, and other indicia of their religious character. The sponsorship of these institutions by religious organizations is not disputed. Appellee colleges introduced testimony that they had fully complied with the statutory conditions and that their religious affiliation in no way interfered with the performance of their secular educational functions. The District Court ruled that Title I authorized grants to church-related colleges and universities. It also sustained the constitutionality of the Act, finding that it had neither the purpose nor the effect of promoting religion. 312 F. Supp. 1191. We noted probable jurisdiction. 399 U.S. 904 (1970).IIWe are satisfied that Congress intended the Act to include all colleges and universities regardless of any affiliation with or sponsorship by a religious body. Congress defined "institutions of higher education," which are eligible to receive aid under the Act, in broad and Page 403 U. S. 677 inclusive terms. Certain institutions, for example, institutions that are neither public nor nonprofit, are expressly excluded, and the Act expressly prohibits use of the facilities for religious purposes. But the Act makes no reference to religious affiliation or nonaffiliation. Under these circumstances, "institutions of higher education" must be taken to include church-related colleges and universities.This interpretation is fully supported by the legislative history. Although there was extensive debate on the wisdom and constitutionality of aid to institutions affiliated with religious organizations, Congress clearly included them in the program. The sponsors of the Act so stated, 109 Cong.Rec.19218 (1963) (remarks of Sen. Morse); id. at 14954 (remarks of Rep. Powell); id. at 14963 (remarks of Rep. Quie), and amendments aimed at the exclusion of church-related institutions were defeated. Id. at 14990-14992, 19496.IIINumerous cases considered by the Court have noted the internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause. Walz v. Tax Comm'n, 397 U. S. 664 (1970), is the most recent decision seeking to define the boundaries of the neutral area between these two provisions within which the legislature may legitimately act. There, as in other decisions, the Court treated the three main concerns against which the Establishment Clause sought to protect: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Id. at 668.Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper that can be used to measure the precise degree to which these three factors are present or absent. Instead, our Page 403 U. S. 678 analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action challenged as violative of the Establishment Clause.There are always risks in treating criteria discussed by the Court from time to time as "tests" in any limiting sense of that term. Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired. And, as we have noted in Lemon v. Kurtzman and Earley v. DiCenso, ante at 403 U. S. 612, candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.Against this background we consider four questions: first, does the Act reflect a secular legislative purpose? Second, is the primary effect of the Act to advance or inhibit religion? Third, does the administration of the Act foster an excessive government entanglement with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion?(a)The stated legislative purpose appears in the preamble, where Congress found and declared that"the security and welfare of the United States require that this and future generations of American youth be assured ample opportunity for the fullest development of their intellectual capacities, and that this opportunity will be jeopardized unless the Nation's colleges and universities are encouraged and assisted in their efforts to accommodate rapidly growing numbers of youth who aspire to a higher education."20 U.S.C. § 701. Page 403 U. S. 679 This expresses a legitimate secular objective entirely appropriate for governmental action.The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U. S. 291 (1899). There, a federal construction grant to a hospital operated by a religious order was upheld. Here, the Act is challenged on the ground that its primary effect is to aid the religious purposes of church-related colleges and universities. Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform their various functions. But bus transportation, textbooks, and tax exemptions all gave aid in the sense that religious bodies would otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental assistance have been upheld. Everson v. Board of Education, 330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz v. Tax Comm'n., supra. See also Bradfield v. Roberts, supra. The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.A possibility always exists, of course, that the legitimate objectives of any law or legislative program may be subverted by conscious design or lax enforcement. There is nothing new in this argument. But judicial concern about these possibilities cannot, standing alone, warrant striking down a statute as unconstitutional.The Act itself was carefully drafted to ensure that the federally subsidized facilities would be devoted to the secular, and not the religious, function of the recipient institutions. It authorizes grants and loans only for academic facilities that will be used for defined secular purposes, and expressly prohibits their use for religious Page 403 U. S. 680 instruction, training, or worship. These restrictions have been enforced in the Act's actual administration, and the record shows that some church-related institutions have been required to disgorge benefits for failure to obey them.Finally, this record fully supports the findings of the District Court that none of the four church-related institutions in this case has violated the statutory restrictions. The institutions presented evidence that there had been no religious services or worship in the federally financed facilities, that there are no religious symbols or plaques in or on them, and that they had been used solely for nonreligious purposes. On this record, therefore, these buildings are indistinguishable from a typical state university facility. Appellants presented no evidence to the contrary.Appellants instead rely on the argument that government may not subsidize any activities of an institution of higher learning that, in some of its programs, teaches religious doctrines. This argument rests on Everson, where the majority stated that the Establishment Clause barred any "tax . . . levied to support any religious . . . institutions . . . whatever form they may adopt to teach or practice religion." 330 U.S. at 330 U. S. 16. In Allen, however, it was recognized that the Court had fashioned criteria under which an analysis of a statute's purpose and effect was determinative as to whether religion was being advanced by government action. 392 U.S. at 392 U. S. 243; Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 222 (1963).Under this concept, appellants' position depends on the validity of the proposition that religion so permeates the secular education provided by church-related colleges and universities that their religious and secular educational functions are, in fact, inseparable. The argument that government grants would thus inevitably advance Page 403 U. S. 681 religion did not escape the notice of Congress. It was carefully and thoughtfully debated, 109 Cong.Rec.19474-19475, but was found unpersuasive. It was also considered by this Court in Allen. There, the Court refused to assume that religiosity in parochial elementary and secondary schools necessarily permeates the secular education that they provide.This record, similarly, provides no basis for any such assumption here. Two of the five federally financed buildings involved in this case are libraries. The District Court found that no classes had been conducted in either of these facilities, and that no restrictions were imposed by the institutions on the books that they acquired. There is no evidence to the contrary. The third building was a language laboratory at Albertus Magnus College. The evidence showed that this facility was used solely to assist students with their pronunciation in modern foreign languages -- a use which would seem peculiarly unrelated and unadaptable to religious indoctrination. Federal grants were also used to build a science building at Fairfield University and a music, drama, and arts building at Annhurst College.There is no evidence that religion seeps into the use of any of these facilities. Indeed, the parties stipulated in the District Court that courses at these institutions are taught according to the academic requirements intrinsic to the subject matter and the individual teacher's concept of professional standards. Although appellants introduced several institutional documents that stated certain religious restrictions on what could be taught, other evidence showed that these restrictions were not, in fact, enforced, and that the schools were characterized by an atmosphere of academic freedom, rather than religious indoctrination. All four institutions, for example, subscribe to the 1940 Statement of Principles on Academic Page 403 U. S. 682 Freedom and Tenure endorsed by the American Association of University Professors and the Association of American Colleges.Rather than focus on the four defendant colleges and universities involved in this case, however, appellants seek to shift our attention to a "composite profile" that they have constructed of the "typical sectarian" institution of higher education. We are told that such a "composite" institution imposes religious restrictions on admissions, requires attendance at religious activities, compels obedience to the doctrines and dogmas of the faith, requires instruction in theology and doctrine, and does everything it can to propagate a particular religion. Perhaps some church-related schools fit the pattern that appellants describe. Indeed, some colleges have been declared ineligible for aid by the authorities that administer the Act. But appellants do not contend that these four institutions fall within this category. Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact, possess these characteristics. We cannot, however, strike down an Act of Congress on the basis of a hypothetical "profile."(b) Although we reject appellants' broad constitutional arguments, we do perceive an aspect in which the statute's enforcement provisions are inadequate to ensure that the impact of the federal aid will not advance religion. If a recipient institution violates any of the statutory restrictions on the use of a federally financed facility, § 754(b)(2) permits the Government to recover an amount equal to the proportion of the facility's present value that the federal grant bore to its original cost. Page 403 U. S. 683This remedy, however, is available to the Government only if the statutory conditions are violated "within twenty years after completion of construction." This 20-year period is termed by the statute as "the period of Federal interest," and reflects Congress' finding that, after 20 years, "the public benefit accruing to the United States" from the use of the federally financed facility "will equal or exceed in value" the amount of the federal grant. 20 U.S.C. § 754(a).Under § 754(b)(2), therefore, a recipient institution's obligation not to use the facility for sectarian instruction or religious worship would appear to expire at the end of 20 years. We note, for example, that, under § 718(b)(7)(C) (1964 ed., Supp. V), an institution applying for a federal grant is only required to provide assurances that the facility will not be used for sectarian instruction or religious worship "during at least the period of the Federal interest therein (as defined in section 754 of this title)."Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period. It cannot be assumed that a substantial structure has no value after that period, and, hence, the unrestricted use of a valuable property is, in effect, a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will, in part, have the effect of advancing religion.To this extent, the Act therefore trespasses on the Religion Clauses. The restrictive obligations of a recipient institution under § 751(a)(2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. This circumstance does not require us to Page 403 U. S. 684 invalidate the entire Act, however. "The cardinal principle of statutory construction is to save, and not to destroy." NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 30 (1937). In Champlin Rfg. Co. v. Commission, 286 U. S. 210, 286 U. S. 234 (1932), the Court noted"The unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."Nor does the absence of an express severability provision in the Act dictate the demise of the entire statute. E.g., United States v. Jackson, 390 U. S. 570, 390 U. S. 585 n. 27 (1968).We have found nothing in the statute or its objectives intimating that Congress considered the 20-year provision essential to the statutory program as a whole. In view of the broad and important goals that Congress intended this legislation to serve, there is no basis for assuming that the Act would have failed of passage without this provision; nor will its excision impair either the operation or administration of the Act in any significant respect. [Footnote 1]IVWe next turn to the question of whether excessive entanglements characterize the relationship between government and church under the Act. Walz v. Tax Comm'n, supra, at 397 U. S. 674-676. Our decision today in Page 403 U. S. 685 Lemon v. Kurtzman and Robinson v. DiCenso has discussed and applied this independent measure of constitutionality under the Religion Clauses. There, we concluded that excessive entanglements between government and religion were fostered by Pennsylvania and Rhode Island statutory programs under which state aid was provided to parochial elementary and secondary schools. Here, however, three factors substantially diminish the extent and the potential danger of the entanglement.In DiCenso, the District Court found that the parochial schools in Rhode Island were "an integral part of the religious mission of the Catholic Church." There, the record fully supported the conclusion that the inculcation of religious values was a substantial, if not the dominant, purpose of the institutions. The Pennsylvania case was decided on the pleadings, and hence we accepted as true the allegations that the parochial schools in that State shared the same characteristics.Appellants' complaint here contains similar allegations. But they were denied by the answers, and there was extensive evidence introduced on the subject. Although the District Court made no findings with respect to the religious character of the four institutions of higher learning, we are not required to accept the allegations as true under these circumstances, particularly where, as here, appellants themselves do not contend that these four institutions are "sectarian."There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. [Footnote 2] The "affirmative if not dominant policy" of the instruction in pre-college church schools is "to assure future Page 403 U. S. 686 adherents to a particular faith by having control of their total education at an early age." Walz v. Tax Comm'n, supra, at 397 U. S. 671. [Footnote 3] There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination. [Footnote 4] Common observation would seem to support that view, and Congress may well have entertained it. The skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom, [Footnote 5] and seek to evoke free and critical responses from their students.The record here would not support a conclusion that any of these four institutions departed from this general pattern. All four schools are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four institutions requires its students to attend religious services. Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher's concept of professional standards. The parties also stipulated that the courses covered a range of human religious Page 403 U. S. 687 experiences, and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well established set of principles of academic freedom, and nothing in this record shows that these principles are not, in fact, followed. In short, the evidence shows institutions with admittedly religious functions, but whose predominant higher education mission is to provide their students with a secular education.Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that government aid will, in fact, serve to support religious activities. Correspondingly, the necessity for intensive government surveillance is diminished, and the resulting entanglements between government and religion lessened. Such inspection as may be necessary to ascertain that the facilities are devoted to secular education is minimal, and indeed hardly more than the inspections that States impose over all private schools within the reach of compulsory education laws.The entanglement between church and state is also lessened here by the nonideological character of the aid that the Government provides. Our cases from Everson to Allen have permitted church-related schools to receive government aid in the form of secular, neutral, or nonideological services, facilities, or materials that are supplied to all students regardless of the affiliation of the school that they attend. In Lemon and DiCenso, however, the state programs subsidized teachers, either directly or indirectly. Since teachers are not necessarily Page 403 U. S. 688 religiously neutral, greater governmental surveillance would be required to guarantee that state salary aid would not, in fact, subsidize religious instruction. There, we found the resulting entanglement excessive. Here, on the other hand, the Government provides facilities that are themselves religiously neutral. The risks of Government aid to religion, and the corresponding need for surveillance, are therefore reduced.Finally, government entanglements with religion are reduced by the circumstance that, unlike the direct and continuing payments under the Pennsylvania program, and all the incidents of regulation and surveillance, the Government aid here is a one-time, single-purpose construction grant. There are no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures on secular, as distinguished from religious, activities. Inspection as to use is a minimal contact.No one of these three factors, standing alone, is necessarily controlling; cumulatively all of them shape a narrow and limited relationship with government which involves fewer and less significant contacts than the two state schemes before us in Lemon and DiCenso. The relationship therefore has less potential for realizing the substantive evils against which the Religion Clauses were intended to protect.We think that, cumulatively, these three factors also substantially lessen the potential for divisive religious fragmentation in the political arena. This conclusion is admittedly difficult to document, but neither have appellants pointed to any continuing religious aggravation on this matter in the political processes. Possibly this can be explained by the character and diversity of the recipient colleges and universities and the absence of any intimate continuing relationship or dependency between government and religiously affiliated institutions. The Page 403 U. S. 689 potential for divisiveness inherent in the essentially local problems of primary and secondary schools is significantly less with respect to a college or university, whose student constituency is not local, but diverse and widely dispersed.VFinally, we must consider whether the implementation of the Act inhibits the free exercise of religion in violation of the First Amendment. Appellants claim that the Free Exercise Clause is violated because they are compelled to pay taxes, the proceeds of which in part finance grants under the Act. Appellants, however, are unable to identify any coercion directed at the practice or exercise of their religious beliefs. Board of Education v. Allen, supra, at 392 U. S. 246-249. Their share of the cost of the grants under the Act is not fundamentally distinguishable from the impact of the tax exemption sustained in Walz or the provision of textbooks upheld in Allen.We conclude that the Act does not violate the Religion Clauses of the First Amendment except that part of § 754(b)(2) providing a 20-year limitation on the religious use restrictions contained in § 751(a)(2). We remand to the District Court with directions to enter a judgment consistent with this opinion.Vacated and remanded

U.S. Supreme CourtTilton v. Richardson, 403 U.S. 672 (1971)Tilton v. RichardsonNo. 153Argued March 2-3, 1971Decided June 28, 1971403 U.S. 672SyllabusThe Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities, excluding"any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . primarily in connection with any part of the program of a school or department of divinity."The United States retains a 20-year interest in any facility constructed with funds under the Act, and if, during this period, the recipient violates the statutory conditions, the Government is entitled to recovery of funds. Four church-related colleges and universities in Connecticut received federal construction grants for five facilities. Appellants attempted to show, in a three-judge court, that the recipient institutions were "sectarian" by introducing evidence of their relations with religious authorities, the curricula content, and other indicia of religious character. Appellee colleges introduced testimony that they had fully complied with the statutory conditions, and that their religious affiliations did not interfere with their secular educational functions. The court held that the Act authorized grants to church-related schools, and sustained its constitutionality, finding that the Act had neither the purpose nor the effect of promoting religion.Held: The Act is constitutional except for that portion providing for a 20-year limitation on the religious use of the facilities constructed with federal funds. Pp. 403 U. S. 676-689, 403 U. S. 661-671, 403 U. S. 692.312 F. Supp. 1191, vacated and remanded.THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that:1. The Act includes colleges and universities with religious affiliations. Pp. 403 U. S. 676-677.2. Congress' objective of providing more opportunity for college education is a legitimate secular goal entirely appropriate for governmental action. Pp. 403 U. S. 678-679. Page 403 U. S. 6733. The record fully supports the District Court's findings that the colleges involved have not violated the statutory restrictions; it provides no basis for assuming that religiosity necessarily permeates the secular education of the colleges; and it yields no evidence that religion seeps into the use of any of the five facilities. Pp. 403 U. S. 680-682.4. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. Pp. 403 U. S. 682-684.5. This case is distinguished from Lemon v. Kurtzman, ante, p. 403 U. S. 602; (a) there is less danger here than in church-related primary and secondary schools dealing with impressionable children that religion will permeate the area of secular education, since religious indoctrination is not a substantial purpose or activity of these church-related colleges, (b) the facilities provided here are themselves religiously neutral, with correspondingly less need for government surveillance, and (c) the government aid here is a one-time, single-purpose construction grant, with only minimal need for inspection. Cumulatively, these factors lessen substantially the potential for divisive religious fragmentation in the political arena. Pp. 403 U. S. 684-689.6. The implementation of the Act does not inhibit the free exercise of religion in violation of the First Amendment. P. 403 U. S. 689.MR. JUSTICE WHITE concurred in the judgment in this case. Pp. 403 U. S. 661-671.MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE MARSHALL, agreed only with that part of the plurality opinion relating to the limitation of federal interest in the facilities to 20 years, concluding that a reversion of a facility at the end of that period to a parochial school would be unconstitutional as a gift of taxpayers' funds. P. 403 U. S. 692.BURGER, C.J., announced the Court's judgment and delivered an opinion in which HARLAN, STEWART, and BLACKMUN, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, ante, p. 403 U. S. 661. DOUGLAS, J., filed an opinion dissenting in part, in which BLACK and MARSHALL, JJ., joined, post, p. 403 U. S. 689. BRENNAN, J. filed a dissenting opinion, ante, p. 403 U. S. 642. Page 403 U. S. 674

1995_94-12

Syllabusfluous, for it is difficult to see why a tribe would suffer through § 2710(d)(7)'s intricate enforcement scheme if Ex parte Young's more complete and more immediate relief were available. The Court is not free to rewrite the statutory scheme in order to approximate what it thinks Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. Pp. 73-76.11 F.3d 1016, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 76. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 100.Bruce S. Rogow argued the cause for petitioner. With him on the briefs were Beverly A. Pohl, Jerry C. Straus, Michael L. Roy, Judith A. Shapiro, Eugene Gressman, and John J. Gibbons.Solicitor General Days argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein, EdwardJonathan A. Glogau, Assistant Attorney General of Florida, argued the cause for respondents. With him on the brief was Robert A. Butterworth, Attorney General. **Briefs of amici curiae urging reversal were filed for the Miccosukee Tribe of Indians of Florida by Sonia Escobio O'Donnell; for the National Indian Gaming Association et al. by Jerome L. Levine, Frank R. Lawrence, and Kurt V. BlueDog; for the Poarch Band of Creek Indians et al. by William R. Perry, Donald J. Simon, and Gary Pitchlynn; for the San Manuel Band of Mission Indians et al. by Howard L. Dickstein, Jerome L. Levine, and Frank R. Lawrence; for the Spokane Tribe of Indians et al. by Michael J. Wahoske; and for the Tohono O'Odham Nation et al. by EricBriefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Manuel M. Medeiros, Deputy Attorney General, and Thomas F. Gede, Special Assistant Attorney General, Christine O. Gregoire, Attorney General of Washington, and Jonathan Tate McCoy, Assistant Attorney General, joined by the Attorneys General for their respective jurisdictions as47CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 102 Stat. 2475, 25 U. S. C. § 2710(d)(1)(C). The Act, passed by Congress under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, § 2710(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty, § 2710(d)(7). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore § 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued. We further hold that the doctrine of Ex parte Young, 209 U. S. 123 (1908), may not be used to enforce § 2710(d)(3) against a state official.follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Margery S. Bronster of Hawaii, Alan Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Barnett of South Dakota, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; and for the National Governors' Association et al. by Richard Ruda and Richard G. Taranto.Richard Dauphinais, Arlinda F. Locklear, Francis R. Skenandore, Curtis G. Berkey, and Donald Juneau filed a brief for the StockbridgeMunsee Indian Community et al. as amici curiae.48ICongress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U. S. C. § 2702. The Act divides gaming on Indian lands into three classes-I, II, and III-and provides a different regulatory scheme for each class. Class III gaming-the type with which we are here concerned-is defined as "all forms of gaming that are not class I gaming or class II gaming," § 2703(8), and includes such things as slot machines, casino games, banking card games, dog racing, and lotteries.1 It is the most heavily regulated of the three classes. The Act provides that class III gaming is lawful only where it is: (1) authorized by an ordinance or resolution that (a) is adopted by the governing body of the Indian tribe, (b) satisfies certain statutorily prescribed requirements, and (c) is approved by the National Indian Gaming Commission; (2) located in a State that permits such gaming for any purpose by any person, organization, or entity; and (3) "conducted in conformance with a Tribal-State compact entered into by the1 Class I gaming "means social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies or celebrations," 25 U. S. C. § 2703(6), and is left by the Act to "the exclusive jurisdiction of the Indian tribes," § 2710(a)(1).Class II gaming is more extensively defined to include bingo, games similar to bingo, nonbanking card games not illegal under the laws of the State, and card games actually operated in particular States prior to the passage of the Act. See § 2703(7). Banking card games, electronic games of chance, and slot machines are expressly excluded from the scope of class II gaming. § 2703(B). The Act allows class II gaming where the State "permits such gaming for any purpose by any person, organization or entity," and the "governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman" of the National Indian Gaming Commission. § 2710(b)(1). Regulation of class II gaming contemplates a federal role, but places primary emphasis on tribal selfregulation. See §§ 2710(c)(3)-(6).49Indian tribe and the State under paragraph (3) that is in effect." § 2710(d)(1).The "paragraph (3)" to which the last prerequisite of § 2710(d)(1) refers is § 2710(d)(3), which describes the permissible scope of a Tribal-State compact, see § 2710(d)(3)(C), and provides that the compact is effective "only when notice of approval by the Secretary [of the Interior] of such compact has been published by the Secretary in the Federal Register," § 2710(d)(3)(B). More significant for our purposes, however, is that § 2710(d)(3) describes the process by which a State and an Indian tribe begin negotiations toward a Tribal-State compact:"(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact."The State's obligation to "negotiate with the Indian tribe in good faith" is made judicially enforceable by §§ 2710(d) (7)(A)(i) and (B)(i):"(A) The United States district courts shall have jurisdiction over-"(i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith ...."(B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A) (i) only after the close of the iSO-day period beginning on the date on which the50Indian tribe requested the State to enter into negotiations under paragraph (3)(A)."Sections 2710(d)(7)(B)(ii)-(vii) describe an elaborate remedial scheme designed to ensure the formation of a Tribal-State compact. A tribe that brings an action under § 2710(d) (7)(A)(i) must show that no Tribal-State compact has been entered and that the State failed to respond in good faith to the tribe's request to negotiate; at that point, the burden then shifts to the State to prove that it did in fact negotiate in good faith. § 2710(d)(7)(B)(ii). If the district court concludes that the State has failed to negotiate in good faith toward the formation of a Tribal-State compact, then it "shall order the State and Indian Tribe to conclude such a compact within a 60-day period." § 2710(d)(7)(B)(iii). If no compact has been concluded 60 days after the court's order, then "the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact." § 2710(d)(7) (B)(iv). The mediator chooses from between the two proposed compacts the one "which best comports with the terms of [the Act] and any other applicable Federal law and with the findings and order of the court," ibid., and submits it to the State and the Indian tribe, § 2710(d)(7)(B)(v). If the State consents to the proposed compact within 60 days of its submission by the mediator, then the proposed compact is "treated as a Tribal-State compact entered into under paragraph (3)." § 2710(d)(7)(B)(vi). If, however, the State does not consent within that 60-day period, then the Act provides that the mediator "shall notify the Secretary [of the Interior]" and that the Secretary "shall prescribe ... procedures ... under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction." § 2710(d)(7)(B)(vii).22 Sections 2710(d)(7)(B)(ii)-(vii) provide in full:"(ii) In any action described in subparagraph (A)(i), upon the introduction of evidence by an Indian tribe that-51In September 1991, the Seminole Tribe of Florida, petitioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U. S. C."(I) a Tribal-State compact has not been entered into under paragraph (3), and"(II) the State did not respond to the request of the Indian tribe to negotiate such a compact or did not respond to such request in good faith, the burden of proof shall be upon the State to prove that the State has negotiated with the Indian tribe in good faith to conclude a Tribal-State compact governing the conduct of gaming activities."(iii) If, in any action described in subparagraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming activities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court-"(I) may take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities, and"(II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith."(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact ... within the 60-day period provided in the order of a court issued under clause (Hi), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court."(v) The mediator appointed by the court under clause (iv) shall submit to the State and the Indian tribe the compact selected by the mediator under clause (iv)."(vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal-State compact entered into under paragraph (3)."(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary and the Secretary shall prescribe, in consultation with the Indian tribe, procedures-[Footnote 2 is continued on p. 52J52§ 2710(d)(7)(A), as well as 28 U. S. C. §§ 1331 and 1362, petitioner alleged that respondents had "refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact," thereby violating the "requirement of good faith negotiation" contained in § 2710(d)(3). Petitioner's Complaint , 24, see App. 18. Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court. The District Court denied respondents' motion, 801 F. Supp. 655 (SD Fla. 1992), and respondents took an interlocutory appeal of that decision. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993) (collateral order doctrine allows immediate appellate review of order denying claim of Eleventh Amendment immunity).The Court of Appeals for the Eleventh Circuit reversed the decision of the District Court, holding that the Eleventh Amendment barred petitioner's suit against respondents.3 11 F.3d 1016 (1994). The court agreed with the District Court that Congress in § 2710(d)(7) intended to abrogate the States' sovereign immunity, and also agreed that the Act had been passed pursuant to Congress' power under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The court disagreed with the District Court, however, that the Indian"(I) which are consistent with the proposed compact selected by the mediator under clause (iv), the provisions of this chapter, and the relevant provisions of the laws of the State, and"(II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction."3 The Eleventh Circuit consolidated petitioner's appeal with an appeal from another suit brought under § 2710(d)(7)(A)(i) by a different Indian tribe. Although the District Court in that case had granted the defendants' motions to dismiss, the legal issues presented by the two appeals were virtually identical. See Poarch Band of Creek Indians v. Alabama, 776 F. Supp. 550 (SD Ala. 1991) (Eleventh Amendment bars suit against State), and 784 F. Supp. 1549 (SD Ala. 1992) (Eleventh Amendment bars suit against Governor).53Commerce Clause grants Congress the power to abrogate a State's Eleventh Amendment immunity from suit, and concluded therefore that it had no jurisdiction over petitioner's suit against Florida. The court further held that Ex parte Young, 209 U. S. 123 (1908), does not permit an Indian tribe to force good-faith negotiations by suing the Governor of a State. Finding that it lacked subject-matter jurisdiction, the Eleventh Circuit remanded to the District Court with directions to dismiss petitioner's suit.4Petitioner sought our review of the Eleventh Circuit's decision,5 and we granted certiorari, 513 U. S. 1125 (1995), in order to consider two questions: (1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State's Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act? We answer the first question in the affirmative, the second in the negative, and we therefore affirm the Eleventh Circuit's dismissal of petitioner's suit.64 Following its conclusion that petitioner's suit should be dismissed, the Court of Appeals went on to consider how § 2710(d)(7) would operate in the wake of its decision. The court decided that those provisions of § 2710(d)(7) that were problematic could be severed from the rest of the section, and read the surviving provisions of § 2710(d)(7) to provide an Indian tribe with immediate recourse to the Secretary of the Interior from the dismissal of a suit against a State. 11 F.3d 1016, 1029 (1994).5 Respondents filed a cross-petition, No. 94-219, challenging only the Eleventh Circuit's modification of § 2710(d)(7), see n. 4, supra. That petition is still pending.6 While the appeal was pending before the Eleventh Circuit, the District Court granted respondents' earlier filed summary judgment motion, finding that Florida had fulfilled its obligation under the Act to negotiate in good faith. The Eleventh Circuit has stayed its review of that decision pending the disposition of this case.54The Eleventh Amendment provides:"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, "we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). That presupposition, first observed over a century ago in Hans v. Louisiana, 134 U. S. 1 (1890), has two parts: first, that each State is a sovereign entity in our federal system; and second, that" '[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,'" id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). See also Puerto Rico Aqueduct and Sewer Authority, supra, at 146 ("The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity"). For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States "was not contemplated by the Constitution when establishing the judicial power of the United States." Hans, supra, at 15.77 E. g., North Carolina v. Temple, 134 U. S. 22, 30 (1890); Fitts v.McGhee, 172 U. S. 516, 524 (1899); Bell v. Mississippi, 177 U. S. 693 (1900); Smith v. Reeves, 178 U. S. 436, 446 (1900); Palmer v. Ohio, 248 U. S. 32, 34 (1918); Duhne v. New Jersey, 251 U. S. 311, 313 (1920); Ex parte New York, 256 U. S. 490, 497 (1921); Missouri v. Fiske, 290 U. S. 18, 26 (1933); Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 51 (1944); Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459, 464 (1945); Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304, n. 13 (1952); Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184, 186 (1964); United55Here, petitioner has sued the State of Florida and it is undisputed that Florida has not consented to the suit. See Blatchford, supra, at 782 (States by entering into the Constitution did not consent to suit by Indian tribes). Petitioner nevertheless contends that its suit is not barred by state sovereign immunity. First, it argues that Congress through the Act abrogated the States' sovereign immunity. Alternatively, petitioner maintains that its suit against the Governor may go forward under Ex parte Young, supra. We consider each of those arguments in turn.IIPetitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity," Green v. Mansour, 474 U. S. 64, 68 (1985); and second, whether Congress has acted "pursuant to a valid exercise of power," ibid.ACongress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement." Blatchford, supra, at 786. This rule arises from a recognition of the important role played by the Eleventh Amend-States v. Mississippi, 380 U. S. 128, 140 (1965); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279, 280 (1973); Edelman v. Jordan, 415 U. S. 651, 662-663 (1974); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976); Cory v. White, 457 U. S. 85 (1982); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-100 (1984); Atascadero State Hospital v. Scanlon, 473 U. S. 234, 237-238 (1985); Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 472-474 (1987) (plurality opinion); Dellmuth v. Muth, 491 U. S. 223, 227-229, and n. 2 (1989); Port Authority TransHudson Corp. v. Feeney, 495 U. S. 299, 304 (1990); Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991); Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993).56ment and the broader principles that it reflects. See Atascadero State Hospital v. Scanlon, 473 U. S. 234, 238-239 (1985); Quern v. Jordan, 440 U. S. 332, 345 (1979). In Atascadero, we held that "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." 473 U. S., at 246; see also Blatchford, supra, at 786, n. 4 ("The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim") (emphases deleted). Rather, as we said in Dellmuth v. Muth, 491 U. S. 223 (1989):"To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: 'Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.''' Id., at 227-228.See also Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 474 (1987) (plurality opinion).Here, we agree with the parties, with the Eleventh Circuit in the decision below, 11 F. 3d, at 1024, and with virtually every other court that has confronted the questionS that Congress has in § 2710(d)(7) provided an "unmistakably clear" statement of its intent to abrogate. Section 2710(d)(7)(A)(i)8See Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422, 1427-1428 (CA1O 1994), cert. pending, No. 94-1029; Spokane Tribe v. Washington, 28 F. 3d 991, 994-995 (CA9 1994); Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273, 280-281 (CA8 1993); Ponca Tribe of Oklahoma v. Oklahoma, 834 F. Supp. 1341, 1345 (WD Okla. 1992); Maxam v. Lower Sioux Indian Community of Minnesota, 829 F. Supp. 277 (D. Minn. 1993); Kickapoo Tribe of Indians v. Kansas, 818 F. Supp. 1423, 1427 (D. Kan. 1993); 801 F. Supp. 655, 658 (SD Fla. 1992) (case below); Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 800 F. Supp. 1484,1488-1489 (WD Mich. 1992); Poarch Band of Creek Indians v. Alabama, 776 F. Supp., at 557-558.57vests jurisdiction in "[t]he United States district courts ... over any cause of action ... arising from the failure of a State to enter into negotiations ... or to conduct such negotiations in good faith." Any conceivable doubt as to the identity of the defendant in an action under § 2710(d)(7)(A)(i) is dispelled when one looks to the various provisions of § 2710(d)(7)(B), which describe the remedial scheme available to a tribe that files suit under § 2710(d)(7)(A)(i). Section 2710(d)(7)(B)(ii)(II) provides that if a suing tribe meets its burden of proof, then the "burden of proof shall be upon the State ... "; § 2710(d)(7)(B)(iii) states that if the court "finds that the State has failed to negotiate in good faith ... , the court shall order the State ... "; § 2710(d)(7)(B)(iv) provides that "the State shall ... submit to a mediator appointed by the court" and subsection (B)(v) of § 2710(d)(7) states that the mediator "shall submit to the State." Sections 2710(d) (7)(B)(vi) and (vii) also refer to the "State" in a context that makes it clear that the State is the defendant to the suit brought by an Indian tribe under § 2710(d)(7)(A)(i). In sum, we think that the numerous references to the "State" in the text of § 2710(d)(7)(B) make it indubitable that Congress intended through the Act to abrogate the States' sovereign immunity from suit.9BHaving concluded that Congress clearly intended to abrogate the States' sovereign immunity through § 2710(d)(7), we9 JUSTICE SOUTER, in his dissenting opinion, argues that in order to avoid a constitutional question, we should interpret the Act to provide only a suit against state officials rather than a suit against the State itself. Post, at 182. But in light of the plain text of § 2710(d)(7)(B), we disagree with the dissent's assertion that the Act can reasonably be read in that way. "We cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question." See United States v. Locke, 471 U. S. 84, 96 (1985), quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933) (Cardozo, J.). We already have found the clear statement rule satisfied, and that finding renders the preference for avoiding a constitutional question inapplicable.58turn now to consider whether the Act was passed "pursuant to a valid exercise of power." Green v. Mansour, 474 U. S., at 68. Before we address that question here, however, we think it necessary first to define the scope of our inquiry.Petitioner suggests that one consideration weighing in favor of finding the power to abrogate here is that the Act authorizes only prospective injunctive relief rather than retroactive monetary relief. But we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e. g., Cory v. White, 457 U. S. 85, 90 (1982) ("It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought"). We think it follows a fortiori from this proposition that the type of relief sought is irrelevant to whether Congress has power to abrogate States' immunity. The Eleventh Amendment does not exist solely in order to "preven[t] federal-court judgments that must be paid out of a State's treasury," Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 48 (1994); it also serves to avoid "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 146 (internal quotation marks omitted).Similarly, petitioner argues that the abrogation power is validly exercised here because the Act grants the States a power that they would not otherwise have, viz., some measure of authority over gaming on Indian lands. It is true enough that the Act extends to the States a power withheld from them by the Constitution. See California v. Cabazon Band of Mission Indians, 480 U. S. 202 (1987). Nevertheless, we do not see how that consideration is relevant to the question whether Congress may abrogate state sovereign immunity. The Eleventh Amendment immunity may not be lifted by Congress unilaterally deciding that it will be re-59placed by grant of some other authority. Cf. Atascadero, 473 U. S., at 246-247 ("[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court").Thus our inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 452-456 (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. Id., at 455. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." See id., at 453 (internal quotation marks omitted). We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages." 491 U. S., at 19-20. Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express60that he "[did] not agree with much of [the plurality's] reasoning." Id., at 57 (opinion concurring in judgment in part and dissenting in part).In arguing that Congress through the Act abrogated the States' sovereign immunity, petitioner does not challenge the Eleventh Circuit's conclusion that the Act was passed pursuant to neither the Fourteenth Amendment nor the Interstate Commerce Clause. Instead, accepting the lower court's conclusion that the Act was passed pursuant to Congress' power under the Indian Commerce Clause, petitioner now asks us to consider whether that Clause grants Congress the power to abrogate the States' sovereign immunity.Petitioner begins with the plurality decision in Union Gas and contends that "[t]here is no principled basis for finding that congressional power under the Indian Commerce Clause is less than that conferred by the Interstate Commerce Clause." Brief for Petitioner 17. Noting that the Union Gas plurality found the power to abrogate from the "plenary" character of the grant of authority over interstate commerce, petitioner emphasizes that the Interstate Commerce Clause leaves the States with some power to regulate, see, e. g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994), whereas the Indian Commerce Clause makes "Indian relations ... the exclusive province of federal law." County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 234 (1985). Contending that the Indian Commerce Clause vests the Federal Government with "the duty of protect[ing]" the tribes from "local ill feeling" and "the people of the States," United States v. Kagama, 118 U. S. 375, 383-384 (1886), petitioner argues that the abrogation power is necessary "to protect the tribes from state action denying federally guaranteed rights." Brief for Petitioner 20.Respondents dispute petitioner's analogy between the Indian Commerce Clause and the Interstate Commerce Clause. They note that we have recognized that "the Interstate Commerce and Indian Commerce Clauses have very differ-61ent applications," Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989), and from that they argue that the two provisions are "wholly dissimilar." Brief for Respondents 21. Respondents contend that the Interstate Commerce Clause grants the power of abrogation only because Congress' authority to regulate interstate commerce would be "incomplete" without that "necessary" power. Id., at 23, citing Union Gas, supra, at 19-20. The Indian Commerce Clause is distinguishable, respondents contend, because it gives Congress complete authority over the Indian tribes. Therefore, the abrogation power is not "necessary" to Congress' exercise of its power under the Indian Commerce Clause.lOBoth parties make their arguments from the plurality decision in Union Gas, and we, too, begin there. We think it clear that Justice Brennan's opinion finds Congress' power to abrogate under the Interstate Commerce Clause from the States' cession of their sovereignty when they gave Congress plenary power to regulate interstate commerce. See Union Gas, 491 U. S., at 17 ("The important point ... is that the provision both expands federal power and contracts state power"). Respondents' focus elsewhere is misplaced. While the plurality decision states that Congress' power under the Interstate Commerce Clause would be incomplete without the power to abrogate, that statement is made solely in order to emphasize the broad scope of Congress' authority over interstate commerce. Id., at 19-20. Moreover, respondents' rationale would mean that where Congress has10 Respondents also contend that the Act mandates state regulation of Indian gaming and therefore violates the Tenth Amendment by allowing federal officials to avoid political accountability for those actions for which they are in fact responsible. See New York v. United States, 505 U. S. 144 (1992). This argument was not considered below by either the Eleventh Circuit or the District Court, and is not fairly within the question presented. Therefore we do not consider it here. See this Court's Rule 14.1; Yee v. Escondido, 503 U. S. 519 (1992).62less authority, and the States have more, Congress' means for exercising that power must be greater. We read the plurality opinion to provide just the opposite. Indeed, it was in those circumstances where Congress exercised complete authority that Justice Brennan thought the power to abrogate most necessary. Id., at 20 ("Since the States may not legislate at all in [the aforementioned] situations, a conclusion that Congress may not create a cause of action for money damages against the States would mean that no one could do so. And in many situations, it is only money damages that will carry out Congress' legitimate objectives under the Commerce Clause").Following the rationale of the Union Gas plurality, our inquiry is limited to determining whether the Indian Commerce Clause, like the Interstate Commerce Clause, is a grant of authority to the Federal Government at the expense of the States. The answer to that question is obvious. If anything, the Indian Commerce Clause accomplishes a greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear enough from the fact that the States still exercise some authority over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes. Under the rationale of Union Gas, if the States' partial cession of authority over a particular area includes cession of the immunity from suit, then their virtually total cession of authority over a different area must also include cession of the immunity from suit. See id., at 42 (SCALIA, J., joined by REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., dissenting) ("[I]f the Article I commerce power enables abrogation of state sovereign immunity, so do all the other Article I powers"); see Ponca Tribe of Oklahoma v. Oklahoma, 37 F.3d 1422, 1428 (CAlO 1994) (Indian Commerce Clause grants power to abrogate), cert. pending, No. 94-1029; Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273,281 (CA8 1993) (same); cf. Chavez v. Arte Publico63Press, 59 F.3d 539, 546-547 (CA5 1995) (After Union Gas, Copyright Clause, U. S. Const., Art. I, § 8, cl. 8, must grant Congress power to abrogate). We agree with petitioner that the plurality opinion in Union Gas allows no principled distinction in favor of the States to be drawn between the Indian Commerce Clause and the Interstate Commerce Clause.Respondents argue, however, that we need not conclude that the Indian Commerce Clause grants the power to abrogate the States' sovereign immunity. Instead, they contend that if we find the rationale of the Union Gas plurality to extend to the Indian Commerce Clause, then "Union Gas should be reconsidered and overruled." Brief for Respondents 25. Generally, the principle of stare decisis, and the interests that it serves, viz., "the evenhanded, predictable, and consistent development of legal principles, ... reliance on judicial decisions, and ... the actual and perceived integrity of the judicial process," Payne v. Tennessee, 501 U. S. 808, 827 (1991), counsel strongly against reconsideration of our precedent. Nevertheless, we always have treated stare decisis as a "principle of policy," Helvering v. Hallock, 309 U. S. 106, 119 (1940), and not as an "inexorable command," Payne, 501 U. S., at 828. "[W]hen governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.''' Id., at 827 (quoting Smith v. Allwright, 321 U. S. 649, 665 (1944)). Our willingness to reconsider our earlier decisions has been "particularly true in constitutional cases, because in such cases 'correction through legislative action is practically impossible.''' Payne, supra, at 828 (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407 (1932) (Brandeis, J., dissenting)).The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices. See Union Gas, 491 U. S., at 5 (Marshall, Blackmun, and STEVENS, JJ.,64joined Justice Brennan). Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, id., at 57 (opinion concurring in judgment and dissenting in part), and four Justices joined together in a dissent that rejected the plurality's rationale, id., at 35-45 (SCALIA, J., dissenting, joined by REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ.). Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision. See, e. g., Chavez v. Arte Publico Press, supra, at 543-545 ("Justice White's concurrence must be taken on its face to disavow" the plurality's theory); 11 F. 3d, at 1027 (Justice White's "vague concurrence renders the continuing validity of Union Gas in doubt").The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans. See Union Gas, supra, at 36 ("If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all") (SCALIA, J., dissenting). It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts' jurisdiction under Article III. The text of the Amendment itself is clear enough on this point: "The Judicial power of the United States shall not be construed to extend to any suit .... " And our decisions since Hans had been equally clear that the Eleventh Amendment reflects "the fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Art. III," Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-98 (1984); see Union Gas, supra, at 38 (" '[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given ... ''') (SCALIA,65J., dissenting) (quoting Ex parte New York, 256 U. S. 490, 497 (1921)); see also cases cited at n. 7, supra. As the dissent in Union Gas recognized, the plurality's conclusion-that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III-"contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction." Union Gas, supra, at 39.Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Marbury v. Madison, 1 Cranch 137 (1803). The plurality's citation of prior decisions for support was based upon what we believe to be a misreading of precedent. See Union Gas, 491 U. S., at 40-41 (SCALIA, J., dissenting). The plurality claimed support for its decision from a case holding the unremarkable, and completely unrelated, proposition that the States may waive their sovereign immunity, see id., at 14-15 (citing Parden v. Terminal Railway of Ala. Docks Dept., 377 U. S. 184 (1964)), and cited as precedent propositions that had been merely assumed for the sake of argument in earlier cases, see 491 U. S., at 15 (citing Welch v. Texas Dept. of Highways and Public Transp., 483 U. S., at 475-476, and n. 5, and County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S., at 252).The plurality's extended reliance upon our decision in Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), that Congress could under the Fourteenth Amendment abrogate the States' sovereign immunity was also, we believe, misplaced. Fitzpatrick was based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh Amendment and the ratification of the Constitution, oper-66ated to alter the pre-existing balance between state and federal power achieved by Article III and the Eleventh Amendment. Id., at 454. As the dissent in Union Gas made clear, Fitzpatrick cannot be read to justify "limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Union Gas, supra, at 42 (SCALIA, J., dissenting).In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139 (1993). Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. See Nichols v. United States, 511 U. S. 738, 746 (1994) (the "degree of confusion following a splintered decision ... is itself a reason for reexamining that decision"). The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.The dissent makes no effort to defend the decision in Union Gas, see post, at 100, but nonetheless would find congressional power to abrogate in this case.ll Contending that our decision is a novel extension of the Eleventh Amendment, the dissent chides us for "attend[ingJ" to dicta. We adhere in this case, however, not to mere obiter dicta, but rather to the well-established rationale upon which the11 Unless otherwise indicated, all references to the dissent are to the dissenting opinion authored by JUSTICE SOUTER.67Court based the results of its earlier decisions. When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 668 (1989) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law") (KENNEDY, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U. S. 421, 490 (1986) ("Although technically dicta, ... an important part of the Court's rationale for the result that it reache[s] ... is entitled to greater weight ... ") (O'CONNOR, J., concurring). For over a century, we have grounded our decisions in the oft-repeated understanding of state sovereign immunity as an essential part of the Eleventh Amendment. In Principality of Monaco v. Mississippi, 292 U. S. 313 (1934), the Court held that the Eleventh Amendment barred a suit brought against a State by a foreign state. Chief Justice Hughes wrote for a unanimous Court:"[N]either the literal sweep of the words of Clause one of § 2 of Article III, nor the absence of restriction in the letter of the Eleventh Amendment, permits the conclusion that in all controversies of the sort described in Clause one, and omitted from the words of the Eleventh Amendment, a State may be sued without her consent. Thus Clause one specifically provides that the judicial Power shall extend 'to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.' But, although a case may arise under the Constitution and laws of the United States, the judicial power does not extend to it if the suit is68sought to be prosecuted against a State, without her consent, by one of her own citizens ...."Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been a 'surrender of this immunity in the plan of the convention.'" Id., at 321-323 (citations and footnote omitted).See id., at 329-330; see also Pennhurst, 465 U. S., at 98 ("In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III"); Ex parte New York, 256 U. S., at 497 ("[T]he entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given ... "). It is true that we have not had occasion previously to apply established Eleventh Amendment principles to the question whether Congress has the power to abrogate state sovereign immunity (save in Union Gas). But consideration of that question must proceed with fidelity to this century-old doctrine.The dissent, to the contrary, disregards our case law in favor of a theory cobbled together from law review articles and its own version of historical events. The dissent cites not a single decision since Hans (other than Union Gas) that supports its view of state sovereign immunity, instead relying upon the now-discredited decision in Chisholm v. Georgia,2 Dall. 419 (1793). See, e. g., post, at 152, n. 47. Its undocumented and highly speculative extralegal explanation of69the decision in Hans is a disservice to the Court's traditional method of adjudication. See post, at 120-123.The dissent mischaracterizes the Hans opinion. That decision found its roots not solely in the common law of England, but in the much more fundamental "'jurisprudence in all civilized nations.'" Hans, 134 U. S., at 17, quoting Beers v. Arkansas, 20 How. 527, 529 (1858); see also The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton) (sovereign immunity "is the general sense and the general practice of mankind"). The dissent's proposition that the common law of England, where adopted by the States, was open to change by the Legislature is wholly unexceptionable and largely beside the point: that common law provided the substantive rules of law rather than jurisdiction. Cf. Monaco, supra, at 323 (state sovereign immunity, like the requirement that there be a "justiciable" controversy, is a constitutionally grounded limit on federal jurisdiction). It also is noteworthy that the principle of state sovereign immunity stands distinct from other principles of the common law in that only the former prompted a specific constitutional amendment.Hans-with a much closer vantage point than the dissent-recognized that the decision in Chisholm was contrary to the well-understood meaning of the Constitution. The dissent's conclusion that the decision in Chisholm was "reasonable," post, at 106, certainly would have struck the Framers of the Eleventh Amendment as quite odd: That decision created "such a shock of surprise that the Eleventh Amendment was at once proposed and adopted." Monaco, supra, at 325. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man-we long have recognized that blind reliance upon the text of the Eleventh Amendment is "'to strain the Constitution and the law to a construction never imagined or dreamed of.'" Monaco, supra, at 326, quoting Hans, supra, at 15. The text dealt in terms only with the problem presented by the decision in Chisholm; in light of the fact that the federal courts did not70have federal-question jurisdiction at the time the Amendment was passed (and would not have it until 1875), it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States.That same consideration causes the dissent's criticism of the views of Marshall, Madison, and Hamilton to ring hollow. The dissent cites statements made by those three influential Framers, the most natural reading of which would preclude all federal jurisdiction over an unconsenting State.12 Struggling against this reading, however, the dissent finds significant the absence of any contention that sovereign immunity would affect the new federal-question jurisdiction. Post, at 142-150. But the lack of any statute vesting general federal-question jurisdiction in the federal courts until much later makes the dissent's demand for greater specificity about a then-dormant jurisdiction overly exacting.1312We note here also that the dissent quotes selectively from the Framers' statements that it references. The dissent cites the following, for instance, as a statement made by Madison: "[T]he Constitution 'give[s] a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.' " Post, at 143 (opinion of SOUTER, J.). But that statement, perhaps ambiguous when read in isolation, was preceded by the following: "[J]urisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal courts. It appears to me that this can have no operation but this:" See 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1836).13 Although the absence of any discussion dealing with federal-question jurisdiction is therefore unremarkable, what is notably lacking in the Framers' statements is any mention of Congress' power to abrogate the States' immunity. The absence of any discussion of that power is particularly striking in light of the fact that the Framers virtually always were very specific about the exception to state sovereign immunity arising from a State's consent to suit. See, e. g., The Federalist No. 81, pp. 487-488 (C. Rossiter ed. 1961) (A. Hamilton) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual with-71In putting forward a new theory of state sovereign immunity, the dissent develops its own vision of the political system created by the Framers, concluding with the statement that "[t]he Framers' principal objectives in rejecting English theories of unitary sovereignty ... would have been impeded if a new concept of sovereign immunity had taken its place in federal-question cases, and would have been substantially thwarted if that new immunity had been held untouchable by any congressional effort to abrogate it." 14 Post, at 157. This sweeping statement ignores the fact that the Nation survived for nearly two centuries without the question of the existence of such power ever being presented to this Court. And Congress itself waited nearly a century before even conferring federal-question jurisdiction on the lower federal courts.15out its consent .... Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must be merely ideal") (emphasis in the original); 3 Elliot, supra, at 533 (J. Madison) ("It is not in the power of individuals to call any state into court .... [The Constitution] can have no operation but this: ... if a state should condescend to be a party, this court may take cognizance of it").14 This argument wholly disregards other methods of ensuring the States' compliance with federal law: The Federal Government can bring suit in federal court against a State, see, e. g., United States v. Texas, 143 U. S. 621, 644-645 (1892) (finding such power necessary to the "permanence of the Union"); an individual can bring suit against a state officer in order to ensure that the officer's conduct is in compliance with federal law, see, e. g., Ex parte Young, 209 U. S. 123 (1908); and this Court is empowered to review a question of federal law arising from a state-court decision where a State has consented to suit, see, e. g., Cohens v. Virginia, 6 Wheat. 264 (1821).15 JUSTICE STEVENS, in his dissenting opinion, makes two points that merit separate response. First, he contends that no distinction may be drawn between state sovereign immunity and the immunity enjoyed by state and federal officials. But even assuming that the latter has no constitutional foundation, the distinction is clear: The Constitution specifically recognizes the States as sovereign entities, while government officials enjoy no such constitutional recognition. Second, JUSTICE STEVENS criti-72In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.16 The Eleventh Amendment restricts thecizes our prior decisions applying the "clear statement rule," suggesting that they were based upon an understanding that Article I allowed Congress to abrogate state sovereign immunity. His criticism, however, ignores the fact that many of those cases arose in the context of a statute passed under the Fourteenth Amendment, where Congress' authority to abrogate is undisputed. See, e. g., Quern v. Jordan, 440 U. S. 332 (1979). And a more fundamental flaw of the criticism is its failure to recognize that both the doctrine requiring avoidance of constitutional questions, and principles of federalism, require us always to apply the clear statement rule before we consider the constitutional question whether Congress has the power to abrogate.16 JUSTICE STEVENS understands our opinion to prohibit federal jurisdiction over suits to enforce the bankruptcy, copyright, and antitrust laws against the States. He notes that federal jurisdiction over those statutory schemes is exclusive, and therefore concludes that there is "no remedy" for state violations of those federal statutes. Post, at 78, n. 1.That conclusion is exaggerated both in its substance and in its significance. First, JUSTICE STEVENS' statement is misleadingly overbroad. We have already seen that several avenues remain open for ensuring state compliance with federal law. See n. 14, supra. Most notably, an individual may obtain injunctive relief under Ex parte Young in order to remedy a state officer's ongoing violation of federal law. See n. 14, supra. Second, contrary to the implication of JUSTICE STEVENS' conclusion, it has not been widely thought that the federal antitrust, bankruptcy, or copyright statutes abrogated the States' sovereign immunity. This Court never has awarded relief against a State under any of those statutory schemes; in the decision of this Court that JUSTICE STEVENS cites (and somehow labels "incompatible" with our decision here), we specifically reserved the question whether the Eleventh Amendment would allow a suit to enforce the antitrust laws against a State. See Goldfarb v. Virginia State Bar, 42173judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction.IIIPetitioner argues that we may exercise jurisdiction over its suit to enforce § 2710(d)(3) against the Governor notwithstanding the jurisdictional bar of the Eleventh Amendment. Petitioner notes that since our decision in Ex parte Young, 209 U. S. 123 (1908), we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to "end a continuing violation of federal law." Green v. Mansour, 474 U. S., at 68. The situation presented here, however, is sufficiently different from that giving rise to the traditional Ex parte Young action so as to preclude the availability of that doctrine.Here, the "continuing violation of federal law" alleged by petitioner is the Governor's failure to bring the State into compliance with § 2710(d)(3). But the duty to negotiate imposed upon the State by that statutory provision does not stand alone. Rather, as we have seen, supra, at 49-50, Congress passed § 2710(d)(3) in conjunction with the care-u. S. 773, 792, n. 22 (1975). Although the copyright and bankruptcy laws have existed practically since our Nation's inception, and the antitrust laws have been in force for over a century, there is no established tradition in the lower federal courts of allowing enforcement of those federal statutes against the States. Notably, both Court of Appeals decisions cited by JUSTICE STEVENS were issued last year and were based upon Union Gas. See Chavez v. Arte Publico Press, 59 F.3d 539 (CA5 1995); Matter of Merchants Grain, Inc. v. Mahern, 59 F.3d 630 (CA7 1995). Indeed, while the Court of Appeals in Chavez allowed the suit against the State to go forward, it expressly recognized that its holding was unprecedented. See Chavez, 59 F. 3d, at 546 ("[W]e are aware of no case that specifically holds that laws passed pursuant to the Copyright Clause can abrogate State immunity").74fully crafted and intricate remedial scheme set forth in § 2710(d)(7).Where Congress has created a remedial scheme for the enforcement of a particular federal right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary. Schweiker v. Chilicky, 487 U. S. 412, 423 (1988) ("When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional ... remedies"). Here, of course, the question is not whether a remedy should be created, but instead is whether the Eleventh Amendment bar should be lifted, as it was in Ex parte Young, in order to allow a suit against a state officer. Nevertheless, we think that the same general principle applies: Therefore, where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.Here, Congress intended § 2710(d)(3) to be enforced against the State in an action brought under § 2710(d)(7); the intricate procedures set forth in that provision show that Congress intended therein not only to define, but also to limit significantly, the duty imposed by § 2710(d)(3). For example, where the court finds that the State has failed to negotiate in good faith, the only remedy prescribed is an order directing the State and the Indian tribe to conclude a compact within 60 days. And if the parties disregard the court's order and fail to conclude a compact within the 60-day period, the only sanction is that each party then must submit a proposed compact to a mediator who selects the one which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secre-75tary of the Interior who then must prescribe regulations governing class III gaming on the tribal lands at issue. By contrast with this quite modest set of sanctions, an action brought against a state official under Ex parte Young would expose that official to the full remedial powers of a federal court, including, presumably, contempt sanctions. If § 2710(d)(3) could be enforced in a suit under Ex parte Young, § 2710(d)(7) would have been superfluous; it is difficult to see why an Indian tribe would suffer through the intricate scheme of § 2710(d)(7) when more complete and more immediate relief would be available under Ex parte Young.17Here, of course, we have found that Congress does not have authority under the Constitution to make the State suable in federal court under § 2710(d)(7). Nevertheless, the fact that Congress chose to impose upon the State a liability17 Contrary to the claims of the dissent, we do not hold that Congress cannot authorize federal jurisdiction under Ex parte Young over a cause of action with a limited remedial scheme. We find only that Congress did not intend that result in the Indian Gaming Regulatory Act. Although one might argue that the text of § 2710(d)(7)(A)(i), taken alone, is broad enough to encompass both a suit against a State (under an abrogation theory) and a suit against a state official (under an Ex parte Young theory), subsection (A)(i) of § 2710(d)(7) cannot be read in isolation from subsections (B)(ii)-(vii), which repeatedly refer exclusively to "the State." See supra, at 56-57. In this regard, § 2710(d)(7) stands in contrast to the statutes cited by the dissent as examples where lower courts have found that Congress implicitly authorized suit under Ex parte Young. Compare 28 U. S. C. § 2254(e) (federal court authorized to issue an "order directed to an appropriate State official"); 42 U. S. C. § 11001 (1988 ed.) (requiring "the Governor" of a State to perform certain actions and holding "the Governor" responsible for nonperformance); 33 U. S. C. § 1365(a) (authorizing a suit against "any person" who is alleged to be in violation of relevant water pollution laws). Similarly the duty imposed by the Act-to "negotiate ... in good faith to enter into" a compact with another sovereignstands distinct in that it is not of the sort likely to be performed by an individual state executive officer or even a group of officers. Cf. State ex rel. Stephan v. Finney, 836 P. 2d 1169, 251 Kan. 559 (1992) (Governor of Kansas may negotiate but may not enter into compact without grant of power from legislature).76that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter under § 2710(d)(3). Nor are we free to rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that § 2710(d)(7) was beyond its authority. If that effort is to be made, it should be made by Congress, and not by the federal courts. We hold that Ex parte Young is inapplicable to petitioner's suit against the Governor of Florida, and therefore that suit is barred by the Eleventh Amendment and must be dismissed for a lack of jurisdiction.IVThe Eleventh Amendment prohibits Congress from making the State of Florida capable of being sued in federal court. The narrow exception to the Eleventh Amendment provided by the Ex parte Young doctrine cannot be used to enforce § 2710(d)(3) because Congress enacted a remedial scheme, § 2710(d)(7), specifically designed for the enforcement of that right. The Eleventh Circuit's dismissal of petitioner's suit is hereby affirmed.18It is so ordered

OCTOBER TERM, 1995SyllabusSEMINOLE TRIBE OF FLORIDA v. FLORIDA ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 94-12. Argued October 11, 1995-Decided March 27,1996The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 25 U. S. C. § 2710(d)(I)(C). Under the Act, States have a duty to negotiate in good faith with a tribe toward the formation of a compact, § 2710(d)(3)(A), and a tribe may sue a State in federal court in order to compel performance of that duty, § 2710(d)(7). In this § 2710(d)(7) suit, respondents, Florida and its Governor, moved to dismiss petitioner Seminole Tribe's complaint on the ground that the suit violated Florida's sovereign immunity from suit in federal court. The District Court denied the motion, but the Court of Appeals reversed, finding that the Indian Commerce Clause did not grant Congress the power to abrogate the States' Eleventh Amendment immunity and that Ex parte Young, 209 U. S. 123, does not permit an Indian tribe to force good-faith negotiations by suing a State's Governor.Held:1. The Eleventh Amendment prevents Congress from authorizing suits by Indian tribes against States to enforce legislation enacted pursuant to the Indian Commerce Clause. Pp. 54-73.(a) The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system and that "'[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without [a State's] consent.''' Hans v. Louisiana, 134 U. S. 1, 13. However, Congress may abrogate the States' sovereign immunity if it has "unequivocally expresse[d] its intent to abrogate the immunity" and has acted "pursuant to a valid exercise of power." Green v. Mansour, 474 U. S. 64, 68. Here, through the numerous references to the "State" in § 2710(d)(7)(B)'s text, Congress provided an "unmistakably clear" statement of its intent to abrogate. Pp. 54-57.(b) The inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on a single question: Was the Act in question passed pursuant to a constitutional provision granting Congress such power? This Court has found authority to abrogate under only two constitutional provisions: the45Fourteenth Amendment, see, e. g., Fitzpatrick v. Bitzer, 427 U. S. 445, and, in a plurality opinion, the Interstate Commerce Clause, Pennsylvania v. Union Gas Co., 491 U. S. 1. The Union Gas plurality found that Congress' power to abrogate came from the States' cession of their sovereignty when they gave Congress plenary power to regulate commerce. Under the rationale of Union Gas, the Indian Commerce Clause is indistinguishable from the Interstate Commerce Clause. pp.57-63.(c) However, in the five years since it was decided, Union Gas has proved to be a solitary departure from established law. Reconsidering that decision, none of the policies underlying stare decisis require this Court's continuing adherence to its holding. The decision has been of questionable precedential value, largely because a majority of the Court expressly disagreed with the plurality's rationale. Moreover, the deeply fractured decision has created confusion among the lower courts that have sought to understand and apply it. The plurality's rationale also deviated sharply from this Court's established federalism jurisprudence and essentially eviscerated the Court's decision in Hans, since the plurality's conclusion-that Congress could under Article I expand the scope of the federal courts' Article III jurisdiction-contradicted the fundamental notion that Article III sets forth the exclusive catalog of permissible federal-court jurisdiction. Thus, Union Gas was wrongly decided and is overruled. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. pp.63-73.2. The doctrine of Ex parte Young may not be used to enforce § 2710(d)(3) against a state official. That doctrine allows a suit against a state official to go forward, notwithstanding the Eleventh Amendment's jurisdictional bar, where the suit seeks prospective injunctive relief in order to end a continuing federal-law violation. However, where, as here, Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an Ex parte Young action. The intricate procedures set forth in § 2710(d)(7) show that Congress intended not only to define, but also significantly to limit, the duty imposed by § 2710(d)(3). The Act mandates only a modest set of sanctions against a State, culminating in the Secretary of the Interior prescribing gaming regulations where an agreement is not reached through negotiation or mediation. In contrast, an Ex parte Young action would expose a state official to a federal court's full remedial powers, including, presumably, contempt sanctions. Enforcement through an Ex parte Young suit would also make § 2710(d)(7) super-46Full Text of Opinion

1988_87-1031

JUSTICE BRENNAN delivered the opinion of the Court.We are called upon in this case to decide what statute of limitations governs a claim by a union member under § 101 (a)(2) of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), Pub.L. 86-257, 73 Stat. 522, 29 U.S.C. § 411(a)(2), alleging that the union violated its member's right to free speech as to union matters. [Footnote 1] Congress enacted no statute of limitations expressly applicable to § 101 actions.Petitioner Reed, the Secretary and Treasurer of Local 1715 (Local) of respondent United Transportation Union (Union), received reimbursement from the Local for "time Page 488 U. S. 322 lost" carrying out his union duties. After an audit the Union's president, respondent Hardin, disallowed these payments. Hardin ruled that petitioner was not entitled to the payments because he had failed to obtain approval for them prior to doing the tasks that caused him to lose time, and because his salary as an officer of the Local was intended to cover all his official duties. When petitioner subsequently attempted to enforce a policy that reimbursements required prior approval -- denying unapproved claims by the president and other officers of the Local -- Hardin overruled these decisions. Petitioner thereupon unsuccessfully sought reinstatement of his disallowed payment. In a series of letters to Hardin, the last dated August 2, 1983, petitioner alleged that more stringent standards had been applied to his reimbursement claims because he had been critical of the Local's president. Threatening suit, he asserted that the disallowance amounted to harassment for expressing his views on union matters and violated LMRDA § 101. Petitioner did not file this action in the Western District of North Carolina against the Union and various of its officers, however, until August 2, 1985.Respondents moved for summary judgment, arguing that petitioner had filed his suit out of time. Respondents maintained that on the reasoning of DelCostello v. Teamsters, 462 U. S. 151 (1983), petitioner's § 101 claim should be governed by the statute of limitations that applies to the filing of charges with the National Labor Relations Board alleging unfair labor practices defined in § 8 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158. Section 10(b) of the NLRA, 29 U.S.C. § 160(b), provides that such charges must be filed within six months. [Footnote 2] The District Court denied summary judgment, holding that petitioner's action was more akin to a civil rights claim than an unfair labor practice Page 488 U. S. 323 charge, and hence was governed by North Carolina's 3-year statute of limitations for personal inJury actions in accordance with the rule this Court established in Wilson v. Garcia, 471 U. S. 261 (1985). 633 F. Supp. 1516 (WDNC 1986).The Court of Appeals for the Fourth Circuit reversed, construing DelCostello to require that petitioner's § 101(a)(2) claim be governed by NLRA § 10(b). 828 F.2d 1066 (1987). We granted certiorari, 485 U.S. 933 (1988), to settle a conflict among Courts of Appeals as to the statute of limitations applicable to § 101(a)(2) actions. [Footnote 3] We now reverse the Fourth Circuit's decision, and hold that § 101(a)(2) claims are governed by state general or residual personal injury statutes, which are to be identified in conformity with our decision this Term in Owens v. Okure, ante p. 488 U. S. 235 (1989).ICongress not infrequently fails to supply an express statute of limitations when it creates a federal cause of action. When that occurs,"[w]e have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law."DelCostello, supra, at 462 U. S. 158. See, e.g., Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 483 U. S. 147 (1987) (noting that the Rules of Decision Act usually requires that a state statute be borrowed, and also that "[g]iven our longstanding practice of borrowing state law, and the congressional awareness Page 488 U. S. 324 of this practice, we can generally assume that Congress intends by its silence that we borrow state law"); Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 383 U. S. 703-705 (1966); Holmberg v. Armbrecht, 327 U. S. 392, 327 U. S. 395 (1946)."State legislatures do not devise their limitations periods with national interests in mind," however,"and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies."Occidental Life Ins. Co. of California v. EEOC, 432 U. S. 355, 432 U. S. 367 (1977). Thus, on the assumption that Congress would not choose "to adopt state [limitations] rules at odds with the purpose or operation of federal substantive law," DelCostello, supra, at 462 U. S. 161, we have recognized a closely circumscribed exception to the general rule that statutes of limitation are to be borrowed from state law. We decline to borrow a state statute of limitations only"when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking."DelCostello, supra, at 462 U. S. 172. See Agency Holding Corp., supra, (adopting federal statute of limitations for civil RICO claims); Occidental Life Ins. Co., supra, (federal limitations period applied to EEOC enforcement actions); McAllister v. Magnolia Petroleum Co., 357 U. S. 221 (1958) (federal limitations period applied to unseaworthiness actions); Holmberg v. Armbrecht, supra, (refusing to apply state statute to action to enforce federally created equitable right). This is a narrow exception to the general rule. As we made clear in DelCostello, "in labor law or elsewhere," application of a federal statute will be unusual, and "resort to state law remains the norm for borrowing of limitations periods." 462 U.S. at 462 U. S. 171. Respondents urge in this case that petitioner's § 101(a)(2) claim that he was penalized for exercising his right as a union member to speak freely as to union matters falls within the narrow exception requiring Page 488 U. S. 325 application of a federal statute of limitations, rather than within the general rule that we borrow an analogous state statute. We cannot agree.AWe have upon previous occasions considered the history of Title I of the LMRDA, and have concluded that"Congress modeled Title I after the Bill of Rights, and that the legislators intended § 101(a)(2) to restate a principal First Amendment value -- the right to speak one's mind without fear of reprisal."Steelworkers v. Sadlowski, 457 U. S. 102, 457 U. S. 111 (1982). Indeed, the amendments that eventually were enacted as Title I were introduced under the heading of "Bill of Rights of Members of Labor Organizations." See Finnegan v. Leu, 456 U. S. 431, 456 U. S. 435 (1982). Congress considered the protection afforded by Title I to free speech and assembly in the union context necessary to bring an end to abuses by union leadership that had curtailed union democracy. It"adopted the freedom of speech and assembly provision in order to promote union democracy . . . [and] recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal."Sadlowski, supra, at 457 U. S. 112. See also Finnegan, supra, at 436 (Title I was "necessary to further the [LMRDA's] primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships"). Thus the core purpose of § 101(a)(2) is to protect free speech and assembly rights because these are considered "vital to the independence of the membership and the effective and fair operation of the union as the representative." Hall v. Cole, 412 U. S. 1, 412 U. S. 8 (1973).As a preliminary matter, consideration of this core purpose suggests that "all claims arising out of [§ 101(a)(2)] should be characterized in the same way.'" Agency Holding Corp., supra, at 483 U. S. 147, quoting Wilson v. Garcia, 471 U. S. 261, 471 U. S. 268 (1985). Though § 101(a)(2) creates personal rights, a union Page 488 U. S. 326 member vindicating those rights also serves public goals, in that he "necessarily render[s] a substantial service to his union as an institution and to all of its members," contributing to the improvement or preservation of democracy within the union. Hall, supra, at 412 U. S. 8. Time-consuming litigation as to the collateral question of the appropriate statute of limitations for a § 101 claim would likely interfere with Congress' aim that actions to enforce free speech and association rights should in fact enhance union democracy. Such litigation creates uncertainty as to the time available for filing, and it would not be surprising if the prospect of perhaps prolonged litigation against the union before ever the merits are reached were to have a deterrent effect on would be § 101(a)(2) plaintiffs. The diversion of resources to collateral statute of limitations litigation would be foreign to the central purposes of § 101(a)(2), and thus we are persuaded that all claims under that provision should be characterized in the same way. Determining exactly how they should be characterized does not appear to us to be a difficult task, given a proper understanding of the narrow scope of the DelCostello exception to our standard borrowing rule, and of the nature and purpose of § 101(a)(2).Because § 101(a)(2) protects rights of free speech and assembly, and was patterned after the First Amendment, it is readily analogized for the purpose of borrowing a statute of limitations to state personal injury actions. We find it unnecessary to detail here the elements of this analogy. We have previously considered possible analogies between federal civil rights actions under 42 U.S.C. § 1983 (which lacks an express statute of limitations) and various state law claims, and have held that § 1983 actions are governed by state general or residual personal injury statutes of limitations. Owens v. Okure, ante p. 488 U. S. 235; Wilson v. Garcia, supra. See also Goodman v. Lukens Steel Co., 482 U. S. 656 (1987) (applying state personal injury statute to federal civil rights action against a private party brought under 42 Page 488 U. S. 327 U.S.C. § 1981). Since § 101(a)(2) has evident similarities to § 1983, which prohibits the infringement of First Amendment rights by persons acting under color of state law, it is apparent that § 101(a)(2) actions also are analogous to state personal injury claims, and under our usual borrowing rule would take their statutes of limitations. Moreover, these state personal injury statutes are of sufficient length, see Owens, ante at 488 U. S. 248, nn. 9 and 10, to accommodate the practical difficulties faced by § 101(a)(2) plaintiffs, which include identifying the injury, deciding in the first place to bring suit against and thereby antagonize union leadership, and finding an attorney. See Doty v. Sewall, 784 F.2d 1, 9 (CA1 1986). As a result, no practicalities of litigation compel us to search beyond state law for a more analogous statute of limitations. Cf. Agency Holding Corp., 483 U.S. at 483 U. S. 147-148; DelCostello, 462 U.S. at 462 U. S. 165-166, 167-168 (and see n 4, infra); Burnett v. Grattan, 468 U. S. 42, 468 U. S. 50-51 (1984). In light of the analogy between § 101(a)(2) and personal injury actions, and of the lack of any conflict between the practicalities of § 101(a)(2) litigation and state personal injury limitations periods, we are bound to borrow state personal injury statutes absent some compelling demonstration that "the federal policies at stake" in § 101(a)(2) actions make a federal limitations period "a significantly more appropriate vehicle for interstitial lawmaking." DelCostello, supra, at 462 U. S. 172.BRespondents argue that the same federal labor policies that led us in DelCostello to borrow the NLRA § 10(b) statute of limitations for hybrid § 301/fair representation claims likewise require that we borrow § 10(b) for LMRDA § 101 (a)(2) actions. This argument lacks merit. It fails to take seriously our admonition that analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies. More importantly, it entirely ignores the core federal interest furthered by § 101(a)(2) -- the Page 488 U. S. 328 interest in union democracy promoted by free speech and assembly rights of union members -- instead urging that we select a statute of limitations to serve federal policies that might merely be implicated by tangential and contingent effects of some § 101(a)(2) litigation.We declined in DelCostello to apply state statutes of limitations for vacation of an arbitration award or for legal malpractice to an employee's hybrid § 301/fair representation action. Such hybrid suits formally comprise two causes of action. First, the employee alleges that the employer violated § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185, by breaching the collective bargaining agreement. Second, the employee claims that the union breached its duty of fair representation, which this Court has implied from the scheme of the NLRA, by mishandling the ensuing grievance-and-arbitration proceedings. See DelCostello, supra, at 462 U. S. 164, and n. 14. We held in DelCostello that, having regard to "the policies of federal labor law and the practicalities of hybrid § 301/fair representation litigation," 462 U.S. at 462 U. S. 165, § 10(b) of the NLRA, with its 6-month limitations period for unfair labor practice charges, provided the closest analogy for hybrid § 301/fair representation actions. [Footnote 4] Page 488 U. S. 329Respondents argue, and the Court of Appeals held, that the § 10(b) 6-month limitations period must be applied to § 101(a)(2) actions in order to further the federal policy that calls for "rapid resolution of internal union disputes'" in order "`to maintain . . . stable bargaining relationships.'" 828 F.2d at 1069, quoting Local Union 1397, United Steelworkers of America, AFL-CIO v. United Steelworkers of America, AFL-CIO, 748 F.2d 180, 184 (CA3 1984). It is true that, in DelCostello, we held that use of a long malpractice statute of limitations for hybrid § 301/fair representation actions would conflict with the federal policy favoring "the relatively rapid final resolution of labor disputes." 462 U.S. at 462 U. S. 168. The specific focus of our comparison between unfair labor practice charges governed by § 10(b) and hybrid § 301/fair representation claims was their effects upon the formation and operation of the collective bargaining agreement between the employer and the bargaining representative, and upon the private settlement of disputes under that agreement through grievance and arbitration procedures. [Footnote 5] Page 488 U. S. 330 We noted that the § 10(b) period was"'attuned to . . . the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective bargaining system.'"Id. at 462 U. S. 171, quoting United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 451 U. S. 70 (1981) (Stewart, J., concurring in judgment). Those same interests, we held, are implicated by hybrid § 301/fair representation claims against union and employer, because such claims constitute a direct challenge to private dispute settlement under the collective bargaining agreement. DelCostello, supra, at 462 U. S. 165.Insofar as interests in stable bargaining relationships and in private dispute resolution under collective bargaining agreements are implicated by § 101(a)(2) claims, however, the relationship will generally be tangential and remote -- as in the present case, which involves an internal union dispute not directly related in any way to collective bargaining or dispute settlement under a collective bargaining agreement. To be sure, the Court of Appeals stated:"Internal union disputes, if allowed to fester, may erode the confidence of union members in their leaders and possibly cause a disaffection with the union, thus weakening the union and its ability to bargain for its members. Such prolonged disputes may also distract union officials from their sole purpose -- representation of union members in their relations with their employer. These probable effects of protracted disputes may be destabilizing to labor-management relations."828 F.2d at 1070. See also Local Union 1397, supra, at 184 ("[D]issension within a union naturally affects that union's activities and effectiveness Page 488 U. S. 331 in the collective bargaining arena"). These observations have some plausibility. But they are not enough to persuade us that federal policy requires that § 10(b) govern claims under § 101(a)(2) of the LMRDA, for they establish no more than that § 101(a)(2) actions may sometimes have "some impact on economic relations between union and employer and on labor peace." Brief for Respondents 22. This is substantially less immediate and less significant an impact on bargaining and private dispute settlement than that which led us to apply the § 10(b) statute to hybrid § 301/fair representation claims, which directly challenge both the employer's adherence to the collective bargaining agreement and the union's representation of the employee in grievance and arbitration procedures. As the Court of Appeals for the First Circuit noted in Doty v. Sewall, 784 F.2d at 7, a Title I suit does not directly"challeng[e] the 'stable relationship' between the employer and the union. It does not affect any interpretation or effect any reinterpretation of the collective bargaining agreement and so, unlike the hybrid actions, a Title I claim does not attack a compromise between labor and management. . . . There is no erosion of the finality of private settlements, for in the free standing LMRDA cases the union member is not attempting to attack any such settlement."See also Davis v. United Automobile, Aerospace and Agriculture Implement Workers of America, 765 F.2d 1510, 1514 (CA11 1985). Thus the federal interests in collective bargaining and in the resolution of disputes under collective bargaining agreements, which require application of a 6-month statute of limitations to unfair labor practice charges and hybrid § 301/fair representation claims, simply are not directly involved in § 101(a)(2) actions. [Footnote 6] Page 488 U. S. 332There is another and more important reason why we cannot conclude in this case, as we did in DelCostello, that § 10(b) provides "a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here." 462 U.S. at 462 U. S. 169. Section 101(a)(2) implements a federal policy -- to guarantee free speech and association rights in order to further union democracy -- that simply had no part in the design of a statute of limitations for unfair labor practice charges. Indeed, Title I of the LMRDA was a response to a perception that the NLRA, including the § 8(b) provisions defining unfair labor practices by labor organizations, had failed to provide the necessary protection for the free speech and other rights of union members that Congress considered essential to the democratic operation of unions. See, e.g., Steelworkers v. Sadlowski, 457 U. S. 102, 457 U. S. 108-110 (1982). Hence while § 10(b) was "attuned to . . . the . . . balance between national interests in stable bargaining relationships and finality of private settlements'" on the one hand, and "`an employee's interest in setting aside [a] settlement under the collective bargaining system'" on the other, DelCostello, supra, at 462 U. S. 171, quoting Mitchell, supra, at 451 U. S. 70, the relevant balance in the case of Page 488 U. S. 333 § 101(a)(2) actions is quite different. The second element in the § 10(b) balance is replaced in § 101(a)(2) cases by"a union member's interest in protection against the infringement of his rights of free speech[, which] rises to a national interest, as embodied in section 101(a)(2) of the LMRDA, . . . and thus seems of greater importance than an employee's interest in setting aside an individual settlement under a collective bargaining agreement."Davis, supra, at 1514.The 6-month § 10(b) statute of limitations was crafted to accommodate federal interests in stable bargaining relationships and in private dispute resolution that are not squarely implicated in LMRDA § 101(a)(2) actions, and it was not adopted with the distinct federal interest in the free speech of union members in mind. Hence it is not the case that "the federal policies at stake" in § 101(a)(2) actions make the § 10(b) statute of limitations "a significantly more appropriate vehicle for interstitial lawmaking" than the analogous state statute of limitations that our established borrowing rule favors. [Footnote 7] Page 488 U. S. 334IIBecause § 101(a)(2) of the LMRDA is modeled on the First Amendment to our Constitution, there is an analogy between § 101(a)(2) claims, § 1983 claims, and state personal injury actions. Indeed, we have already held that 42 U.S.C. § 1983, which like § 101(a)(2) protects the exercise of First Amendment rights, is governed by state general or residual personal injury statutes of limitations. Owens v. Okure, ante p. 488 U. S. 235. The well-established rule that statutes of limitations for federal causes of action not supplied with their own limitations periods will be borrowed from state law thus requires that state general or residual personal injury statutes be applied to § 101(a)(2) suits. None of the exceptions to that rule apply, for § 10(b) of the NLRA does not supply a more analogous statute; its 6-month limitations period is not better suited to the practicalities of § 101(a)(2) litigation; and it was not designed to accommodate federal policies similar to those implicated in § 101(a)(2) actions. 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 CourtReed v. United Transp. Union, 488 U.S. 319 (1989)Reed v. United Transportation UnionNo. 87-1031Argued November 2, 1988Decided January 11, 1989488 U.S. 319SyllabusTwo years after the last of the complained-of events occurred, petitioner, an officer of a local chapter of respondent union, filed suit against the union and various of its officers, alleging that they had violated his right to free speech as to union matters under § 101(a)(2) of Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). There is no statute of limitations expressly applicable to § 101 actions. The District Court denied respondents' summary judgment motion, rejecting their argument that petitioner had filed his suit out of time and holding that the action was governed by North Carolina's 3-year statute of limitations for personal injury actions. The Court of Appeals reversed, construing DelCostello v. Teamsters, 462 U. S. 151, to require that petitioner's § 101(a)(2) claim be governed by the 6-month statute of limitations set forth in § 10(b) of the National Labor Relations Act (NLRA) for filing unfair labor practice charges with the National Labor Relations Board.Held: Section 101(a)(2) claims are governed by state general or residual personal injury statutes of limitations. Pp. 488 U. S. 323-334.(a) The well-established general rule requires that the most closely analogous state statute of limitations be borrowed for a federal cause of action not supplied by Congress with its own limitations period. However, a narrow exception to that rule requires the application of a statute of limitations from elsewhere in federal law when the analogous state statute will frustrate or significantly interfere with federal policies, the federal law clearly provides a closer analogy, and the federal policies at stake and the practicalities of litigation render the federal rule significantly more appropriate. Pp. 488 U. S. 323-325.(b) The general borrowing rule requires that state general or residual personal injury statutes of limitations be applied to § 101(a)(2) suits. As a preliminary matter, it must be concluded that all such suits should be characterized in the same way, since the diversion of resources to collateral statute of limitations litigation would interfere with § 101(a)(2)'s core purpose of enhancing union democracy by protecting union members' rights to free speech and assembly from incursion by union leadership. Because § 101(a)(2) is modeled on the First Amendment, it is Page 488 U. S. 320 readily analogized to state personal injury actions under the reasoning of Owens v. Okure, ante p. 488 U. S. 235, where it was held that suits under 42 U.S.C. § 1983, which also protects the exercise of First Amendment rights, are governed by state general or residual personal injury statutes of limitations. Moreover, since such state limitations periods are of sufficient length to accommodate the practical difficulties faced by § 101(a)(2) plaintiffs -- which include identifying the injury, deciding in the first place to sue and thereby to antagonize union leadership, and finding an attorney -- the practicalities of litigation do not require a search for a more analogous statute of limitations. Pp. 488 U. S. 325-327.(c) The narrow exception to the general borrowing rule does not require the adoption of the § 10(b) limitations period for § 101(a)(2) claims. Respondents' argument to the contrary fails to take seriously the requirement that analogous state statutes of limitations are to be used unless they frustrate or significantly interfere with federal policies. The 6-month § 10(b) statute of limitations was crafted to accommodate federal interests in stable bargaining relationships between employers and unions and in private dispute resolution under collective bargaining agreements. Insofar as those interests are implicated by § 101(a)(2) claims, however, the relationship will generally be tangential or remote -- as in the present case, which involves an internal union dispute that can have only an indirect impact on economic relations between union and employer and on labor peace. More importantly, the core federal interest furthered by § 101(a)(2) -- the interest in union democracy promoted by union members' free speech and assembly rights -- simply had no part in the design of the § 10(b) statute of limitations for unfair labor practice charges. Indeed, Title I of the LMRDA was a response to a perception that the NLRA, including its unfair labor practices provisions, had failed to provide the necessary protections for free speech and other union members' rights. Hence, it is not the case here that the federal policies at stake in § 101(a)(2) actions make § 10(b) significantly more appropriate than the analogous state statutes of limitations that the established borrowing rule favors. DelCostello, supra, distinguished. Pp. 488 U. S. 327-334.828 F.2d 1066, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 488 U. S. 334. WHITE, J., filed a dissenting opinion, post, p. 488 U. S. 334. Page 488 U. S. 321

1990_90-285

JUSTICE KENNEDY delivered the opinion of the Court.This case requires us to determine whether a dispute over layoffs which occurred well after expiration of a collective bargaining agreement must be said to arise under the agreement despite its expiration. The question arises in the context of charges brought by the National Labor Relations Board (Board) alleging an unfair labor practice in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U.S.C. §§ 158(a)(1) and (5). We interpret our earlier decision in Nolde Bros., Inc. v. Bakery Workers. 430 U. S. 243 (1977).IPetitioner Litton operated a check printing plant in Santa Clara, California. The plant utilized both cold-type and hot-type printing processes. Printing Specialties & Paper Products Union No. 777, Affiliated With District Council No. 1 (Union), represented the production employees at the plant. The Union and Litton entered into a collective bargaining agreement which, with extensions, remained in effect until October 3, 1979. Section 19 of the Agreement is a broad arbitration provision: Page 501 U. S. 194"Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, the construction to be placed on any clause or clauses of the Agreement shall be determined by arbitration in the manner hereinafter set forth."App. 34. Section 21 of the Agreement sets forth a two-step grievance procedure, at the conclusion of which, if a grievance cannot be resolved, the matter may be submitted for binding arbitration. Id. at 35.Soon before the Agreement was to expire, an employee sought decertification of the Union. The Board conducted an election on August 17, 1979, in which the Union prevailed by a vote of 28 to 27. On July 2, 1980, after much post-election legal maneuvering, the Board issued a decision to certify the Union. No contract negotiations occurred during this period of uncertainty over the Union's status.Litton decided to test the Board's certification decision by refusing to bargain with the Union. The Board rejected Litton's position, and found its refusal to bargain an unfair labor practice. Litton Financial Printing Division, 256 N.L.R.B. 516 (1981). Meanwhile, Litton had decided to eliminate its cold-type operation at the plant, and in late August and early September of 1980, laid off 10 of the 42 persons working in the plant at that time. The laid-off employees worked either primarily or exclusively with the cold-type operation, and included six of the eleven most senior employees in the plant. The layoffs occurred without any notice to the Union.The Union filed identical grievances on behalf of each laid-off employee, claiming a violation of the Agreement, which had provided that, "in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal." App. 30. Litton refused to submit to the grievance and arbitration procedure or to negotiate over the decision to lay off the employees, and took a position later interpreted by the Board as a refusal to arbitrate Page 501 U. S. 195 under any and all circumstances. It offered instead to negotiate concerning the effects of the layoffs.On November 24, 1980, the General Counsel for the Board issued a complaint alleging that Litton's refusal to process the grievances amounted to an unfair labor practice within the meaning of §§ 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1) and (5). App. 15. On September 4, 1981, an Administrative Law Judge found that Litton had violated the NLRA by failing to process the grievances. App. 114-115. Relying upon the Board's decision in American Sink Top & Cabinet Co., 242 N.L. R.B. 408 (1979), the Administrative Law Judge went on to state that, if the grievances remained unresolved at the conclusion of the grievance process, Litton could not refuse to submit them to arbitration. App. 115-118. The Administrative Law Judge held also that Litton violated §§ 8(a)(1) and (5) when it bypassed the Union and paid severance wages directly to the 10 laid-off employees, and Litton did not contest that determination in further proceedings.Over six years later, the Board affirmed in part and reversed in part the decision of the Administrative Law Judge. 286 N.L. R.B. 817 (1987). The Board found that Litton had a duty to bargain over the layoffs, and violated § 8(a) by failure to do so. Based upon well-recognized Board precedent that the unilateral abandonment of a contractual grievance procedure upon expiration of the contract violates §§ 8(a)(1) and (5), the Board held that Litton had improperly refused to process the layoff grievances. See Bethlehem Steel Co., 136 N.L.R.B. 1500, 1503 (1962), enforced in pertinent part, 320 F.2d 615 (CA3 1963). The Board proceeded to apply its recent decision in Indiana & Michigan Electric Co., 284 N.L.R.B. 53 (1987), which contains the Board's current understanding of the principles of post-expiration arbitrability and of our opinion in Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977). The Board held that Litton's "wholesale repudiation" of its obligation to arbitrate any contractual grievance Page 501 U. S. 196 after the expiration of the Agreement also violated §§ 8(a)(1) and (5), as the Agreement's broad arbitration clause lacked"language sufficient to overcome the presumption that the obligation to arbitrate imposed by the contract extended to disputes arising under the contract and occurring after the contract had expired. Thus, [Litton] remained 'subject to a potentially viable contractual commitment to arbitrate even after the [Agreement] expired.'"286 N.L.R.B. at 818 (citation omitted). Litton did not seek review of, and we do not address here, the Board's determination that Litton committed an unfair labor practice by its unilateral abandonment of the grievance process and wholesale repudiation of any post-expiration obligation to arbitrate disputes.In fashioning a remedy, the Board went on to consider the arbitrability of these particular layoff grievances. Following Indiana & Michigan, the Board declared its determination to order arbitration "only when the grievances at issue arise under' the expired contract." 286 N.L.R.B. at 821 (citing Nolde Bros., supra). In finding that the dispute about layoffs was outside this category, the Board reasoned as follows:"The conduct that triggered the grievances . . . occurred after the contract had expired. The right to layoff by seniority if other factors such as ability and experience are equal is not 'a right worked for or accumulated over time.' Indiana & Michigan, supra, at 61. And, as in Indiana & Michigan Electric, there is no indication here that 'the parties contemplated that such rights could ripen or remain enforceable even after the contract expired.' Id. (citation omitted). Therefore, [Litton] had no contractual obligation to arbitrate the grievances."286 N.L.R.B. at 821-822. Although the Board refused to order arbitration, it did order Litton to process the grievances through the two-step grievance Page 501 U. S. 197 procedure, to bargain with the Union over the layoffs, and to provide a limited backpay remedy.The Board sought enforcement of its order, and both the Union and Litton petitioned for review. The Court of Appeals enforced the Board's order, with the exception of that portion holding the layoff grievances not arbitrable. 893 F.2d 1128 (CA9 1990). On that question, the Court of Appeals was willing to "assume without deciding that the Board's Indiana & Michigan decision is a reasonably defensible construction of the section 8(a)(5) duty to bargain." Id. at 1137. The court decided, nevertheless, that the Board had erred, because the right in question, the right to layoff in order of seniority if other things such as aptitude and ability are equal, did arise under the Agreement. The Court of Appeals thought the Board's contrary conclusion was in conflict with two later Board decisions, where the Board had recognized that seniority rights may arise under an expired contract, United Chrome Products, Inc., 288 N.L.R.B. 1176 (1988), and Uppco, Inc., 288 N.L.R.B. 937 (1988).The court cited a second conflict, one between Indiana & Michigan and the court's own interpretation of Nolde Bros. in Local Joint Executive Bd. of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F.2d 1159 (CA9 1986). In Royal Center, the Court of Appeals had rejected the argument that only rights accruing or vesting under a contract prior to termination are covered by the post-termination duty to arbitrate. Id. at 1163.Litton petitioned for a writ of certiorari. Because of substantial disagreement as to the proper application of our decision in Nolde Bros., [Footnote 1] we granted review limited to the Page 501 U. S. 198 question of arbitrability of the layoff grievances. 498 U.S. 966.IIASections 8(a)(5) and 8(d) of the NLRA, 29 U.S.C. §§ 158(a)(5) and (d), require an employer to bargain "in good faith with respect to wages, hours, and other terms and conditions of employment." The Board has taken the position that it is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations. The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment. See NLRB v. Katz, 369 U. S. 736 (1962). In Katz, the union was newly certified and the parties had yet to reach an initial agreement. The Katz doctrine has been extended as well to cases where, as here, an existing agreement has expired and negotiations on a new one have yet to be completed. See, e.g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 484 U. S. 544, n. 6 (1988). Page 501 U. S. 199Numerous terms and conditions of employment have been held to be the subject of mandatory bargaining under the NLRA. See generally 1 C. Morris, The Developing Labor Law 772-844 (2d ed.1983). Litton does not question that arrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining. See id. at 813 (citing cases); United States Gypsum Co., 94 N.L.R.B. 112, 131 (1951).The Board has ruled that most mandatory subjects of bargaining are within the Katz prohibition on unilateral changes. The Board has identified some terms and conditions of employment, however, which do not survive expiration of an agreement for purposes of this statutory policy. For instance, it is the Board's view that union security and dues check-off provisions are excluded from the unilateral change doctrine because of statutory provisions which permit these obligations only when specified by the express terms of a collective bargaining agreement. See 29 U.S.C. § 158(a)(3) (union security conditioned upon agreement of the parties); 29 U.S.C. § 186(c)(4) (dues check-off valid only until termination date of agreement); Indiana & Michigan, 284 N.L.R.B. at 55 (quoting Bethlehem Steel, 136 N.L.R.B. at 1502). Also, in recognition of the statutory right to strike, no-strike clauses are excluded from the unilateral change doctrine, except to the extent other dispute resolution methods survive expiration of the agreement. See 29 U.S.C. §§ 158(d)(4), 163 (union's statutory right to strike); Southwestern Steel & Supply, Inc. v. NLRB, 257 U.S.App.D.C.19, 23, 806 F.2d 1111, 1114 (1986).In Hilton-Davis Chemical Co., 185 N.L. R.B. 241 (1970), the Board determined that arbitration clauses are excluded from the prohibition on unilateral changes, reasoning that the commitment to arbitrate is a"voluntary surrender of the right of final decision which Congress . . . reserved to [the] parties. . . . [A]rbitration is, at bottom, a consensual surrender of the economic power which the parties are otherwise Page 501 U. S. 200 free to utilize."Id. at 242. The Board further relied upon our statements acknowledging the basic federal labor policy that "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." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574, 363 U. S. 582 (1960). See also 29 U.S.C. § 173(d) (phrased in terms of parties' agreed upon method of dispute resolution under an existing bargaining agreement). Since Hilton-Davis, the Board has adhered to the view that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective bargaining agreement.BThe Union argues that we should reject the Board's decision in Hilton-Davis Chemical Co., and instead hold that arbitration provisions are within Katz' prohibition on unilateral changes. The unilateral change doctrine, and the exclusion of arbitration from the scope of that doctrine, represent the Board's interpretation of the NLRA requirement that parties bargain in good faith. And "[i]f the Board adopts a rule that is rational and consistent with the Act . . . then the rule is entitled to deference from the courts." Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 482 U. S. 42 (1987); see, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 494 U. S. 786-787 (1990).We think the Board's decision in Hilton-Davis Chemical Co. is both rational and consistent with the Act. The rule is grounded in the strong statutory principle, found in both the language of the NLRA and its drafting history, of consensual rather than compulsory, arbitration. See Indiana & Michigan, supra, at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with our statement that"[n]o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so."Gateway Page 501 U. S. 201 Coal Co. v. Mine Workers, 414 U. S. 368, 414 U. S. 374 (1974). We reaffirm today that, under the NLRA, arbitration is a matter of consent, and that it will not be imposed upon parties beyond the scope of their agreement.In the absence of a binding method for resolution of post-expiration disputes, a party may be relegated to filing unfair labor practice charges with the Board if it believes that its counterpart has implemented a unilateral change in violation of the NLRA. If, as the Union urges, parties who favor labor arbitration during the term of a contract also desire it to resolve post-expiration disputes, the parties can consent to that arrangement by explicit agreement. Further, a collective bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until the parties bargain to impasse. [Footnote 2] Unlike the Union's suggestion that we impose arbitration of post-expiration disputes upon parties once they agree to arbitrate disputes arising under a contract, these alternatives would reinforce the statutory policy that arbitration is not compulsory.IIIThe Board argues that it is entitled to substantial deference here because it has determined the remedy for an unfair labor practice. As noted above, we will uphold the Board's interpretation of the NLRA so long as it is "rational and consistent with the Act." Fall River Dyeing & Finishing Corp. v. NLRB, supra, 482 U.S. at 482 U. S. 42. And we give the greatest latitude to the Board when its decision reflects its "difficult Page 501 U. S. 202 and delicate responsibility' of reconciling conflicting interests of labor and management," NLRB v. J. Weingarten, Inc., 420 U. S. 251, 420 U. S. 267 (1975). We have accorded the Board considerable authority to structure its remedial orders to effect the purposes of the NLRA and to order the relief it deems appropriate. See Shepard v. NLRB, 459 U. S. 344, 459 U. S. 352 (1983); Virginia Elec. & Power Co. v. NLRB, 319 U. S. 533, 319 U. S. 540 (1943).The portion of the Board's decision which we review today does discuss the appropriate remedy for a violation of the NLRA. But it does not follow that we must accord the same deference we recognized in Virginia Elec. & Power Co. and Shepard. Here, the Board's remedial discussion is not grounded in terms of any need to arbitrate these grievances in order "to effectuate the policies of the Act." Virginia Elec. & Power Co., supra, at 319 U. S. 540. Rather, the Board's decision not to order arbitration of the layoff grievances rests upon its interpretation of the Agreement, applying our decision in Nolde Bros. and the federal common law of collective bargaining agreements. The Board now defends its decision on the ground that it need not "reflexively order that which a complaining party may regard as complete relief' for every unfair labor practice," Shepard v. NLRB, supra, 459 U.S. at 459 U. S. 352; but its decision did not purport to rest upon such grounds.Although the Board has occasion to interpret collective bargaining agreements in the context of unfair labor practice adjudication, see NLRB v. C & C Plywood Corp., 385 U. S. 421 (1967), the Board is neither the sole nor the primary source of authority in such matters. "Arbitrators and courts are still the principal sources of contract interpretation." NLRB v. Strong, 393 U. S. 357, 393 U. S. 360-361 (1969). Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, "authorizes federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements." Textile Workers v. Lincoln Mills Page 501 U. S. 203 of Alabama, 353 U. S. 448, 353 U. S. 451 (1957) (emphasis added). We would risk the development of conflicting principles were we to defer to the Board in its interpretation of the contract, as distinct from its devising a remedy for the unfair labor practice that follows from a breach of contract. We cannot accord deference in contract interpretation here only to revert to our independent interpretation of collective bargaining agreements in a case arising under § 301. See Local Union 195, Int'l Brotherhood of Electrical Workers v. NLRB, 254 U.S.App.D.C. 360, 363-364, 797 F.2d 1027, 10301031 (1986).IVThe duty not to effect unilateral changes in most terms and conditions of employment, derived from the statutory command to bargain in good faith, is not the sole source of possible constraints upon the employer after the expiration date of a collective bargaining agreement. A similar duty may arise as well from the express or implied terms of the expired agreement itself. This, not the provisions of the NLRA, was the source of the obligation which controlled our decision in Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243 (1977). We now discuss that precedent in the context of the case before us.In Nolde Bros., a union brought suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to compel arbitration. Four days after termination of a collective bargaining agreement, the employer decided to cease operations. The employer settled employee wage claims, but refused to pay severance wages called for in the agreement, and declined to arbitrate the resulting dispute. The union argued that these wages"were in the nature of 'accrued' or 'vested' rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment."Nolde Bros., 430 U.S. at 430 U. S. 248. Page 501 U. S. 204 We agreed that"whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective bargaining contract, clearly arises under that contract."Id. at 430 U. S. 249 (emphasis in original).We acknowledged that "the arbitration duty is a creature of the collective bargaining agreement," and that the matter of arbitrability must be determined by reference to the agreement, rather than by compulsion of law. Id. at 430 U. S. 250-251. With this understanding, we held that the extensive obligation to arbitrate under the contract in question was not consistent with an interpretation that would eliminate all duty to arbitrate as of the date of expiration. That argument, we noted,"would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract's term."Id. at 430 U. S. 251. We found "strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract," id. at 430 U. S. 253, and noted that"the parties' failure to exclude from arbitrability contract disputes arising after termination . . . affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship,"id. at 430 U. S. 255. We found a presumption in favor of post-expiration arbitration of matters unless "negated expressly or by clear implication," ibid., but that conclusion was limited by the vital qualification that arbitration was of matters and disputes arising out of the relation governed by contract. Page 501 U. S. 205ALitton argues that provisions contained in the Agreement rebut the Nolde Bros. presumption that the duty to arbitrate disputes arising under an agreement outlasts the date of expiration. The Agreement provides that its stipulations "shall be in effect for the time hereinafter specified," App. 22, in other words, until the date of expiration and no longer. The Agreement's no-strike clause, which Litton characterizes as a quid pro quo for arbitration, applies only "during the term of this [a]greement," id. at 34. Finally, the Agreement provides for "interest arbitration" in case the parties are unable to conclude a successor agreement, id. at 53-55, proving that, where the parties wished for arbitration other than to resolve disputes as to contract interpretation, they knew how to draft such a clause. These arguments cannot prevail. The Agreement's unlimited arbitration clause, by which the parties agreed to arbitrate all "[d]ifferences that may arise between the parties" regarding the Agreement, violations thereof, or "the construction to be placed on any clause or clauses of the Agreement," id. at 34, places it within the precise rationale of Nolde Bros. It follows that, if a dispute arises under the contract here in question, it is subject to arbitration even in the post-contract period.BWith these matters resolved, we come to the crux of our inquiry. We agree with the approach of the Board and those courts which have interpreted Nolde Bros. to apply only where a dispute has its real source in the contract. The object of an arbitration clause is to implement a contract, not to transcend it. Nolde Bros. does not announce a rule that post-expiration grievances concerning terms and conditions of employment remain arbitrable. A rule of that sweep in fact would contradict the rationale of Nolde Bros. The Nolde Bros. presumption is limited to disputes arising under the contract. A post-expiration grievance can be Page 501 U. S. 206 said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.Any other reading of Nolde Bros. seems to assume that post-expiration terms and conditions of employment which coincide with the contractual terms can be said to arise under an expired contract, merely because the contract would have applied to those matters had it not expired. But that interpretation fails to recognize that an expired contract has, by its own terms, released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions of employment are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract. See Office and Professional Employees Ins. Trust Fund v. Laborers Funds Administrative Office of Northern California, Inc., 783 F.2d 919, 922 (CA9 1986) ("An expired [collective bargaining agreement] . . . is no longer a legally enforceable document.'" (citation omitted)); cf. Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (CA2 1988) (Section 301 of the LMRA, 29 U.S.C. § 185, does not provide a federal court jurisdiction where a bargaining agreement has expired, although rights and duties under the expired agreement "retain legal significance because they define the status quo" for purposes of the prohibition on unilateral changes).The difference is as elemental as that between Nolde Bros. and Katz. Under Katz, terms and conditions continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are terms imposed by law, at least so far as there is no unilateral right to change them. As the Union acknowledges, the obligation not to make unilateral Page 501 U. S. 207 changes is"rooted not in the contract, but in preservation of existing terms and conditions of employment, and applies before any contract has been negotiated."Brief for Respondents 34, n. 21. Katz illustrates this point with utter clarity, for in Katz, the employer was barred from imposing unilateral changes even though the parties had yet to execute their first collective bargaining agreement.Our decision in Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., Inc., 484 U. S. 539 (1988), further demonstrates the distinction between contractual obligations and post-expiration terms imposed by the NLRA. There, a bargaining agreement required employer contributions to a pension fund. We assumed that, under Katz, the employer's failure to continue contributions after expiration of the agreement could constitute an unfair labor practice, and if so, the Board could enforce the obligation. We rejected, however, the contention that such a failure amounted to a violation of the ERISA obligation to make contributions "under the terms of a collectively bargained agreement . . . in accordance with the terms and conditions of . . . such agreement." 29 U.S.C. § 1145. Any post-expiration obligation to contribute was imposed by the NLRA, not by the bargaining agreement, and so the district court lacked jurisdiction under § 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), to enforce the obligation.As with the obligation to make pension contributions in Advanced Lightweight Concrete Co., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective bargaining agreement provides in explicit terms that certain benefits continue after the agreement's expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract's arbitration Page 501 U. S. 208 provisions. See United Steelworkers of America v. Fort Pitt Steel Casting, Division of Conval-Penn, Inc., 598 F.2d 1273 (CA3 1979) (agreement provided for continuing medical benefits in the event of post-expiration labor dispute).Finally, as we found in Nolde Bros., structural provisions relating to remedies and dispute resolution -- for example, an arbitration provision -- may in some cases survive in order to enforce duties arising under the contract. Nolde Bros.' statement to that effect under § 301 of the LMRA is similar to the rule of contract interpretation which might apply to arbitration provisions of other commercial contracts. [Footnote 3] We presume as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the expiration of the agreement.CThe Union, and JUSTICE STEVENS' dissent, argue that we err in reaching the merits of the issue whether the post-termination grievances arise under the expired agreement because, it is said, that is an issue of contract interpretation to be submitted to an arbitrator in the first instance. Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to "arbitrate the arbitrability issue." AT & T Technologies, Inc. v. Page 501 U. S. 209 Communication Workers of America, 475 U. S. 643, 475 U. S. 651. We acknowledge that, where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause,"there is a presumption of arbitrability in the sense that '[a]n 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.'"Id. at 475 U. S. 650 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 564, 363 U. S. 582-583 (1960)). But we refuse to apply that presumption wholesale in the context of an expired bargaining agreement, for to do so would make limitless the contractual obligation to arbitrate. Although "[d]oubts should be resolved in favor of coverage," AT & T Technologies, supra, 475 U.S. at 475 U. S. 650, we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement.We apply these principles to the layoff grievances in the present case. The layoffs took place almost one year after the Agreement had expired. It follows that the grievances are arbitrable only if they involve rights which accrued or vested under the Agreement, or rights which carried over after expiration of the Agreement, not as legally imposed terms and conditions of employment, but as continuing obligations under the contract.The contractual right at issue, that "in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal," App. 30, involves a residual element of seniority. Seniority provisions, the Union argues,"create a form of earned advantage, accumulated over time, that can be understood as a special form of deferred compensation for time already worked."Brief for Respondents 23-25, n. 14. Leaving aside the Page 501 U. S. 210 question whether a provision requiring all layoffs to proceed in inverse order of seniority would support an analogy to the severance pay at issue in Nolde Bros., which was viewed as a form of deferred compensation, the layoff provision here cannot be so construed, and cannot be said to create a right that vested or accrued during the term of the Agreement or a contractual obligation that carries over after expiration.The order of layoffs under the Agreement was to be determined primarily with reference to "other factors such as aptitude and ability." Only where all such factors were equal was the employer required to look to seniority. Here, any arbitration proceeding would of necessity focus upon whether aptitude and ability -- and any unenumerated "other factors" -- were equal long after the Agreement had expired, as of the date of the decision to lay employees off and in light of Litton's decision to close down its cold-type printing operation.The important point is that factors such as aptitude and ability do not remain constant, but change over time. They cannot be said to vest or accrue or be understood as a form of deferred compensation. Specific aptitudes and abilities can either improve or atrophy. And the importance of any particular skill in this equation varies with the requirements of the employer's business at any given time. Aptitude and ability cannot be measured on some universal scale, but only by matching an employee to the requirements of an employer's business at that time. We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement's expiration. [Footnote 4] Page 501 U. S. 211VFor the reasons stated, we reverse the judgment of the Court of Appeals to the extent that the Court of Appeals refused to enforce the Board's order in its entirety and remanded the cause for further proceedings.It is so ordered

U.S. Supreme CourtLitton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991)Litton Financial Printing Division v. National Labor Relations BoardNo. 90-285Argued March 20, 1991Decided June 13, 1991501 U.S. 190SyllabusAmong other things, the collective bargaining agreement (Agreement) between petitioner Litton and the Union representing the production employees at Litton's printing plant broadly required that all differences as to contract construction or violations be determined by arbitration, specified that grievances that could not be resolved under a two-step grievance procedure should be submitted for binding arbitration, and provided that, in case of layoffs, length of continuous service would be the determining factor "if other things such as aptitude and ability [were] equal." The Agreement expired in October, 1979. A new agreement had not been negotiated when, in August and September, 1980, and without any notice to the Union, Litton laid off 10 of the workers at its plant, including 6 of the most senior employees, pursuant to its decision to close down its cold-type printing operation. The Union filed grievances on behalf of the laid-off employees, claiming a violation of the Agreement, but Litton refused to submit to the contractual grievance and arbitration procedure, to negotiate over its layoff decision, or to arbitrate under any circumstances. Based on its precedents dealing with unilateral post-expiration abandonment of contractual grievance procedures and post-expiration arbitrability, the National Labor Relations Board (Board) held that Litton's actions violated § 8(a)(1) and (5) of the National Labor Relations Act (NLRA). However, although it ordered Litton, inter alia, to process the grievances through the two-step grievance procedure and to bargain with the Union over the layoffs, the Board refused to order arbitration of the particular layoff disputes, ruling that they did not "arise under" the expired contract as required by its decision in Indiana & Michigan Electric Co., 284 N.L.R.B. 53, and its interpretation of this Court's decision in Nolde Bros., Inc. v. Bakery Workers, 430 U. S. 243. The Court of Appeals enforced the Board's order, with the exception of that portion holding the layoff grievance not arbitrable, ruling that the right to lay off in seniority order, if other things such as aptitude and ability were equal, did arise under the Agreement. Page 501 U. S. 191Held: The layoff dispute was not arbitrable. Pp. 501 U. S. 198-219.(a) The unilateral change doctrine of NLRB v. Katz, 369 U. S. 736, whereby an employer violates the NLRA if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment -- extends to cases in which an existing agreement has expired and negotiations on a new one have yet to be completed. See, e.g., Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U. S. 539, 484 U. S. 544, n. 6. However, since Hilton-Davis Chemical Co., 185 N.L.R.B. 241, the Board has held that an arbitration clause does not, by operation of the NLRA as interpreted in Katz, continue in effect after expiration of a collective bargaining agreement. Pp. 501 U. S. 198-200.(b) This Court will not extend the unilateral change doctrine to impose a statutory duty to arbitrate post-expiration disputes. The Board's Hilton-Davis Chemical Co. rule is both rational and consistent with the NLRA, under which arbitration is a matter of consent, and will not be imposed beyond the scope of the parties' agreement. See, e.g., Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 414 U. S. 374. The Board's rule is therefore entitled to deference. If parties who favor labor arbitration during a contract's term also desire it to resolve post-expiration disputes, they can draft their agreement to so indicate, to eliminate any hiatus between expiration of the old and execution of the new agreement, or to remain in effect until they bargain to impasse. Pp. 501 U. S. 200-201.(c) The Board's decision not to order arbitration of the layoff grievances in this case is not entitled to substantial deference. Although the Board has considerable authority to structure its remedial orders to effectuate the NLRA's purposes and to order the relief it deems appropriate, its decision here is not based on statutory considerations, but rests upon its interpretation of the Agreement, applying Nolde Bros. and the federal common law of collective bargaining. Arbitrators and courts, rather than the Board, are the principal sources of contract interpretation under § 301 of the Labor Management Relations Act. Deferring to the Board in its interpretation of contracts would risk the development of conflicting principles. Pp. 501 U.S. 201-203.(d) Nevertheless, as Nolde Bros. recognized, a post-expiration duty to arbitrate a dispute may arise from the express or implied terms of the expired agreement itself. Holding that the extensive obligation to arbitrate under the contract there at issue was not consistent with an interpretation that would eliminate all duty to arbitrate upon expiration, Nolde Bros., supra, 430 U.S. at 430 U. S. 255, found a presumption in favor of post-expiration arbitration of disputes unless negated expressly or by clear implication, so long as such disputes arose out of the relation governed by contract. Pp. 501 U.S. 203-204. Page 501 U. S. 192(e) The Agreement's unlimited arbitration clause places it within the precise rational of Nolde Bros., such that other Agreement provisions cannot rebut the Nolde Bros. presumption. P. 501 U. S. 205.(f) However, Nolde Bros. does not announce a broad rule that post-expiration grievances concerning terms and conditions of employment remain arbitrable, but applies only where a dispute has its real source in the contract. Absent an explicit agreement that certain benefits continue past expiration, a post-expiration grievance can be said to arise under the contract only where it involves facts and occurrences that arise before expiration, where a post-expiration action infringes a right that accrued or vested under the agreement, or where, under the normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. And, as Nolde Bros. found, structural provisions relating to remedies and dispute resolution -- e.g., an arbitration provision -- may in some cases survive in order to enforce duties under the contract. It is presumed as a matter of contract interpretation that the parties did not intend a pivotal dispute resolution provision to terminate for all purposes upon the Agreement's expiration. Pp. 501 U. S. 205-208.(g) Application of the foregoing principles reveals that the layoff dispute at issue does not arise under the Agreement. Since the layoffs took place almost one year after the Agreement expired, the grievances are arbitrable only if they involve rights which accrued or vested under the Agreement or carried over after its expiration. The layoff provision here does not satisfy these requirements and, unlike the severance pay provision at issue in Nolde Bros., cannot be construed as a grant of deferred compensation for time already worked. The order of layoffs under the Agreement was to be determined primarily with reference to "other [factors] such as aptitude and ability," which do not remain constant, but either improve or atrophy over time, and which vary in importance with the requirements of the employer's business at any given moment. Thus, any arbitration proceeding would, of necessity, focus upon whether such factors were equal as of the date of the layoff decision and the decision to close down the cold-type operation, and an intent to freeze any particular order of layoff or vest any contractual right as of the Agreement's expiration cannot be inferred. Pp. 501 U. S. 208-210.893 F.2d 1128 (CA9), reversed in part and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and SCALIA, JJ., joined, post, p. 501 U. S. 211. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and SCALIA, JJ., joined, post, p. 501 U. S. 218. Page 501 U. S. 193

1988_87-1729

JUSTICE WHITE delivered the opinion of the Court.We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it isIIn January, 1985, Christopher Reckmeyer was charged in a multicount indictment with running a massive drug importation and distribution scheme. The scheme was alleged to be a continuing criminal enterprise (CCE), in violation of 84 Stat. 1265, as amended, 21 U.S.C. § 848 (1982 ed., Supp. V). Relying on a portion of the CCE statute that authorizes forfeiture to the Government of "property constituting, or derived from . . . proceeds . . . obtained" from drug law Page 491 U. S. 620 violations, § 853(a), [Footnote 1] the indictment sought forfeiture of specified assets in Reckmeyer's possession. App. 33-40. At this time, the District Court, acting pursuant to § 853(e)(1) (A), [Footnote 2] entered a restraining order forbidding Reckmeyer to transfer any of the listed assets that were potentially forfeitable.Sometime earlier, Reckmeyer had retained petitioner, a law firm, to represent him in the ongoing grand jury investigation which resulted in the January, 1985, indictments. Notwithstanding the restraining order, Reckmeyer paid the firm $25,000 for preindictment legal services a few days after the indictment was handed down; this sum was placed by petitioner in an escrow account. Petitioner continued to represent Reckmeyer following the indictment. Page 491 U. S. 621On March 7, 1985, Reckmeyer moved to modify the District Court's earlier restraining order to permit him to use some of the restrained assets to pay petitioner's fees; Reckmeyer also sought to exempt from any postconviction forfeiture order the assets that he intended to use to pay petitioner. However, one week later, before the District Court could conduct a hearing on this motion, Reckmeyer entered a plea agreement with the Government. Under the agreement, Reckmeyer pleaded guilty to the drug-related CCE charge, and agreed to forfeit all of the specified assets listed in the indictment. The day after the Reckmeyer's plea was entered, the District Court denied his earlier motion to modify the restraining order, concluding that the plea and forfeiture agreement rendered irrelevant any further consideration of the propriety of the court's pretrial restraints. App. 54-55. Subsequently, an order forfeiting virtually all of the assets in Reckmeyer's possession was entered by the District Court in conjunction with his sentencing. Id. at 57-65.After this order was entered, petitioner filed a petition under § 853(n), which permits third parties with an interest in forfeited property to ask the sentencing court for an adjudication of their rights to that property; specifically, § 853(n) (6)(B) gives a third party who entered into a bona fide transaction with a defendant a right to make claims against forfeited property if that third party was "at the time of [the transaction] reasonably without cause to believe that the [defendant's assets were] subject to forfeiture." See also § 853(c). Petitioner claimed an interest in $170,000 of Reckmeyer's assets for services it had provided Reckmeyer in conducting his defense; petitioner also sought the $25,000 being held in the escrow account, as payment for preindictment legal services. Petitioner argued alternatively that assets used to pay an attorney were exempt from forfeiture under § 853, and if not, the failure of the statute to provide such an exemption rendered it unconstitutional. The District Court granted petitioner's claim for a share of the forfeited assets. Page 491 U. S. 622A panel of the Fourth Circuit affirmed, finding that -- while § 853 contained no statutory provision authorizing the payment of attorney's fees out of forfeited assets -- the statute's failure to do so impermissibly infringed a defendant's Sixth Amendment right to the counsel of his choice. United States v. Harvey, 814 F.2d 905 (1987). The Court of Appeals agreed to hear the case en banc and reversed. Sub nom. In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (1988). All the judges of the Fourth Circuit agreed that the language of the CCE statute acknowledged no exception to its forfeiture requirement that would recognize petitioner's claim to the forfeited assets. A majority found this statutory scheme constitutional, 837 F.2d at 642-648; four dissenting judges, however, agreed with the panel's view that the statute, so construed, violated the Sixth Amendment, id. at 651-653 (Phillips, J., dissenting).Petitioner sought review of the statutory and constitutional issues raised by the Court of Appeals' holding. We granted certiorari, 488 U.S. 940 (1988), and now affirm.IIPetitioner's first submission is that the statutory provision that authorizes pretrial restraining orders on potentially forfeitable assets in a defendant's possession, 21 U.S.C. § 853(e) (1982 ed., Supp. V), grants district courts equitable discretion to determine when such orders should be imposed. This discretion should be exercised under "traditional equitable standards," petitioner urges, including a "weigh[ing] of the equities and competing hardships on the parties"; under this approach, a court "must invariably strike the balance so as to allow a defendant [to pay] . . . for bona fide attorneys fees," petitioner argues. Brief for Petitioner 8. Petitioner further submits that, once a district court so exercises its discretion and fails to freeze assets that a defendant then uses to pay an attorney, the statute's provision for recapture of Page 491 U. S. 623 forfeitable assets transferred to third parties, § 853(c), may not operate on such sums.Petitioner's argument, as it acknowledges, is based on the view of the statute expounded by Judge Winter of the Second Circuit in his concurring opinion in that Court of Appeals' en banc decision, United States v. Monsanto, 852 F.2d 1400, 1405-1411 (1988). We reject this interpretation of the statute today in our decision in United States v. Monsanto, ante, p. 491 U. S. 600, which reverses the Second Circuit's holding in that case. As we explain in our Monsanto decision, ante at 491 U. S. 611-614, whatever discretion § 853(e) provides district court judges to refuse to enter pretrial restraining orders, it does not extend as far as petitioner urges -- nor does the exercise of that discretion "immunize" nonrestrained assets from subsequent forfeiture under § 853(c) if they are transferred to an attorney to pay legal fees. Thus, for the reasons provided in our opinion in Monsanto, we reject petitioner's statutory claim.IIIWe therefore address petitioner's constitutional challenges to the forfeiture law. [Footnote 3] Petitioner contends that the statute Page 491 U. S. 624 infringes on criminal defendants' Sixth Amendment right to counsel of choice, and upsets the "balance of power" between the Government and the accused in a manner contrary to the Due Process Clause of the Fifth Amendment. We consider these contentions in turn.APetitioner's first claim is that the forfeiture law makes impossible, or at least impermissibly burdens, a defendant's right "to select and be represented by one's preferred attorney." Wheat v. United States, 486 U. S. 153, 486 U. S. 159 (1988). Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. "[A] defendant may not insist on representation by an attorney he cannot afford." Wheat, supra, at 486 U. S. 159. Petitioner does not dispute these propositions. Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without Page 491 U. S. 625 funds. Applying these principles to the statute in question here, we observe that nothing in § 853 prevents a defendant from hiring the attorney of his choice or disqualifies any attorney from serving as a defendant's counsel. Thus, unlike Wheat, this case does not involve a situation where the Government has asked a court to prevent a defendant's chosen counsel from representing the accused. Instead, petitioner urges that a violation of the Sixth Amendment arises here because of the forfeiture, at the instance of the Government, of assets that defendants intend to use to pay their attorneys.Even in this sense, of course, the burden the forfeiture law imposes on a criminal defendant is limited. The forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who possesses nothing but assets the Government seeks to have forfeited will be prevented from retaining counsel of choice. Defendants like Reckmeyer may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future. The burden placed on defendants by the forfeiture law is therefore a limited one.Nonetheless, there will be cases where a defendant will be unable to retain the attorney of his choice, when that defendant would have been able to hire that lawyer if he had access to forfeitable assets and if there was no risk that fees paid by the defendant to his counsel would later be recouped under § 853(c). [Footnote 4] It is in these cases, petitioner argues, that the Sixth Amendment puts limits on the forfeiture statute. Page 491 U. S. 626This submission is untenable. Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond "the individual's right to spend his own money to obtain the advice and assistance of . . . counsel." Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 473 U. S. 370 (1985) (STEVENS, J., dissenting). A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. A robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense."[N]o lawyer, in any case, . . . has the right to . . . accept stolen property, or . . . ransom money, in payment of a fee. . . . The privilege to practice law is not a license to steal."Laska v. United States, 82 F.2d 672, 677 (CA10 1936). Petitioner appears to concede as much, see Brief for Petitioner 40, n. 25, as respondent in Monsanto clearly does, see Brief for Respondent in No. 88-454, pp. 36-37.Petitioner seeks to distinguish such cases for Sixth Amendment purposes by arguing that the bank's claim to robbery proceeds rests on "preexisting property rights," while the Government's claim to forfeitable assets rests on a "penal statute" which embodies the "fictive property law concept of . . . relation back," and is merely "a mechanism for preventing fraudulent conveyances of the defendant's assets, not . . . a device for determining true title to property." Brief for Petitioner 40-41. In light of this, petitioner contends, the burden placed on defendant's Sixth Amendment rights by the forfeiture statute outweighs the Government's interest in forfeiture. Ibid. Page 491 U. S. 627The premises of petitioner's constitutional analysis are unsound in several respects. First, the property rights given the Government by virtue of the forfeiture statute are more substantial than petitioner acknowledges. In § 853(c), the so-called "relation-back" provision, Congress dictated that "[a]ll right, title and interest in property" obtained by criminals via the illicit means described in the statute "vests in the United States upon the commission of the act giving rise to forfeiture." 21 U.S.C. § 853(c) (1982 ed., Supp. V). As Congress observed when the provision was adopted, this approach, known as the "taint theory," is one that "has long been recognized in forfeiture cases," including the decision in United States v. Stowell, 133 U. S. 1 (1890). See S.Rep. No. 98-225, p. 200, and n. 27 (1983). In Stowell, the Court explained the operation of a similar forfeiture provision (for violations of the Internal Revenue Code) as follows:"As soon as [the possessor of the forfeitable asset committed the violation] of the internal revenue laws, the forfeiture under those laws took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all the right, title and interest then remaining in the [possessor], and was as valid and effectual against all the world as a recorded deed. The right so vested in the United States could not be defeated or impaired by any subsequent dealings of the . . . [possessor]."Stowell, supra, at 133 U. S. 19. In sum, § 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets in the United States at the time of the criminal act giving rise to forfeiture. Concluding that Reckmeyer cannot give good title to such property to petitioner because he did not hold good title is neither extraordinary or novel. Nor does petitioner claim, as a general proposition that the relation-back provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in Page 491 U. S. 628 the Government as of the date of the criminal act in question. Petitioner's claim is that whatever part of the assets that is necessary to pay attorney's fees cannot be subjected to forfeiture. But given the Government's title to Reckmeyer's assets upon conviction, to hold that the Sixth Amendment creates some right in Reckmeyer to alienate such assets, or creates a right on petitioner's part to receive these assets, would be peculiar.There is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right. While petitioner and its supporting amici attempt to distinguish between the expenditure of forfeitable assets to exercise one's Sixth Amendment rights and expenditures in the pursuit of other constitutionally protected freedoms, see, e.g., Brief for American Bar Association as Amicus Curiae 6, there is no such distinction between, or hierarchy among, constitutional rights. If defendants have a right to spend forfeitable assets on attorney's fees, why not on exercises of the right to speak, practice one's religion, or travel? The full exercise of these rights, too, depends in part on one's financial wherewithal, and forfeiture, or even the threat of forfeiture, may similarly prevent a defendant from enjoying these rights as fully as he might otherwise. Nonetheless, we are not about to recognize an antiforfeiture exception for the exercise of each such right, nor does one exist for the exercise of Sixth Amendment rights. [Footnote 5] Page 491 U. S. 629Petitioner's "balancing analysis" to the contrary rests substantially on the view that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. Petitioner takes the position that, in large part, once assets have been paid over from client to attorney, the principal ends of forfeiture have been achieved: dispossessing a drug dealer or racketeer of the proceeds of his wrongdoing. See Brief for Petitioner 39; see also 814 F.2d at 924-925. We think that this view misses the mark for three reasons.First, the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law enforcement efforts in a variety of important and useful ways. See 28 U.S.C. § 524(c), which establishes the Department of Justice Assets Forfeiture Fund. The sums of money that can be raised for law enforcement activities this way are substantial, [Footnote 6] and the Government's interest in using the profits of crime to fund these activities should not be discounted.Second, the statute permits "rightful owners" of forfeited assets to make claims for forfeited assets before they are retained by the Government. See 21 U.S.C. § 853(n)(6)(A). The Government's interest in winning undiminished forfeiture thus includes the objective of returning property in full to those wrongfully deprived or defrauded of it. Where the Government pursues this restitutionary end, the Government's interest in forfeiture is virtually indistinguishable from its interest in returning to a bank the proceeds of a bank robbery, and a forfeiture defendant's claim of right to use Page 491 U. S. 630 such assets to hire an attorney, instead of having them returned to their rightful owners, is no more persuasive than a bank robber's similar claim.Finally, as we have recognized previously, a major purpose motivating congressional adoption and continued refinement of the racketeer influenced and corrupt organizations (RICO) and CCE forfeiture provisions has been the desire to lessen the economic power of organized crime and drug enterprises. See Russello v. United States, 464 U. S. 16, 464 U. S. 27-28 (1983). This includes the use of such economic power to retain private counsel. As the Court of Appeals put it:"Congress has already underscored the compelling public interest in stripping criminals such as Reckmeyer of their undeserved economic power, and part of that undeserved power may be the ability to command high-priced legal talent."837 F.2d at 649. The notion that the Government has a legitimate interest in depriving criminals of economic power, even insofar as that power is used to retain counsel of choice, may be somewhat unsettling. See, e.g., Tr. of Oral Arg. 50-52. But when a defendant claims that he has suffered some substantial impairment of his Sixth Amendment rights by virtue of the seizure or forfeiture of assets in his possession, such a complaint is no more than the reflection of"the harsh reality that the quality of a criminal defendant's representation frequently may turn on his ability to retain the best counsel money can buy."Morris v. Slappy, 461 U. S. 1, 461 U. S. 23 (1983) (BRENNAN, J., concurring in result). Again, the Court of Appeals put it aptly:"The modern day Jean Valjean must be satisfied with appointed counsel. Yet the drug merchant claims that his possession of huge sums of money . . . entitles him to something more. We reject this contention, and any notion of a constitutional right to use the proceeds of crime to finance an expensive defense."837 F.2d at 649. [Footnote 7] Page 491 U. S. 631It is our view that there is a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense. Otherwise, there would be an interference with a defendant's Sixth Amendment rights whenever the Government freezes or takes some property in a defendant's possession before, during, or after a criminal trial. So-called "jeopardy assessments" -- Internal Revenue Service (IRS) seizures of assets to secure potential tax liabilities, see 26 U.S.C. § 6861 -- may impair a defendant's ability to retain counsel in a way similar to that complained of here. Yet these assessments have been upheld against constitutional attack, [Footnote 8] and we note that the respondent in Monsanto concedes their constitutionality, see Brief for Respondent in No. 88-454, p. 37, n. 20. Moreover, petitioner's claim to a share of the forfeited assets postconviction would suggest that the Government could never impose a burden on assets within a defendant's control that could be used to pay a lawyer. [Footnote 9] Criminal defendants, however, are not exempted Page 491 U. S. 632 from federal, state, and local taxation simply because these financial levies may deprive them of resources that could be used to hire an attorney.We therefore reject petitioner's claim of a Sixth Amendment right of criminal defendants to use assets that are the Government's -- assets adjudged forfeitable, as Reckmeyer's were -- to pay attorney's fees, merely because those assets are in their possession. [Footnote 10] See also Monsanto, ante at 491 U. S. 613, Page 491 U. S. 633 which rejects a similar claim with respect to pretrial orders and assets not yet judged forfeitable.BPetitioner's second constitutional claim is that the forfeiture statute is invalid under the Due Process Clause of the Fifth Amendment because it permits the Government to upset the "balance of forces between the accused and his accuser." Wardius v. Oregon, 412 U. S. 470, 412 U. S. 474 (1973). We are not sure that this contention adds anything to petitioner's Sixth Amendment claim, because, while"[t]he Constitution guarantees a fair trial through the Due Process Clauses . . . it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment,"Strickland v. Washington, 466 U. S. 668, 466 U. S. 684-685 (1984). We have concluded above that the Sixth Amendment is not offended by the forfeiture provisions at issue here. Even if, however, the Fifth Amendment provides some added protection not encompassed in the Sixth Amendment's more specific provisions, we find petitioner's claim based on the Fifth Amendment unavailing. Page 491 U. S. 634Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly. But due process claims alleging such abuses are cognizable only in specific cases of prosecutorial misconduct (and petitioner has made no such allegation here) or when directed to a rule that is inherently unconstitutional."The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it . . . invalid,"United States v. Salerno, 481 U. S. 739, 481 U. S. 745 (1987). Petitioner's claim -- that the power available to prosecutors under the statute could be abused -- proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons. As the Court of Appeals put it, in rejecting this claim when advanced below: "Every criminal law carries with it the potential for abuse, but a potential for abuse does not require a finding of facial invalidity." 837 F.2d at 648.We rejected a claim similar to petitioner's last Term, in Wheat v. United States, 486 U. S. 153 (1988). In Wheat, the petitioner argued that permitting a court to disqualify a defendant's chosen counsel because of conflicts of interest -- over that defendant's objection to the disqualification -- would encourage the Government to "manufacture" such conflicts to deprive a defendant of his chosen attorney. Id. at 486 U. S. 163. While acknowledging that this was possible, we declined to fashion the per se constitutional rule petitioner sought in Wheat, instead observing that "trial courts are undoubtedly aware of [the] possibility" of abuse, and would have to "take it into consideration" when dealing with disqualification motions.A similar approach should be taken here. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e.g., by attempting to impose them on persons who should not be subjected to that punishment. Cf. 397 U. S. Page 491 U. S. 635 United States, 397 U. S. 742, 397 U. S. 751, and n. 8 (1970). Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.IVFor the reasons given above, we find that petitioner's statutory and constitutional challenges to the forfeiture imposed here are without merit. The judgment of the Court of Appeals is thereforeAffirmed

U.S. Supreme CourtCaplin & Drysdale v. United States, 491 U.S. 617 (1989)Caplin & Drysdale, Chartered v. United StatesNo. 87-1729Argued March 21, 1989Decided June 22, 1989491 U.S. 617SyllabusChristopher Reckmeyer was charged with running a massive drug importation and distribution scheme alleged to be a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. Relying on a portion of the CCE statute that authorizes forfeiture to the Government of property acquired as a result of drug law violations, § 853, the indictment sought forfeiture of specified assets in Reckmeyer's possession. The District Court, acting pursuant to § 853(e)(1)(A), entered a restraining order forbidding Reckmeyer from transferring any of the potentially forfeitable assets. Nonetheless, he transferred $25,000 to petitioner, a law firm, for preindictment legal services. Petitioner continued to represent Reckmeyer after his indictment. Reckmeyer moved to modify the District Court's order to permit him to use some of the restrained assets to pay petitioner's fees and to exempt such assets from postconviction forfeiture. However, before the court ruled on his motion, Reckmeyer entered a plea agreement with the Government in which, inter alia, he agreed to forfeit all of the specified assets. The court then denied Reckmeyer's motion and, subsequently, entered an order forfeiting virtually all of his assets to the Government. Petitioner -- arguing that assets used to pay an attorney are exempt from forfeiture under § 853 and, if they are not, that the statute's failure to provide such an exemption renders it unconstitutional -- filed a petition under § 853(n) seeking an adjudication of its third-party interest in the forfeited assets. The District Court granted the relief sought. However, the Court of Appeals reversed, finding that the statute acknowledged no exception to its forfeiture requirement, and that the statutory scheme is constitutional.Held:1. For the reasons stated in United States v. Monsanto, ante, at 491 U. S. 611-614, whatever discretion § 853(e) does provide district court judges to refuse to issue pretrial restraining orders on potentially forfeitable assets, it does not grant them equitable discretion to allow a defendant to withhold assets to pay bona fide attorney's fees. Nor does the exercise of judges' § 853(e) discretion "immunize" nonrestrained assets used for attorney's fees from subsequent forfeiture under § 853(c), which provides for recapture of forfeitable assets transferred to third parties. Pp. 491 U. S. 622-623. Page 491 U. S. 6182. The forfeiture statute does not impermissibly burden a defendant's Sixth Amendment right to retain counsel of his choice. A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. Such money, though in his possession, is not rightfully his. Petitioner's contention that, since the Government's claim to forfeitable assets rests on a penal statute that is merely a mechanism for preventing fraudulent conveyances of the assets, and is not a device for determining true title to property, the burden the statute places on a defendant's rights greatly outweighs the Government's interest in forfeiture is unsound. Section 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets in the hands of the Government at the time of the criminal act giving rise to forfeiture. Moreover, there is a strong governmental interest in obtaining full recovery of the assets, since the assets are deposited in a fund that supports law enforcement efforts, since the statute allows property to be recovered by its rightful owners, and since a major purpose behind forfeiture provisions such as the CCE's is to lessen the economic power of organized crime and drug enterprises, including the use of such power to retain private counsel. Pp. 491 U. S. 624-633.3. The forfeiture statute does not upset the balance of power between the Government and the accused in a manner contrary to the Due Process Clause of the Fifth Amendment. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because, in some cases, prosecutors may abuse the processes available to them. Such due process claims are cognizable only in specific cases of prosecutorial misconduct, which has not been alleged here. Pp. 491 U. S. 633-635.837 F.2d 637, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 491 U.S. 635. Page 491 U. S. 619

1992_91-261

220 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.Maurice Baskin argued the cause for respondents. With him on the briefs was Carol Chandler.tJUSTICE BLACKMUN delivered the opinion of the Court. The issue in this litigation is whether the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., pre-empts enforcement by a state authority, acting as the owner of a construction project, of an otherwise lawful prehire collective-bargaining agreement negotiated by private parties.IThe Massachusetts Water Resources Authority (MWRA) is an independent government agency charged by the Massachusetts Legislature with providing water-supply services, sewage collection, and treatment and disposal services for the eastern half of Massachusetts. Mass. Gen. Laws Ann., ch. 92 App., § 1-1 et seq. (1993). Following a lawsuit arising out of its failure to prevent the pollution of Boston Harbor, in alleged violation of the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq.,tBriefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Douglas H. Wilkins, Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, and Frank J. Kelley, Attorney General of Michigan; for Mayor Raymond L. Flynn by Albert W Wallis; and for the National Constructors Association et al. by Robert W Kopp and John Gaal.Briefs of amici curiae urging affirmance were filed for the Associated General Contractors of America by Glen D. Nager, Richard F. Shaw, and Michael E. Kennedy; for the Chamber of Commerce of the United States of America by Clifton S. Elgarten, Stephen A. Bokat, Robin S. Conrad, and Mona C. Zeiberg; for Master Printers of America by Francis T. Coleman and William B. Cowen; for the Merit Shop Foundation et al. by Bruce J. Ennis, Jr.; for the National Right to Work Legal Defense Foundation, Inc., by Hugh L. Reilly, W James Young, and Edwin Vieira, Jr.; and for the Utility Contractors Association of New England, Inc., et al. by Stephen S. Ostrach and Richard D. Wayne.221MWRA was ordered to clean up the harbor. See United States v. Metropolitan Dist. Comm'n, 757 F. Supp. 121, 123 (Mass. 1991). The cleanup project was expected to cost $6.1 billion over 10 years. 935 F.2d 345, 347 (CA1 1991). The District Court required construction to proceed without interruption, making no allowance for delays from causes such as labor disputes. App. 71 (Affidavit of Richard D. Fox, Director of the Program Management Division of MWRA). MWRA has primary responsibility for the project. Under its enabling statute and the Commonwealth's public-bidding laws, MWRA provides the funds for construction (assisted by state and federal grants), owns the sewage-treatment facilities to be built, establishes all bid conditions, decides all contract awards, pays the contractors, and generally supervises the project. See 935 F. 2d, at 347 (citing Mass. Gen. Laws Ann., ch. 92 App., § 1-1 et seq. (1993). Mass. Gen. Laws §§ 149:44A to 149:441, and 30:39M (1990)).In the spring of 1988, MWRA selected Kaiser Engineers, Inc., as its project manager. Kaiser was to be primarily in charge of managing and supervising construction activity. Kaiser also was to advise MWRA on the development of a labor-relations policy that would maintain worksite harmony, labor-management peace, and overall stability throughout the duration of the project. To that end, Kaiser suggested to MWRA that Kaiser be permitted to negotiate an agreement with the Building and Construction Trades Council and affiliated organizations (BCTC) that would assure labor stability over the life of the project. App. to Pet. for Cert. in No. 91-274, p. 75a (MWRA Pet. App.). MWRA accepted Kaiser's suggestion, and Kaiser accordingly proceeded to negotiate the Boston Harbor Wastewater Treatment Facilities Project Labor Agreement (Agreement). Ibid. The Agreement included: recognition of BCTC as the exclusive bargaining agent for all craft employees; use of specified methods for resolving all labor-related disputes; a requirement that all employees be subject to union-security provi-222222 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.sions compelling them to become union members within seven days of their employment; the primary use of BCTC's hiring halls to supply the project's craft labor force; a 10year no-strike commitment; and a requirement that all contractors and subcontractors agree to be bound by the Agreement. 935 F. 2d, at 348. See generally MWRA Pet. App. 107a (full text of Agreement). MWRA's board of directors approved and adopted the Agreement in May 1989 and directed that Bid Specification 13.1 be incorporated into its solicitation of bids for work on the project.1 935 F. 2d, at 347. Bid Specification 13.1 provides in pertinent part:"[E]ach successful bidder and any and all levels of subcontractors, as a condition of being awarded a contract or subcontract, will agree to abide by the provisions of the Boston Harbor Wastewater Treatment Facilities Project Labor Agreement as executed and effective May 22, 1989, by and between Kaiser ... on behalf of [MWRA] and [BCTC] ... and will be bound by the provisions of that agreement in the same manner as any other provision of the contract." MWRA Pet. App. 141a-142a.In March 1990, a contractors' association not a party to this litigation filed a charge with the National Labor Relations Board (NLRB) contending that the Agreement violated the NLRA. The NLRB General Counsel refused to issue a complaint, finding: (1) that the Agreement is a valid prehire agreement under § 8(f) of the NLRA, 29 U. S. C. § 158(f), which authorizes such agreements in the construction indus-1 Massachusetts competitive-bidding laws require MWRA to state its preference for a contract term, such as a project labor agreement, in the form of a bid specification. These laws, which MWRA's Enabling Act explicitly incorporates, see Mass. Gen. Laws Ann., ch. 92 App., § 1-8(g) (1993) (incorporating Mass. Gen. Laws §§ 30:39M, and 149:44A to 149:44H), require that the competitive-bidding process be carried out by the awarding authority. See Modern Continental Constr. Co. v. Lowell, 391 Mass. 829, 836,465 N. E. 2d 1173, 1177-1178 (1984).223try; and (2) that the Agreement's provisions limiting work on the project to contractors who agree to abide by the Agreement are lawful under the construction-industry proviso to §8(e), 29 U. S. C. § 158(e). This proviso sets forth an exception from § 8(e)'s prohibition against "hot cargo" agreements that require an employer to refrain from doing business with any person not agreeing to be bound by a prehire agreement. Building & Trades Council (Kaiser Engineers, Inc.), Case 1-CE-71, NLRB Advice Memo, June 25, 1990, MWRA Pet. App. 88a.Also in March 1990, respondent Associated Builders and Contractors of Massachusetts/Rhode Island, Inc. (ABC), an organization representing nonunion construction-industry employers, brought this suit against MWRA, Kaiser, and BCTC, seeking, among other things, to enjoin enforcement of Bid Specification 13.1. ABC alleged pre-emption under the NLRA, pre-emption under § 514(c) of the Employee Retirement Income Security Act of 1974, 88 Stat. 897, 29 U. S. C. § 1144(c) (ERISA), violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, conspiracy to reduce competition in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and various state-law claims. Only NLRA pre-emption is at issue here.The United States District Court for the District of Massachusetts rejected each of ABC's claims and denied its motion for a preliminary injunction. MWRA Pet. App. 76a-83a. The Court of Appeals for the First Circuit reversed and directed entry of a preliminary injunction restraining the use of Bid Specification 13.1, reaching only the issue of NLRA pre-emption. 135 LRRM 2713 (1990). The Court of Appeals subsequently granted a petition for rehearing en bane, vacating the panel opinion. MWRA Pet. App. 84a. Upon rehearing en bane, the Court of Appeals, by a 3-to-2 vote, again reversed the judgment of the District Court, once more reaching only the pre-emption issue. 935 F. 2d, at 359-360. The court held that MWRA's intrusion into the224224 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.bargaining process was pervasive and not the sort of peripheral regulation that would be permissible under San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). See 935 F. 2d, at 353. It also held that Bid Specification 13.1 was pre-empted under Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 (1976), because MWRA was regulating activities that Congress intended to be unrestricted by governmental power. Because of the importance of the issue, we granted certiorari, 504 U. S. 908 (1992).IIThe NLRA contains no express pre-emption provision.Therefore, in accordance with settled pre-emption principles, we should not find MWRA's bid specification pre-empted " , "unless it conflicts with federal law or would frustrate the federal scheme, or unless [we] discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States."'" Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 747-748 (1985) (citations omitted). We are reluctant to infer pre-emption. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). "Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U. S. 725, 746 (1981). With these general principles in mind, we turn to the particular pre-emption doctrines that have developed around the NLRA.In Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 748, we noted: "The Court has articulated two distinct NLRA pre-emption principles." The first, "Garmon preemption," see San Diego Building Trades Council v. Garmon, supra, forbids state and local regulation of activities that are "protected by § 7 of the [NLRA], or constitute an unfair labor practice under § 8." 359 U. S., at 244. See also Garner v. Teamsters, 346 U. S. 485, 498-499 (1953) ("[W]hen225two separate remedies are brought to bear on the same activity, a conflict is imminent"). Garmon pre-emption prohibits regulation even of activities that the NLRA only arguably protects or prohibits. See Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 286 (1986). This rule of pre-emption is designed to prevent conflict between, on the one hand, state and local regulation and, on the other, Congress' "integrated scheme of regulation," Garmon, 359 U. S., at 247, embodied in §§ 7 and 8 of the NLRA, which includes the choice of the NLRB, rather than state or federal courts, as the appropriate body to implement the Act. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 748-749, and n. 26.In Garmon, this Court held that a state court was precluded from awarding damages to employers for economic injuries resulting from peaceful picketing by labor unions that had not been selected by a majority of employees as their bargaining agent. 359 U. S., at 246. The Court said:"Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered." Ibid. In Gould, we held that the NLRA pre-empts a statute that disqualifies from doing business with the State persons who have violated the NLRA three times within a 5-year period. We emphasized there that "the Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." 475 U. S., at 286 (citing 359 U. S., at 247).A second pre-emption principle, "Machinists preemption," see Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S., at 147, prohibits state and municipal regulation of areas that have been left" 'to be controlled by the free play of economic forces.'" Id., at 140 (citation omitted). See also Golden State Transit Corp. v. Los226226 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.Angeles, 475 U. S. 608, 614 (1986) (Golden State 1); Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 111 (1989) (Golden State II). Machinists pre-emption preserves Congress' "intentional balance '''between the uncontrolled power of management and labor to further their respective interests." ", Golden State I, 475 U. S., at 614 (citations omitted).In Machinists, we held that the Wisconsin Employment Relations Commission could not designate as an unfair labor practice under state law a concerted refusal by a union and its members to work overtime, because Congress did not mean such self-help activity to be regulable by the States. 427 U. S., at 148-150. We said that it would frustrate Congress' intent to "sanction state regulation of such economic pressure deemed by the federal Act 'desirabl[y] ... left for the free play of contending economic forces ... " Id., at150 (citation omitted). In Golden State I, we applied the Machinists doctrine to hold that the city of Los Angeles was pre-empted from conditioning renewal of a taxicab operating license upon the settlement of a labor dispute. 475 U. S., at 618. We reiterated the principle that a "local government ... lacks the authority to '''introduce some standard of properly 'balanced' bargaining power" ... or to define "what economic sanctions might be permitted negotiating parties in an 'ideal' or 'balanced' state of collective bargaining."'" Id., at 619 (quoting Machinists, 427 U. S., at 149-150) (internal citation omitted). In Golden State II, supra, we determined that the taxicab employer who was challenging the city's conduct in Golden State I was entitled to maintain an action under 42 U. S. C. § 1983 for compensatory damages against the city. In so holding, we stated that the Machinists rule created a zone free from all regulations, whether state or federal. 493 U. S., at 112.IIIWhen we say that the NLRA pre-empts state law, we mean that the NLRA prevents a State from regulating227within a protected zone, whether it be a zone protected and reserved for market freedom, see Machinists, or for NLRB jurisdiction, see Garmon. A State does not regulate, however, simply by acting within one of these protected areas. When a State owns and manages property, for example, it must interact with private participants in the marketplace. In so doing, the State is not subject to pre-emption by the NLRA, because pre-emption doctrines apply only to state regulation.Our decisions in this area support the distinction between government as regulator and government as proprietor. We have held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor. In Machinists, for example, we referred to Congress' pre-emptive intent to "leave some activities unregulated," 427 U. S., at 144 (emphasis added), and held that the activities at issue-workers deciding together to refuse overtime work-were not "regulable by States," id., at 149 (emphasis added). In Golden State I, we held that the reason Los Angeles could not condition renewal of a taxicab franchise upon settlement of a labor dispute was that "Machinists pre-emption ... precludes state and municipal regulation 'concerning conduct that Congress intended to be unregulated.'" 475 U. S., at 614 (emphasis added) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 749). We refused to permit the city's exercise of its regulatory power of license nonrenewal to restrict Golden State's right to use lawful economic weapons in its dispute with its union. See 475 U. S., at 615-619. As petitioners point out, a very different case would have been presented had the city of Los Angeles purchased taxi services from Golden State in order to transport city employees. Brief for Petitioners 35. In that situation, if the strike had produced serious interruptions in the services the city had purchased, the city would not necessarily have been pre-empted from advising Golden State that it would hire another company if228228 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.the labor dispute were not resolved and services resumed by a specific deadline.In Gould, we rejected the argument that the State was acting as proprietor rather than regulator for purposes of Garmon pre-emption when the State refused to do business with persons who had violated the NLRA three times within five years. We noted in doing so that in that case, "debarment ... serves plainly as a means of enforcing the NLRA." 475 U. S., at 287. We said there that "[t]he State concedes, as we think it must, that the point of the statute is to deter labor law violations"; we concluded that "[n]o other purpose could credibly be ascribed." Ibid.Respondents quote the following passage from Gould, arguing that it stands for the proposition that the State as proprietor is subject to the same pre-emption limitations as the State as regulator:"Nothing in the NLRA, of course, prevents private purchasers from boycotting labor law violators. But government occupies a unique position of power in our society, and its conduct, regardless of form, is rightly subject to special restraints. Outside the area of Commerce Clause jurisprudence, it is far from unusual for federal law to prohibit States from making spending decisions in ways that are permissible for private parties .... The NLRA, moreover, has long been understood to protect a range of conduct against state but not private interference .... The Act treats state action differently from private action not merely because they frequently take different forms, but also because in our system States simply are different from private parties and have a different role to play." Id., at 290.The above passage does not bear the weight that respondents would have it support. The conduct at issue in Gould was a state agency's attempt to compel conformity with the NLRA. Because the statute at issue in Gould addressed229employer conduct unrelated to the employer's performance of contractual obligations to the State, and because the State's reason for such conduct was to deter NLRA violations, we concluded: "Wisconsin 'simply is not functioning as a private purchaser of services,' ... [and therefore,] for all practical purposes, Wisconsin's debarment scheme is tantamount to regulation." Id., at 289. We emphasized that we were "not say[ing] that state purchasing decisions may never be influenced by labor considerations." Id., at 291.The conceptual distinction between regulator and purchaser exists to a limited extent in the private sphere as well. A private actor, for example, can participate in a boycott of a supplier on the basis of a labor policy concern rather than a profit motive. See id., at 290. The private actor under such circumstances would be attempting to "regulate" the suppliers and would not be acting as a typical proprietor. The fact that a private actor may "regulate" does not mean, of course, that the private actor may be "pre-empted" by the NLRA; the Supremacy Clause does not require pre-emption of private conduct. Private actors therefore may "regulate" as they please, as long as their conduct does not violate the law. As the above passage in Gould makes clear, however, States have a qualitatively different role to play from private parties. Ibid. When the State acts as regulator, it performs a role that is characteristically a governmental rather than a private role, boycotts notwithstanding. Moreover, as regulator of private conduct, the State is more powerful than private parties. These distinctions are far less significant when the State acts as a market participant with no interest in setting policy.In Gould, we did not address fully the implications of these distinctions. We left open the question whether a State may act without offending the pre-emption principles of the NLRA when it acts as a proprietor and its acts therefore are not "tantamount to regulation" or policymaking. As ex-230230 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.plained more fully below, we now answer this question in the affirmative.IVPermitting the States to participate freely in the marketplace is not only consistent with NLRA pre-emption principles generally but also, in these cases, promotes the legislative goals that animated the passage of the §§ 8(e) and (f) exceptions for the construction industry. In 1959, Congress amended the NLRA to add §8(f) and modify §8(e). Section 8(f) explicitly permits employers in the construction industry-but no other employers-to enter into prehire agreements. Prehire agreements are collective-bargaining agreements providing for union recognition, compulsory union dues or equivalents, and mandatory use of union hiring halls, prior to the hiring of any employees. 935 F. 2d, at 356; Jim McNeff, Inc. v. Todd, 461 U. S. 260, 265-266 (1983). The 1959 amendment adding a proviso to subsection (e) permits a general contractor's prehire agreement to require an employer not to hire other contractors performing work on that particular project site unless they agree to become bound by the terms of that labor agreement. See Woelke & Romero Framing, Inc. v. NLRB, 456 U. S. 645, 657 (1982). Section 8(f) contains a final proviso that permits employees, once hired, to utilize the NLRB election process under §§ 9(c) and (e) of the Act, 29 U. S. C. §§ 159(c) and (e), if they wish to reject the bargaining representative or to cancel the union security provisions of the prehire agreement. See NLRB v. Iron Workers, 434 U. S. 335, 345 (1978).It is undisputed that the Agreement between Kaiser and BCTC is a valid labor contract under §§ 8(e) and (f). As noted above, those sections explicitly authorize this type of contract between a union and an employer like Kaiser, which is engaged primarily in the construction industry, covering employees engaged in that industry.Of course, the exceptions provided for the construction industry in §§8(e) and (f), like the prohibitions from which231they provide relief, are not made specifically applicable to the State. This is because the State is excluded from the definition of the term "employer" under the NLRA, see 29 U. S. C. § 152(2), and because the State, in any event, is acting not as an employer but as a purchaser in this case. Nevertheless, the general goals behind passage of §§ 8(e) and (f) are still relevant to determining what Congress intended with respect to the State and its relationship to the agreements authorized by these sections.It is evident from the face of the statute that in enacting exemptions authorizing certain kinds of project labor agreements in the construction industry, Congress intended to accommodate conditions specific to that industry. Such conditions include, among others, the short-term nature of employment which makes posthire collective bargaining difficult, the contractor's need for predictable costs and a steady supply of skilled labor, and a longstanding custom of prehire bargaining in the industry. See S. Rep. No. 187, 86th Cong., 1st Sess., 28, 55-56 (1959); H. R. Rep. No. 741, 86th Cong., 1st Sess., 19-20 (1959).There is no reason to expect these defining features of the construction industry to depend upon the public or private nature of the entity purchasing contracting services. To the extent that a private purchaser may choose a contractor based upon that contractor's willingness to enter into a prehire agreement, a public entity as purchaser should be permitted to do the same. Confronted with such a purchaser, those contractors who do not normally enter such agreements are faced with a choice. They may alter their usual mode of operation to secure the business opportunity at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement. In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a232232 BUILDING & CONSTR. TRADES COUNCIL v. ASSOCIATED BUILDERS & CONTRACTORS OF MASS.lR. 1., INC.restriction. See, e. g., Maryland v. Louisiana, 451 U. S., at 746 ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law").2 Indeed, there is some force to petitioners' argument, Brief for Petitioners 25, that denying an option to public owner-developers that is available to private ownerdevelopers itself places a restriction on Congress' intended free play of economic forces identified in Machinists.vIn the instant case, MWRA acted on the advice of a manager hired to organize performance of a cleanup job over which, under Massachusetts law, MWRA is the proprietor. There is no question but that MWRA was attempting to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost. As petitioners note, moreover, Brief for Petitioners 26, the challenged action in this litigation was specifically tailored to one particular job, the Boston Harbor cleanup project. There is therefore no basis on which to distinguish the incentives at work here from those that operate elsewhere in the construction industry, incentives that this Court has recognized as legitimate. See Woelke & Romero Framing Co. v. NLRB, 456 U. S., at 662, and n. 14.We hold today that Bid Specification 13.1 is not government regulation and that it is therefore subject to neither Garmon nor Machinists pre-emption. Bid Specification 13.1 constitutes proprietary conduct on the part of the Commonwealth of Massachusetts, which legally has enforced a valid project labor agreement. As Chief Judge Breyer aptly2 Respondents suggest in their brief, Brief for Respondents 22, n. 12, that under H. K. Porter Co. v. NLRB, 397 U. S. 99, 103 (1970), § Sed) of the NLRA expressly prohibits the conduct of MWRA at issue in this case. The Court of Appeals did not rely on this section of the statute, nor did we grant certiorari on this question. We therefore decline the invitation to address the application, if any, of § Sed) to Bid Specification 13.1.233noted in his dissent in the Court of Appeals, "when the MWRA, acting in the role of purchaser of construction services, acts just like a private contractor would act, and conditions its purchasing upon the very sort of labor agreement that Congress explicitly authorized and expected frequently to find, it does not 'regulate' the workings of the market forces that Congress expected to find; it exemplifies them." 935 F. 2d, at 361.Because we find that Bid Specification 13.1 is not preempted by the NLRA, it follows that a preliminary injunction against enforcement of this bid specification was improper. We therefore reverse the judgment of the Court of Appeals and remand these cases for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1992SyllabusBUILDING & CONSTRUCTION TRADES COUNCIL OF THE METROPOLITAN DISTRICT v. ASSOCIATED BUILDERS & CONTRACTORS OF MASSACHUSETTS/RHODE ISLAND, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo.91-261. Argued December 9, 1992-Decided March 8,1993*Following a lawsuit over its failure to prevent the pollution of Boston Harbor, petitioner Massachusetts Water Resources Authority (MWRA)-the state agency that provides, inter alia, sewage services for eastern Massachusetts-was ordered to clean up the harbor. Under state law, MWRA provides the funds for construction, owns the sewagetreatment facilities to be built, establishes all bid conditions, decides all contract awards, pays the contractors, and generally supervises the project. Petitioner Kaiser Engineers, Inc., the project manager selected by MWRA, negotiated an agreement with petitioner Building and Construction Trades Council and affiliated organizations (BCTC) that would assure labor stability over the life of the project, and MWRA directed in Specification 13.1 of its solicitation for project bids that each successful bidder must agree to abide by the labor agreement's terms. Respondent organization, which represents nonunion construction industry employers, filed suit against petitioners, seeking, among other things, to enjoin enforcement of Bid Specification 13.1 on the grounds that it is pre-empted under the National Labor Relations Act (NLRA). The District Court denied the organization's motion for a preliminary injunction, but the Court of Appeals reversed, holding that MWRA's intrusion into the bargaining process was pervasive and not the sort of peripheral regulation that would be permissible under San Diego Building Trades Council v. Garmon, 359 U. S. 236, and that Bid Specification 13.1 was pre-empted under Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132, because MWRA was regulating activities that Congress intended to be unrestricted by governmental power.Held: The NLRA does not pre-empt enforcement by a state authority, acting as the owner of a construction project, of an otherwise lawful*Together with No. 91-274, Massachusetts Water Resources Authority et al. v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., et al., also on certiorari to the same court.219prehire collective-bargaining agreement negotiated by private parties. This Court has articulated two distinct NLRA pre-emption principles:"Garmon pre-emption" forbids state and local regulation of activities that are protected by § 7 of the NLRA or constitute an unfair labor practice under § 8, while "Machinists pre-emption" prohibits state and municipal regulation of areas that have been left to be controlled by the free play of economic forces. These pre-emption doctrines apply only to state labor regulation, see, e. g., Machinists, 427 U. S., at 144. A State may act without offending them when it acts as a proprietor and its acts therefore are not tantamount to regulation or policymaking. Permitting States to participate freely in the marketplace is not only consistent with NLRA pre-emption principles generally but also, in this case, promotes the legislative goals that animated the passage of the NLRA's §§8(e) and (f) exceptions regarding prehire agreements in the construction industry. It is undisputed that the agreement between Kaiser and BCTC is a valid labor contract under §§8(e) and (f). In enacting the exceptions, Congress intended to accommodate conditions specific to the construction industry, and there is no reason to expect the industry's defining features to depend upon the public or private nature of the entity purchasing contracting services. Absent any express or implied indication by Congress that a State may not manage its own property when pursuing a purely proprietary interest such as MWRA's interest here, and where analogous private conduct would be permitted, this Court will not infer such a restriction. Pp. 224-233.935 F.2d 345, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court.Charles Fried argued the cause for petitioners. With him on the briefs were David L. Shapiro, John M. Stevens, Arthur G. Telegen, H. Reed Witherby, Mary R. Jeka, Steven H. Goldberg, William J. Curtin, E. Carl Uehlein, Jr., Laurence J. Cohen, Victoria L. Bor, Walter Kamiat, and Laurence Gold.Deputy Solicitor General Mahoney argued the cause for the United States as amicus curiae urging reversal. With her on the briefs were Solicitor General Starr, Edwin S. Kneedler, Jerry M. Hunter, Nicholas E. Karatinos, Norton J. Come, Linda Sher, and John Emad Arbab.220Full Text of Opinion

1979_78-5937

MR. JUSTICE STEWART delivered the opinion of the Court.An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. [Footnote 1] The question before us is whether the application of this statute to the facts of the present case violated the Fourth and Fourteenth Amendments.IOn March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a "Complaint for Search Warrant" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and:"3. The informant related . . . that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen Page 444 U. S. 88 to twenty-five tin-foil packets on the person of the bartender 'Greg' and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on 'Greg' and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin.""4. The informant advised . . . that over the weekend of 28 and 29 February he had a conversation with 'Greg' and was advised that 'Greg' would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described."On the strength of this complaint, the judge issued a warrant authorizing the search of"the following person or place: . . . [T]he Aurora Tap Tavern. . . . Also the person of 'Greg,' the bartender, a male white with blondish hair appx. 25 years."The warrant authorized the police to search for "evidence of the offense of possession of a controlled substance," to-wit,"[h]eroin, contraband, other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances."In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a "cursory search for weapons." One of the officers then proceeded to pat down each of the to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first pat-down of Ybarra, the officer felt what he described as "a cigarette pack with objects in it." He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to pat down other customers. Page 444 U. S. 89 After completing this process, the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra's pants pocket. Inside the pack, he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin.Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion, the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to "prevent the disposal or concealment of [the] things particularly described in the warrant." The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin.On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional "in its application to the facts" of this case. 58 Ill.App.3d 57, 64, 373 N.E.2d 1013, 1017. The court acknowledged that, had the warrant directed that a "large retail or commercial establishment" be searched, the statute could not constitutionally have been read to "authorize a blanket search' of persons or patrons found" therein. Id. at 62, 373 N.E.2d at 1016. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is"some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant."Id. at 61, 373 N.E.2d at 1016. Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been "conducted in a Page 444 U. S. 90 one-room bar where it [was] obvious from the complaint . . . that heroin was being sold or dispensed," id. at 62, 373 N.E.2d at 1016, because "the six packets of heroin . . could easily [have been] concealed by the defendant, and thus thwart the purpose of the warrant," id. at 61, 373 N.E.2d at 1016, and because Ybarra was not an "innocent strange[r] having no connection with the premises," ibid. The court, therefore, affirmed Ybarra's conviction, and the Illinois Supreme Court denied his petition for leave to appeal. There followed an appeal to this Court, and we noted probable jurisdiction. 440 U.S. 790.IIThere is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from "Greg," would be violating the law. [Footnote 2] The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from "Greg" or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern.Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the Page 444 U. S. 91 police did not recognize Ybarra, and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. [Footnote 3] But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U. S. 40, 392 U. S. 62-63. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the "legitimate expectations of privacy" of persons, not places. See Rakas v. Illinois, 439 U. S. 128, 439 U. S. 138-143, 439 U. S. 148-149; Katz v. United States, 389 U. S. 347, 389 U. S. 351-352.Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from Page 444 U. S. 92 the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by "Greg." Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search "Greg," it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers. [Footnote 4]Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first pat-down search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U. S. 1. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the pat-down yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently Page 444 U. S. 93 dangerous, a belief which this Court has invariably held must form the predicate to a pat-down of a person for weapons. [Footnote 5] Adams v. Williams, 407 U. S. 143, 407 U. S. 146; Terry v. Ohio, supra at 392 U. S. 21-24, 392 U. S. 27. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain." [Footnote 6] Under that doctrine, a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e.g., Adams v. Williams, supra, (at night, in high-crime district, lone police officer approached person believed by officer to possess gun and narcotics). Nothing in Terry can be understood to allow a generalized Page 444 U. S. 94 "cursory search for weapons" or, indeed, any search whatever for anything but weapons. The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.What has been said largely disposes of the State's second and alternative argument in this case. Emphasizing the important governmental interest "in effectively controlling traffic in dangerous, hard drugs" and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry "reasonable belief or suspicion" standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband."Over 30 years ago, the Court rejected a similar argument in United States v. Di Re, 332 U. S. 581, 332 U. S. 583-587. In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver's seat, another man (Di Re) in the passenger's seat, and the informant in the back. The informant told the investigator that the person in the driver's seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched. Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could Page 444 U. S. 95 lawfully have searched the car, since he had reasonable cause to believe that it contained contraband, and correspondingly could have searched any occupant of the car because the contraband sought was of the sort "which could easily be concealed on the person." [Footnote 7] Not deciding whether or not, under the Fourth Amendment, the car could have been searched, the Court held that it was "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." [Footnote 8]The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re, the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant. [Footnote 9] The State makes no such concession in this case. Yet the governing principle in both cases is basically the same, and we follow that principle today. The "long-prevailing" constitutional standard of probable cause embodies"'the best compromise that has been found for accommodating [the] often opposing interests' in 'safeguard[ing] citizens from rash and unreasonable interferences Page 444 U. S. 96 with privacy' and in 'seek[ing] to give fair leeway for enforcing he law in the community's protection.' [Footnote 10]"For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. [Footnote 11] Accordingly, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtYbarra v. Illinois, 444 U.S. 85 (1979)Ybarra v. IllinoisNo. 78-5937Argued October 9, 1979Decided November 28, 1979444 U.S. 85SyllabusOn the strength of a complaint for a search warrant based on an informant's statements that he had observed tinfoil packets on the person of a bartender and behind the bar at a certain tavern and that he had been advised by the bartender that the latter would have heroin for sale on a certain date, a judge of an Illinois state court issued a warrant authorizing the search of the tavern and the person of the bartender for "evidence of the offense of possession of a controlled substance." Upon entering the tavern to execute the warrant, police officers announced their purpose and advised those present that they were going to conduct a "cursory search for weapons." The officer who searched the customers felt what he described as "a cigarette pack with objects in it" in his first pat-down of appellant, one of the customers. The officer did not then remove this pack from appellant's pocket but, after patting down other customers, returned to appellant, frisked him again, retrieved the cigarette pack from his pants pocket, and found inside it six tinfoil packets containing heroin. After appellant was indicted for unlawful possession of a controlled substance, he filed a pretrial motion to suppress the contraband seized from his person at the tavern. The trial court denied the motion, finding that the search had been conducted under the authority of an Illinois statute which empowers law enforcement officers executing a search warrant to detain and search any person found on the premises in order to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. Appellant was convicted, and the Illinois Appellate Court affirmed, holding that the Illinois statute was not unconstitutional in its application to the facts of this case.Held: The searches of appellant and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. Pp. 444 U. S. 90-96.(a) When the search warrant was issued, the authorities had no probable cause to believe that any person found in the tavern, aside from the bartender, would be violating the law. The complaint for the warrant did not allege that the tavern was frequented by persons illegally purchasing drugs or that the informant had ever seen a patron of the tavern purchase drugs from the bartender or any other person. Page 444 U. S. 86 And probable cause to search appellant was still absent when the police executed the warrant; upon entering the tavern, the police did not recognize appellant and had no reason to believe that he had committed, was committing, or was about to commit any offense. The police did possess a warrant based on probable cause to search the tavern where appellant happened to be when the warrant was executed, but a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U. S. 40, 392 U. S. 62-63. Although the warrant gave the officers authority to search the premises and the bartender, it gave them no authority to invade the constitutional protections possessed individually by the tavern's customers. Pp. 444 U. S. 90-92.(b) Nor was the action of the police constitutionally permissible on the theory that the first search of appellant constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U. S. 1, and yielded probable cause to believe that appellant was carrying narcotics, thus justifying the second search for which no warrant was required in light of the exigencies of the situation coupled with the ease with which appellant could have disposed of the illegal substance. A reasonable belief that a person is armed and presently dangerous must form the predicate to a pat-down of the person for weapons. Here, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that appellant was armed and dangerous. Pp. 444 U. S. 92-93.(c) The Fourth and Fourteenth Amendments will not be construed to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, even where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband." Cf. United States v. Di Re, 332 U. S. 581. Pp. 444 U. S. 94-96.58 Ill.App.3d 57, 373 N.E.2d 1013, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 444 U. S. 96. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 444 U. S. 98. Page 444 U. S. 87

1976_75-567

MR. JUSTICE REHNQUIST delivered the opinion of the Court.This lawsuit began when the State of Oregon sued Corvallis Sand & Gravel Co., an Oregon corporation, to settle the ownership of certain lands underlying the Willamette River. The Willamette is a navigable river, and this land is located near Corvallis, Oregon. The river is not an interstate boundary.Corvallis Sand had been digging in the disputed part of the riverbed for 40 to 50 years without a lease from the State. The State brought an ejectment action against Corvallis Sand, seeking to recover 11 separate parcels of riverbed, as well as damages for the use of the parcels. The State's complaint alleged that, by virtue of its sovereignty, it was the owner in fee simple of the disputed portions of the riverbed, and that it was entitled to immediate possession and damages. Corvallis Sand denied the State's ownership of the bed. Page 429 U. S. 366Each party was partially successful in the Oregon courts, [Footnote 1] and we granted cross petitions for certiorari. 423 U.S. 1048. Those courts understandably felt that our recent decision in Bonelli Cattle Co. v. Arizona, 414 U. S. 313 (1973), required that they ascertain and apply principles of federal common law to the controversy. Twenty-six States have joined in three amicus briefs urging that we reconsider Bonelli, supra, because of what they assert is its significant departure from long-established precedent in this Court.IThe nature of the litigation and the contentions of the parties may be briefly stated. Title to two distinct portions of land has been at issue throughout. The first of these portions has apparently been within the bed of the Willamette River since region's admission into the Union.The other portion of the land underlies the river in an area known as Fischer Cut, which was not a part of the riverbed at the time Oregon was admitted to the Union. The trial court found that prior to a flood which occurred in November, 1909, the Willamette flowed around a peninsula-like formation known as Fischer Island, but that, by 1890, a clearly discernible overflow channel across the neck of the peninsula had developed. Before 1909 this channel carried Page 429 U. S. 367 the flow of the river only at its intermediate or high stages, and the main channel of the river continued to flow around Fischer Island. But in November, 1909, a major flood, in the words of the Oregon trial court, "suddenly and with great force and violence converted Fischer Cut into the main channel of the river."The trial court, sitting without a jury, awarded all parcels in dispute, except for the Fischer Cut lands, to the State. T hat court found that the State had acquired sovereign title to those lands upon admission into the Union, and that it had not conveyed that title. The State was also awarded damages to recompense it for Corvallis Sand's use of the lands.With respect to the Fischer Cut lands, the trial court found that avulsion, rather than accretion, had caused the change in the channel of the river, and therefore the title to the lands remained in Corvallis Sand, the original owner of the land before it became riverbed.The Oregon Court of Appeals affirmed. That court felt bound, under Bonelli, to apply federal common law to the resolution of this property dispute. In so doing, the court found that the trial court's award of Fischer Cut to Corvallis Sand was correct either under the theory of avulsion or under the so-called exception to the accretion rule, announced in Commissioners v. United States, 270 F. 110 (CA8 1920). [Footnote 2] The court, finding that preservation of the State's Page 429 U. S. 368 interest in navigation, fishing, and other related goals did not require that it acquire ownership of the new bed, rejected the argument that the State's sovereign title to a riverbed follows the course of the river as it moves.IIIn this Court, Oregon urges that we either modify Bonelli or expound "federal common law" in such a way that its title to all the land in question will be established. Corvallis Sand urges that we interpret "federal common law" in such a manner that it will prevail. Amici, as previously noted, urge that we reexamine Bonelli because, in their view, that case represented a sharp break with well established previous decisions of the Court. [Footnote 3]The dispute in Bonelli was over the ownership of the former bed of the Colorado River, a bed which the river had abandoned because of a federal rechanneling project. The Bonelli land was not part of the actual riverbed, however, either at the time Arizona was admitted to the Union or at the time of suit. Before Arizona had been admitted as a Page 429 U. S. 369 State, Bonelli's predecessor in title had received a United States patent to the land. Over a period of years, the Colorado River had migrated gradually eastward, eroding its east bank and depositing alluvion on its west bank in the process. In the course of this movement of the river, the Bonelli land, which had, at the time of patent, been on the east bank, was submerged, and, until the rechanneling project, most of it was under water. After the completion of the rechanneling project the bed of the Colorado River was substantially narrowed, and the Bonelli land reemerged.The Supreme Court of Arizona held that Arizona owned the title to the beds of navigable rivers within its borders, and that Arizona therefore acquired title to the Bonelli land when it became part of the riverbed as a result of the eastward migration of the Colorado. That court went on to hold that, under state law, the reemergence of the land was an avulsive change, which did not divest the State of its title to the exposed land. This Court granted certiorari and reversed the Supreme Court of Arizona.We phrased the critical inquiry in Bonelli in these words:"he issue before us is not what rights the State has accorded private [land] owners in lands which the State holds as sovereign, but, rather, how far the State's sovereign right extends under the equal-footing doctrine and the Submerged Lands Act -- whether the State retains title to the lands formerly beneath the stream of the Colorado River or whether that title is defeasible by the withdrawal of those waters."414 U.S. at 414 U. S. 319-320. (Emphasis added.)We held that federal common law should govern in deciding whether a State retained title to lands which had reemerged from the bed of a navigable stream, relying in part on Borax, Ltd. v. Los Angeles, 296 U. S. 10 (1935). That case held that the extent and validity of a federal grant was a question to be resolved by federal law, and, in Bonelli, Page 429 U. S. 370 we decided that the nature of the title conferred by the equal-footing doctrine set forth in Pollard's Lessee v. Hagan, 3 How. 212 (1845), should likewise be governed by federal common law. Under the equal-footing doctrine "the new States since admitted have the same rights, sovereignty and jurisdiction . . . as the original States possess within their respective borders." Mumford v. Wardwell, 6 Wall. 423, 73 U. S. 436 (1867). Pollard's Lessee held that, under the equal-footing doctrine, new States, upon their admission to the Union, acquire title to the lands underlying navigable waters within their boundaries.We went on to discuss the nature of the sovereign's interest in the riverbed, which we found to lie in the protection of navigation, fisheries, and similar purposes. We held that, under federal common law, as we construed it in that case, Arizona's sovereign interest in the reemerged land was not sufficient to enable it to retain title. We found the principle governing title to lands which have been formed by accretion, rather than that which governs title where there has been an avulsive change in the channel of the river, to be applicable. We chose the former because it would both ensure the riparian owner access to the water's edge and prevent the State from receiving a windfall. We therefore decided that Bonelli, as riparian owner, was entitled to the land in question.Our analysis today leads us to conclude that our decision to apply federal common law in Bonelli was incorrect. We first summarize the basis for this conclusion, and then elaborate in greater detail in Parts III and IV, infra.The title to the land underlying the Colorado River at the time Arizona was admitted to the Union vested in the State as of that date under the rule of Pollard's Lessee v. Hagan, supra. Although federal law may fix the initial boundary line between fast lands and the riverbeds at the time of a State's admission to the Union, the State's title Page 429 U. S. 371 to the riverbed vests absolutely as of the time of its admission, and is not subject to later defeasance by operation of any doctrine of federal common law. Wilcox v. Jackson, 13 Pet. 498 (1839); Weber v. Harbor Comm'rs, 18 Wall. 7 (1873).Bonelli's thesis that the equal-footing doctrine would require the effect of a movement of the river upon title to the riverbed to be resolved under federal common law was in error. Once the equal-footing doctrine had vested title to the riverbed in Arizona as of the time of its admission to the Union, the force of that doctrine was spent; it did not operate after that date to determine what effect on titles the movement of the river might have. Our error, as we now see it, was to view the equal-footing doctrine enunciated in Pollard's Lessee v. Hagan as a basis upon which federal common law could supersede state law in the determination of land titles. Precisely the contrary is true; in Pollard's Lessee itself, the equal-footing doctrine resulted in the State's acquisition of title notwithstanding the efforts of the Federal Government to dispose of the lands in question in another way.The equal-footing doctrine did not, therefore, provide a basis for federal law to supersede the State's application of its own law in deciding title to the Bonelli land, and state law should have been applied unless there were present some other principle of federal law requiring state law to be displaced. The only other basis [Footnote 4] for a colorable claim Page 429 U. S. 372 of federal right in Bonelli was that the Bonelli land had originally been patented to its predecessor by the United States, just as had most other land in the Western States. But that land had long been in private ownership and, hence, under the great weight of precedent from this Court, subject to the general body of state property law. Wilcox v. Jackson, supra at 38 U. S. 517. Since the application of federal common law is required neither by the equal-footing doctrine nor by any other claim of federal right, we now believe that title to the Bonelli land should have been governed by Arizona law, and that the disputed ownership of the lands in the bed of the Willamette River in this case should be decided solely as a matter of Oregon law.IIIPollard's Lessee v. Hagan, supra, holds that the State receives absolute title to the beds of navigable waterways within its boundaries upon admission to the Union, and contains not the slightest suggestion that such title is "defeasible" in the technical sense of that term. The issue there was whether a federal patent, issued after the admission of Alabama to the Union, could validly convey lands that had underlain navigable waters upon Alabama's admission. The Court had before it the following jury charge, given in the ejectment action below:"[T]hat if [the jury] believed the premises sued for were below usual high water-mark, at the time Page 429 U. S. 373 Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labour of man only, or by alluvion. . . ."3 How. at 44 U. S. 220. The Court regarded the case as one of signal importance, and it observed that the decision was approached "with a just sense of its great importance to all the states of the union, and particularly to the new ones." Ibid. Mr. Justice Catron, in his dissenting opinion, commented that he deemed the case"the most important controversy ever brought before this court, either as it respects the amount of property involved or the principles on which the present judgment proceeds. . . ."Id. at 44 U. S. 235. The Court gave careful consideration to the role of the United States in holding the lands in question in trust for the new States, and to the recognition that the new States would be admitted "upon an equal footing, in all respects whatever . . . " with the original States. Id. at 44 U. S. 224. Citing Martin v. Waddell, 16 Pet. 367, 41 U. S. 410 (1842), the Court noted that the original States held the"'absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.'"3 How. at 44 U. S. 229. The Court then concluded:"First, The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the states respectively. Secondly, The new states have the same rights, sovereignty, and jurisdiction over this subject as the original states. Thirdly, The right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy. . . ."Id. at 44 U. S. 230. Page 429 U. S. 374 In so holding, the Court established the absolute title of the States to the beds of navigable waters, a title which neither a provision in the Act admitting the State to the Union [Footnote 5] nor a grant from Congress to a third party was capable of defeating.Thus, under Pollard's Lessee, the State's title to lands underlying navigable waters within its boundaries is conferred not by Congress, but by the Constitution itself. The rule laid down in Pollard's Lessee has been followed in an unbroken line of cases which make it clear that the title thus acquired by the State is absolute so far as any federal principle of land titles is concerned. For example, in Weber v. Harbor Comm'rs, 18 Wall. at 85 U. S. 66, the Court reaffirmed the doctrine of Pollard's Lessee:"Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters. . . ."(Emphasis added.) In Barney v. Keokuk, 94 U. S. 324, 94 U. S. 338 (1877), the Court extended the doctrine to waters which were nontidal but nonetheless navigable, consistent with its earlier extension of admiralty jurisdiction to such waters in The Propeller Page 429 U. S. 375 Genesee Chief v. Fitzhugh, 12 How. 443 (1852). And in Shively v. Bowlby, 152 U. S. 1 (1894), the Court recounted in extenso the many cases which had followed the doctrine of Pollard's Lessee. In summarizing its holding, 152 U.S. at 152 U. S. 57-58, the Court stated:"The new States admitted into the Union since the adoption of the Constitution have the same rights as the original States in the tidewaters, and in the lands under them, within their respective jurisdictions. The title and rights of riparian or littoral proprietors in the soil below [the] high water mark therefore are governed by the laws of the several States, subject to the rights granted to the United States by the Constitution."At the time of our decision in Bonelli, this line of authority stood side by side with, and was wholly consistent with, other cases requiring the application of federal law to questions of land titles or boundaries. Where Mexico had patented tidal lands to a private owner before ceding to the United States the territory which ultimately became the State of California, California did not succeed to the ownership of such lands upon her admission to the Union. Knight v. United States Land Assn., 142 U. S. 161 (1891). If a navigable stream is an interstate boundary, this Court, in the exercise of its original jurisdiction over suits between States, has necessarily developed a body of federal common law to determine the effect of a change in the bed of the stream on the boundary. See, e.g., Nebraska v. Iowa, 143 U. S. 359 (1892); Arkansas v. Tennessee, 246 U. S. 158 (1918). Congress possesses, by virtue of its commerce power, a "navigational servitude" with respect to navigable waters."All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual Page 429 U. S. 376 owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution,"Gibson v. United States, 166 U. S. 269, 166 U. S. 271-272 (1897).In Borax, Ltd. v. Los Angeles, 296 U. S. 10 (1935), this Court also found a basis to apply federal law, but its rationale does not dictate a different result in this case. In Borax, the city of Los Angeles brought suit to quiet title in certain land in Los Angeles Harbor. Los Angeles claimed the land under a grant from the State of California, whereas Borax, Ltd., claimed the land as a successor in interest to a federal patentee. The federal patent had purported to convey a specified quantity of land, 18.88 acres, according to a survey by the General Land Office. This Court recognized that, if the patent purported to convey lands which were part of the tidelands, the patent would be invalid to that extent, since the Federal Government has no power to convey lands which are rightfully the State's under the equal-footing doctrine. Id. at 296 U. S. 17-19. The Court affirmed the decision of the Court of Appeals to remand for a new trial to allow the city to attempt to prove that some portion of the lands described in the federal patent was in fact tideland.The Court went on to hold that the boundary between the upland and tideland was to be determined by federal law. Id. at 296 U. S. 22. This same principle would require that determination of the initial boundary between a riverbed, which the State acquired under the equal-footing doctrine, and riparian fast lands likewise be decided as a matter of federal law, rather than state law. But that determination is solely for the purpose of fixing the boundaries of the riverbed acquired by the State at the time of its admission to the Union; thereafter, the role of the equal-footing doctrine is ended, and the land is subject to the laws of the State. The expressions in Bonelli suggesting a more expansive Page 429 U. S. 377 role for the equal-footing doctrine are contrary to the line of cases following Pollard's Lessee. [Footnote 6]For example, this Court has held that subsequent changes in the contour of the land, as well as subsequent transfers of the land, are governed by the state law. Joy v. St. Louis, 201 U. S. 332, 201 U. S. 343 (1906). Indeed, the rule that lands once having passed from the Federal Government are subject to the laws of the State in which they lie antedates Pollard's Lessee. As long ago as 1839, the Court said:"We hold the true principle to be this, that whenever the question in any Court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that, whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."Wilcox v. Jackson, 13 Pet. at 38 U. S. 517. (Emphasis added.) Page 429 U. S. 378The contrary approach would result in a perverse application of the equal-footing doctrine. An original State would be free to choose its own legal principles to resolve property disputes relating to land under its riverbeds; a subsequently admitted State would be constrained by the equal-footing doctrine to apply the federal common law rule, which may result in property law determinations antithetical to the desires of that State. See Bonelli, 414 U.S. at 414 U. S. 332-333 (STEWART, J.J dissenting).Thus, if the lands at issue did pass under the equal-footing doctrine, state title is not subject to defeasance, and state law governs subsequent dispositions. [Footnote 7]IVA similar result obtains in the case of riparian lands which did not pass under the equal-footing doctrine. This Court has consistently held that state law governs issues relating to this property, like other real property, unless some other principle of federal law requires a different result.Under our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States."The great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state."Daves Warehouse Co. v. Bowles, 321 U. S. 144, 321 U. S. 155 (1944). This is particularly true with respect Page 429 U. S. 379 to real property, or even when federal common law was in its heyday under the teachings of Swift v. Tyson, 16 Pet. 1 (1842), an exception was carved out for the local law of real property. Id. at 41 U. S. 18. See United States v. Little Lake Misere Land Co., 412 U. S. 580, 412 U. S. 591 (1973).This principle applies to the banks and shores of waterways, and we have consistently so held. Barney v. Keokuk, 94 U. S. 324 (1877), involved an ejectment action by the plaintiff against the city involving certain land along the banks of the Mississippi River. After noting that the early state doctrines regarding the ownership of the soil of nontidal waters were based upon the then-discarded English view that nontidal waters were presumed nonnavigable, the Court clearly articulated the rule that the States could formulate, and modify, rules of riparian ownership as they saw fit:"Whether, as rules of property, it would now be safe to change these doctrines [arising out of the confusion of the original classification of nontidal waters as nonnavigable] where they have been applied, as before remarked, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, Pollard's Lessee v. Hagan, 3 How. 212, and Goodtitle v. Kibbe, 9 id. 44 U. S. 471. These cases related to tide-water, it is true, but they enunciate principles which are equally applicable to all navigable waters."Id. at 94 U. S. 338.In Shively v. Bowlby, the Court canvassed its previous decisions and emphasized that state law controls riparian ownership. The Court concluded that grants by Congress of land bordering navigable waters"leave the question of the use of the shores by the owners of uplands to the sovereign control of each State, subject only to the rights Page 429 U. S. 380 vested by the Constitution in the United States."152 U.S. at 152 U. S. 58. As the Court again emphasized in Packer v. Bird, 137 U. S. 661, 137 U. S. 669 (1891):"[W]hatever incidents or rights attach to the ownership of property conveyed by the government will be determined by the States, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee."This doctrine was squarely applied to the case of a riparian proprietor in Joy v. St. Louis, 201 U. S. 332 (1906). The land at issue had originally been granted to the patentee's predecessor by Spain, and Congress had confirmed the grant and issued letters patent. This Court held that the fact that a plaintiff claimed accretions to land patented to his predecessor by the Federal Government did not confer federal question jurisdiction, and implicitly rejected any notion that "federal common law" [Footnote 8] had any application to the resolution. Central to this result was the holding:"As this land in controversy is not the land described Page 429 U. S. 381 in the letters patent or the [A]cts of Congress, but, as is stated in the petition, is formed by accretions or gradual deposits from the river, whether such land belongs to the plaintiff is, under the cases just cited, a matter of local or state law, and not one arising under the laws of the United States."Id. at 201 U. S. 343.VUpon full reconsideration of our decision in Bonelli, we conclude that it was wrong in treating the equal-footing doctrine as a source of federal common law after that doctrine had vested title to the riverbed in the State of Arizona as of the time of its admission to the Union. We also think there was no other basis in that case, nor is there any in this case, to support the application of federal common law to override state real property law. There are obviously institutional considerations which we must face in deciding whether for that reason to overrule Bonelli or to adhere to it, and those considerations cut both ways. Substantive rules governing the law of real property are peculiarly subject to the principle of stare decisis. See United States v. Title Ins. Co., 265 U. S. 472 (1924).Here, however, we are not dealing with substantive property law as such, but rather with an issue substantially related to the constitutional sovereignty of the States. In cases such as this, considerations of stare decisis play a less important role than they do in cases involving substantive property law. Cf. 48 U. S. 7 How. 283, Page 429 U. S. 382 48 U. S. 470 (1849) (Taney, C.J., dissenting); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 405-411 (1932) (Brandeis, J., dissenting); Smith v. Allwright, 321 U. S. 649 (1944). Even if we were to focus on the effect of our decision upon rules of substantive property law, our concern for unsettling titles would lead us to overrule Bonelli, rather than to retain it. See Minnesota Co. v. National Co., 3 Wall. 332, 70 U. S. 334 (1866). Since one system of resolution of property disputes has been adhered to from 1845 until 1973, and the other only for the past three years, a return to the former would more closely conform to the expectations of property owners than would adherence to the latter. We are also persuaded that, in large part because of the positions taken in the briefs presented to the Court in Bonelli, the Bonelli decision was not a deliberate repudiation of all the cases which had gone before. We there proceeded on the view, which we now think to have been mistaken, that Borax, supra, should be read so expansively as to in effect overrule sub silentio the line of cases following Pollard's Lessee.For all of these reasons, we have now decided that Bonelli's application of federal common law to cases such as this must be overruled.The judgment under review is vacated, and the case remanded to the Supreme Court of Oregon for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtState Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977)Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.No. 75-567Argued October 4, 1976Decided January 12, 1977*429 U.S. 363SyllabusThis litigation involves a dispute between the State of Oregon and an Oregon corporation over the ownership of two portions of land underlying the Willamette River, which is navigable but not an interstate boundary. The first portion has been within the riverbed since Oregon's admission into the Union, while the second portion is in an area that was not part of the riverbed at the time of Oregon's admission, but later became part of the riverbed because of changes in the river's course. In an ejectment action brought by Oregon against the corporation, which had been digging in the disputed part of the riverbed for 40 to 50 years without a lease from the State, the trial court awarded the first portion to the State on the ground that it had acquired sovereign title thereto upon admission into the Union and had not conveyed it, but with respect to the second portion found that avulsion, rather than accretion, had caused the changes in the river channel, and that therefore the title to the land remained in the corporation, its original owner before it became riverbed. The Oregon Court of Appeals affirmed, taking the view that it was bound to apply federal common law to the resolution of the dispute by Bonelli Cattle Co. v. Arizona, 414 U. S. 313, and accordingly holding that the trial court's award of the second portion to the corporation was correct either under the theory of avulsion or under an exception to the accretion rule, and that preservation of the State's interest in navigation, fishing, and other related goals did not require that it acquire ownership of the new riverbed. The Oregon Supreme Court affirmed, with certain modifications dealing only with a factual question regarding the length of the second portion.Held: The disputed ownership of the riverbed lands should be decided solely as a matter of Oregon law, and not by federal common law, since application of federal common law is required neither by the equal-footing doctrine nor by any other principle of federal law. If the lands at issue did pass under the equal-footing doctrine, state title is not subject to defeasance and state law governs subsequent Page 429 U. S. 364 dispositions. A similar result obtains in the case of riparian lands which did not pass under that doctrine; state law governs issues relating to such property, like other real property, unless some other principle of federal law requires a different result. Bonelli Cattle Co., supra, was wrong in treating the equal-footing doctrine as a source of federal common law after the doctrine had vested title to the riverbed in question in that case in the State of Arizona as of the time of its admission into the Union, and, accordingly, that case's application of federal common law to cases such as the instant one is overruled. Pp. 429 U. S. 368-382.272 Ore. 545, 536 P.2d 517; 272 Ore. 550, 538 P.2d 70, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting statement, post, p. 429 U.S. 382. MARSHALL, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 429 U.S. 382. Page 429 U. S. 365

1995_95-266

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined as to Part III, post, p. 18.Kenneth N. Flaxman argued the cause for petitioner.With him on the briefs were Ronald L. Futterman and Craig B. Futterman.Gregory E. Rogus argued the cause for respondents.With him on the brief were Paul E. Wojcicki, Robert E. Wilens, and Richard N. Williams.James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days and Deputy Solicitor General Bender. *JUSTICE STEVENS delivered the opinion of the Court. After a traumatic incident in which she shot and killed a man, a police officer received extensive counseling from a*Briefs of amici curiae urging affirmance were filed for the American Association of State Social Work Boards by John F. Atkinson; for the American Civil Liberties Union et al. by Steven R. Shapiro, Harvey Grossman, Leonard S. Rubenstein, Bruce J. Winick, and Daniel W Shuman; for the American Counseling Association by Lee H. Simowitz; for the American Psychiatric Association et al. by Richard G. Taranto; for the American Psychoanalytic Association et al. by Carter G. Phillips, Rex E. Lee, and Joseph R. Guerra; for the American Psychological Association by Paul M. Smith, Robert M. Portman, and James L. McHugh, Jr.; for the Employee Assistance Professionals Association, Inc., by Peter J. Rubin; for the Menninger Foundation by James C. Geoly, Michael T. Zeller, and Kevin R. Gustafson; for the National Association of Police Organizations, Inc., by William J. Johnson; for the National Association of Social Workers et al. by Michael B. Trister, Carolyn I. Polowy, Sandra G. Nye, Kenneth L. Adams, James van R. Springer, and Peter M. Brody; and for George R. Caesar et al. by Kurt W Melchior.Briefs of amici curiae were filed for the International Union of Police Associations, AFL-CIO, by Michael T. Leibig; and for the National Network to End Domestic Violence et al. by William C. Brashares.4licensed clinical social worker. The question we address is whether statements the officer made to her therapist during the counseling sessions are protected from compelled disclosure in a federal civil action brought by the family of the deceased. Stated otherwise, the question is whether it is appropriate for federal courts to recognize a "psychotherapist privilege" under Rule 501 of the Federal Rules of Evidence.IPetitioner is the administrator of the estate of Ricky Allen. Respondents are Mary Lu Redmond, a former police officer, and the Village of Hoffman Estates, Illinois, her employer during the time that she served on the police force.1 Petitioner commenced this action against respondents after Redmond shot and killed Allen while on patrol duty.On June 27,1991, Redmond was the first officer to respond to a "fight in progress" call at an apartment complex. As she arrived at the scene, two of Allen's sisters ran toward her squad car, waving their arms and shouting that there had been a stabbing in one of the apartments. Redmond testified at trial that she relayed this information to her dispatcher and requested an ambulance. She then exited her car and walked toward the apartment building. Before Redmond reached the building, several men ran out, one waving a pipe. When the men ignored her order to get on the ground, Redmond drew her service revolver. Two other men then burst out of the building, one, Ricky Allen, chasing the other. According to Redmond, Allen was brandishing a butcher knife and disregarded her repeated commands to drop the weapon. Redmond shot Allen when she believed he was about to stab the man he was chasing. Allen died at the scene. Redmond testified that before other officers1 Redmond left the police department after the events at issue in this lawsuit.5arrived to provide support, "people came pouring out of the buildings," App. 134, and a threatening confrontation between her and the crowd ensued.Petitioner filed suit in Federal District Court alleging that Redmond had violated Allen's constitutional rights by using excessive force during the encounter at the apartment complex. The complaint sought damages under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the Illinois wrongful-death statute, Ill. Compo Stat., ch. 740, § 180/1 et seq. (1994). At trial, petitioner presented testimony from members of Allen's family that conflicted with Redmond's version of the incident in several important respects. They testified, for example, that Redmond drew her gun before exiting her squad car and that Allen was unarmed when he emerged from the apartment building.During pretrial discovery petitioner learned that after the shooting Redmond had participated in about 50 counseling sessions with Karen Beyer, a clinical social worker licensed by the State of Illinois and employed at that time by the Village of Hoffman Estates. Petitioner sought access to Beyer's notes concerning the sessions for use in crossexamining Redmond. Respondents vigorously resisted the discovery. They asserted that the contents of the conversations between Beyer and Redmond were protected against involuntary disclosure by a psychotherapist-patient privilege. The district judge rejected this argument. Neither Beyer nor Redmond, however, complied with his order to disclose the contents of Beyer's notes. At depositions and on the witness stand both either refused to answer certain questions or professed an inability to recall details of their conversations.In his instructions at the end of the trial, the judge advised the jury that the refusal to turn over Beyer's notes had no "legal justification" and that the jury could therefore presume that the contents of the notes would have been un-6favorable to respondents.2 The jury awarded petitioner $45,000 on the federal claim and $500,000 on her state-law claim.The Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. Addressing the issue for the first time, the court concluded that "reason and experience," the touchstones for acceptance of a privilege under Rule 501 of the Federal Rules of Evidence, compelled recognition of a psychotherapist-patient privilege.3 51 F.3d 1346, 1355 (1995). "Reason tells us that psychotherapists and patients share a unique relationship, in which the ability to communicate freely without the fear of public disclosure is the key to successful treatment." Id., at 1355-1356. As to experience, the court observed that all 50 States have adopted some form of the psychotherapist-patient privilege. Id., at 1356. The court attached particular significance to the fact that Illinois law expressly extends such a privilege to social workers like Karen Beyer.4 Id., at 1357. The court also noted that, with one exception, the federal decisions rejecting the privilege were more than five years old and that the "need and demand for counseling services has skyrocketed during the past several years." Id., at 1355-1356.2 App. to Pet. for Cert. 67.3 Rule 501 provides as follows: "Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law."4 See Illinois Mental Health and Developmental Disabilities Confidentiality Act, Ill. Compo Stat., ch. 740, §§ 110/1-110/17 (1994).7The Court of Appeals qualified its recognition of the privilege by stating that it would not apply if, "in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests." Id., at 1357. Balancing those conflicting interests, the court observed, on the one hand, that the evidentiary need for the contents of the confidential conversations was diminished in this case because there were numerous eyewitnesses to the shooting, and, on the other hand, that Officer Redmond's privacy interests were substantial.5 Id., at 1358. Based on this assessment, the court concluded that the trial court had erred by refusing to afford protection to the confidential communications between Redmond and Beyer.The United States Courts of Appeals do not uniformly agree that the federal courts should recognize a psychotherapist privilege under Rule 501. Compare In re Doe, 964 F.2d 1325 (CA2 1992) (recognizing privilege); In re Zuniga, 714 F.2d 632 (CA6) (same), cert. denied, 464 U. S. 983 (1983), with United States v. Burtrum, 17 F.3d 1299 (CAlO) (declining to recognize privilege), cert. denied, 513 U. S. 863 (1994); In re Grand Jury Proceedings, 867 F.2d 562 (CA9) (same), cert. denied sub nom. Doe v. United States, 493 U. S. 906 (1989); United States v. Corona, 849 F.2d 562 (CAll 1988) (same), cert. denied, 489 U. S. 1084 (1989); United States v. Meagher, 531 F.2d 752 (CA5) (same), cert. denied, 429 U. S. 853 (1976). Because of the conflict among the Courts of5 "Her ability, through counseling, to work out the pain and anguish undoubtedly caused by Allen's death in all probability depended to a great deal upon her trust and confidence in her counselor Karen Beyer. Officer Redmond, and all those placed in her most unfortunate circumstances, are entitled to be protected in their desire to seek counseling after mortally wounding another human being in the line of duty. An individual who is troubled as the result of her participation in a violent and tragic event, such as this, displays a most commendable respect for human life and is a person well-suited 'to protect and to serve.''' 51 F. 3d, at 1358.8Appeals and the importance of the question, we granted certiorari. 516 U. S. 930 (1995). We affirm.IIRule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting "common law principles ... in the light of reason and experience." The authors of the Rule borrowed this phrase from our opinion in Wolfle v. United States, 291 U. S. 7, 12 (1934),6 which in turn referred to the oft-repeated observation that "the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions." Funk v. United States, 290 U. S. 371, 383 (1933). See also Hawkins v. United States, 358 U. S. 74, 79 (1958) (changes in privileges may be "dictated by 'reason and experience' "). The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 "should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship ... should be determined on a case-by-case basis." S. Rep. No. 93-1277, p. 13 (1974).7 The Rule thus6 "[T]he rules governing the competence of witnesses in criminal trials in the federal courts are not necessarily restricted to those local rules in force at the time of the admission into the Union of the particular state where the trial takes place, but are governed by common law principles as interpreted and applied by the federal courts in the light of reason and experience. Funk v. United States, 290 U. S. 371." Wolfie v. United States, 291 U. S., at 12-13.7 In 1972 the Chief Justice transmitted to Congress proposed Rules of Evidence for United States Courts and Magistrates. 56 F. R. D. 183 (hereinafter Proposed Rules). The Rules had been formulated by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. Trammel v. United States, 445 U. S. 40, 47 (1980). The Proposed Rules defined nine specific testimonial privileges, including a psychotherapist-patient privilege, and indicated that these were to be the exclusive privileges absent constitutional mandate, Act of Congress, or revision of the Rules. Proposed Rules 501-513, 56 F. R. D., at 230-261. Congress rejected this recommendation in favor of Rule 501's general mandate. Trammel, 445 U. S., at 47.9did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to "continue the evolutionary development of testimonial privileges." Trammel v. United States, 445 U. S. 40, 47 (1980); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990).The common-law principles underlying the recognition of testimonial privileges can be stated simply. "'For more than three centuries it has now been recognized as a fundamental maxim that the public ... has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'" United States v. Bryan, 339 U. S. 323, 331 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed. 1940)).8 See also United States v. Nixon, 418 U. S. 683, 709 (1974). Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a "'public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel, 445 U. S., at 50 (quoting Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting)).Guided by these principles, the question we address today is whether a privilege protecting confidential communications between a psychotherapist and her patient "promotes sufficiently important interests to outweigh the need for8The familiar expression "every man's evidence" was a well-known phrase as early as the mid-18th century. Both the Duke of Argyll and Lord Chancellor Hardwicke invoked the maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of Orford. 12 T. Hansard, Parliamentary History of England 643, 675, 693, 697 (1812). The bill was defeated soundly. Id., at 711.10probative evidence .... " 445 U. S., at 51. Both "reason and experience" persuade us that it does.IIILike the spousal and attorney-client privileges, the psychotherapist-patient privilege is "rooted in the imperative need for confidence and trust." Ibid. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.9 As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist's ability to help her patients"'is completely dependent upon [the patients'] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ... , there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.'" Advisory Committee's9 See studies and authorities cited in the Brief for American Psychiatric Association et al. as Amici Curiae 14-17 and the Brief for American Psychological Association as Amicus Curiae 12-17.11Notes to Proposed Rules, 56 F. R. D. 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960)).By protecting confidential communications between a psychotherapist and her patient from involuntary disclosure, the proposed privilege thus serves important private interests.Our cases make clear that an asserted privilege must also "serv[e] public ends." Upjohn Co. v. United States, 449 U. S. 383, 389 (1981). Thus, the purpose of the attorney-client privilege is to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Ibid. And the spousal privilege, as modified in Trammel, is justified because it "furthers the important public interest in marital harmony," 445 U. S., at 53. See also United States v. Nixon, 418 U. S., at 705; Wolfle v. United States, 291 U. S., at 14. The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.1oIn contrast to the significant public and private interests supporting recognition of the privilege, the likely evidentiary benefit that would result from the denial of the privilege is modest. If the privilege were rejected, confidential conver-10 This case amply demonstrates the importance of allowing individuals to receive confidential counseling. Police officers engaged in the dangerous and difficult tasks associated with protecting the safety of our communities not only confront the risk of physical harm but also face stressful circumstances that may give rise to anxiety, depression, fear, or anger. The entire community may suffer if police officers are not able to receive effective counseling and treatment after traumatic incidents, either because trained officers leave the profession prematurely or because those in need of treatment remain on the job.12sations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access-for example, admissions against interest by a party-is unlikely to come into being. This unspoken "evidence" will therefore serve no greater truth-seeking function than if it had been spoken and privileged.That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege.ll We have previously observed that the policy decisions of the States bear on the question whether federal courts should11 Ala. Code § 34-26-2 (1975); Alaska Rule Evid. 504; Ariz. Rev. Stat.Ann. § 32-2085 (1992); Ark. Rule Evid. 503; Cal. Evid. Code Ann. §§ 1010, 1012, 1014 (West 1995); Colo. Rev. Stat. § 13-90-107(g) (Supp. 1995); Conn. Gen. Stat. § 52-146c (1995); Del. Uniform Rule Evid. 503; D. C. Code Ann. § 14-307 (1995); Fla. Stat. § 90.503 (Supp. 1992); Ga. Code Ann. § 24-9-21 (1995); Haw. Rules Evid. 504, 504.1; Idaho Rule Evid. 503; Ill. Compo Stat., ch. 225, § 15/5 (1994); Ind. Code § 25-33-1-17 (1993); Iowa Code § 622.10 (1987); Kan. Stat. Ann. § 74-5323 (1985); Ky. Rule Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995); Me. Rule Evid. 503; Md. Cts. & Jud. Proc. Code Ann. § 9-109 (1995); Mass. Gen. Laws § 233:20B (1995); Mich. Compo Laws Ann. § 333.18237 (West Supp. 1996); Minn. Stat. § 595.02 (1988 and Supp. 1996); Miss. Rule Evid. 503; Mo. Rev. Stat. § 491.060 (1994); Mont. Code Ann. §26-1-807 (1994); Neb. Rev. Stat. §27-504 (1995); Nev. Rev. Stat. § 49.215 (1993); N. H. Rule Evid. 503; N. J. Stat. Ann. § 45: 14B-28 (West 1995); N. M. Rule Evid. 11-504; N. Y. Civ. Prac. Law §4507 (McKinney 1992); N. C. Gen. Stat. § 8-53.3 (Supp. 1995); N. D. Rule Evid. § 503; Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat., Tit. 12, §2503 (1991); Ore. Rules Evid. 504, 504.1; 42 Pa. Cons. Stat. § 5944 (1982); R. I. Gen. Laws §§ 5-37.3-3, 5-37.3-4 (1995); S. C. Code Ann. § 19-11-95 (Supp. 1995); S. D. Codified Laws §§ 19-13-6 to 19-13-11 (1995); Tenn. Code Ann. §24-1-207 (1980); Tex. Rules Civ. Evid. 509, 510; Utah Rule Evid. 506; Vt. Rule Evid. 503; Va. Code Ann. §8.01-400.2 (1992); Wash. Rev. Code § 18.83.110 (1994); W. Va. Code § 27-3-1 (1992); Wis. Stat. § 905.04 (19931994); Wyo. Stat. §33-27-123 (Supp. 1995).13recognize a new privilege or amend the coverage of an existing one. See Trammel, 445 U. S., at 48-50; United States v. Gillock, 445 U. S. 360, 368, n. 8 (1980). Because state legislatures are fully aware of the need to protect the integrity of the factfinding functions of their courts, the existence of a consensus among the States indicates that "reason and experience" support recognition of the privilege. In addition, given the importance of the patient's understanding that her communications with her therapist will not be publicly disclosed, any State's promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court. 12 Denial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications.It is of no consequence that recognition of the privilege in the vast majority of States is the product of legislative action rather than judicial decision. Although common-law rulings may once have been the primary source of new developments in federal privilege law, that is no longer the case. In Funk v. United States, 290 U. S. 371 (1933), we recognized that it is appropriate to treat a consistent body of policy determinations by state legislatures as reflecting both "reason" and "experience." Id., at 376-381. That rule is properly respectful of the States and at the same time reflects the fact that once a state legislature has enacted a privilege there is no longer an opportunity for common-law creation of the protection. The history of the psychotherapist privilege illustrates the latter point. In 1972 the members of the12 At the outset of their relationship, the ethical therapist must disclose to the patient "the relevant limits on confidentiality." See American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Standard 5.01 (Dec. 1992). See also National Federation of Societies for Clinical Social Work, Code of Ethics yea) (May 1988); American Counseling Association, Code of Ethics and Standards of Practice A.3.a (effective July 1995).14Judicial Conference Advisory Committee noted that the common law "had indicated a disposition to recognize a psychotherapist-patient privilege when legislatures began moving into the field." Proposed Rules, 56 F. R. D., at 242 (citation omitted). The present unanimous acceptance of the privilege shows that the state lawmakers moved quickly. That the privilege may have developed faster legislatively than it would have in the courts demonstrates only that the States rapidly recognized the wisdom of the rule as the field of psychotherapy developed.13The uniform judgment of the States is reinforced by the fact that a psychotherapist privilege was among the nine specific privileges recommended by the Advisory Committee in its proposed privilege rules. In United States v. Gillock, 445 U. S., at 367-368, our holding that Rule 501 did not include a state legislative privilege relied, in part, on the fact that no such privilege was included in the Advisory Commit-13 Petitioner acknowledges that all 50 state legislatures favor a psychotherapist privilege. She nevertheless discounts the relevance of the state privilege statutes by pointing to divergence among the States concerning the types of therapy relationships protected and the exceptions recognized. A small number of state statutes, for example, grant the privilege only to psychiatrists and psychologists, while most apply the protection more broadly. Compare Haw. Rules Evid. 504, 504.1 and N. D. Rule Evid. 503 (privilege extends to physicians and psychotherapists), with Ariz. Rev. Stat. Ann. § 32-3283 (1992) (privilege covers "behavioral health professional[s]"); Tex. Rule Civ. Evid. 510(a)(1) (privilege extends to persons "licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder" or "involved in the treatment or examination of drug abusers"); Utah Rule Evid. 506 (privilege protects confidential communications made to marriage and family therapists, professional counselors, and psychiatric mental health nurse specialists). The range of exceptions recognized by the States is similarly varied. Compare Ark. Code Ann. § 17-46-107 (1987) (narrow exceptions); Haw. Rules Evid. 504, 504.1 (same), with Cal. Evid. Code Ann. §§ 10161027 (West 1995) (broad exceptions); R. 1. Gen. Laws § 5-37.3-4 (1995) (same). These variations in the scope of the protection are too limited to undermine the force of the States' unanimous judgment that some form of psychotherapist privilege is appropriate.15tee's draft. The reasoning in Gillock thus supports the opposite conclusion in this case. In rejecting the proposed draft that had specifically identified each privilege rule and substituting the present more open-ended Rule 501, the Senate Judiciary Committee explicitly stated that its action "should not be understood as disapproving any recognition of a psychiatrist-patient ... privileg[e] contained in the [proposed] rules." S. Rep. No. 93-1277, at 13.Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapistpatient privilege will serve a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth," Trammel, 445 U. S., at 50, we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.14IVAll agree that a psychotherapist privilege covers confidential communications made to licensed psychiatrists and psychologists. We have no hesitation in concluding in this case that the federal privilege should also extend to confidential communications made to licensed social workers in the course of psychotherapy. The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker such as Karen Beyer. 15 Today, social workers pro-14 Like other testimonial privileges, the patient may of course waive the protection.15 If petitioner had filed her complaint in an Illinois state court, respondents' claim of privilege would surely have been upheld, at least with respect to the state wrongful-death action. An Illinois statute provides that conversations between a therapist and her patients are privileged from compelled disclosure in any civil or criminal proceeding. Ill. Compo Stat., ch. 740, § 110/10 (1994). The term "therapist" is broadly defined to encompass a number of licensed professionals including social work-16vide a significant amount of mental health treatment. See, e. g., U. S. Dept. of Health and Human Services, Center for Mental Health Services, Mental Health, United States, 1994, pp. 85-87, 107-114; Brief for National Association of Social Workers et al. as Amici Curiae 5-7 (citing authorities). Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist, id., at 6-7 (citing authorities), but whose counseling sessions serve the same public goals.16 Perhaps in recognition of these circumstances, the vast majority of States explicitly extend a testimonial privilege to licenseders. Ch. 740, § 110/2. Karen Beyer, having satisfied the strict standards for licensure, qualifies as a clinical social worker in Illinois. 51 F.3d 1346, 1358, n. 19 (CA7 1995).Indeed, if only a state-law claim had been asserted in federal court, the second sentence in Rule 501 would have extended the privilege to that proceeding. We note that there is disagreement concerning the proper rule in cases such as this in which both federal and state claims are asserted in federal court and relevant evidence would be privileged under state law but not under federal law. See C. Wright & K. Graham, 23 Federal Practice and Procedure § 5434 (1980). Because the parties do not raise this question and our resolution of the case does not depend on it, we express no opinion on the matter.16 The Judicial Conference Advisory Committee's proposed psychotherapist privilege defined psychotherapists as psychologists and medical doctors who provide mental health services. Proposed Rules, 56 F. R. D., at 240. This limitation in the 1972 recommendation does not counsel against recognition of a privilege for social workers practicing psychotherapy. In the quarter century since the Committee adopted its recommendations, much has changed in the domains of social work and psychotherapy. See generally Brief for National Association of Social Workers et al. as Amici Curiae 5-13 (and authorities cited). While only 12 States regulated social workers in 1972, all 50 do today. See American Association of State Social Work Boards, Social Work Laws and Board Regulations: A State Comparison Study 29, 31 (1996). Over the same period, the relative portion of therapeutic services provided by social workers has increased substantially. See U. S. Dept. of Health and Human Services, Center for Mental Health Services, Mental Health, United States, 1994, pp. 85-87, 107-114.17social workersP We therefore agree with the Court of Appeals that "[d]rawing a distinction between the counseling provided by costly psychotherapists and the counseling provided by more readily accessible social workers serves no discernible public purpose." 51 F. 3d, at 1358, n. 19.We part company with the Court of Appeals on a separate point. We reject the balancing component of the privilege implemented by that court and a small number of States.18 Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. As17 See Ariz. Rev. Stat. Ann. §32-3283 (1992); Ark. Code Ann. § 17-46-107 (1995); Cal. Evid. Code Ann. §§ 1010, 1012, 1014 (West 1995); Colo. Rev. Stat. § 13-90-107 (1987); Conn. Gen. Stat. § 52-146q (1995); Del. Code Ann., Tit. 24, § 3913 (1987); D. C. Code Ann. § 14-307 (1995); Fla. Stat. § 90.503 (1991); Ga. Code Ann. § 24-9-21 (1995); Idaho Code § 54-3213 (1994); Ill. Compo Stat., ch. 225, §20/16 (1994); Ind. Code §25-23.6-6-1 (1993); Iowa Code § 622.10 (1987); Kan. Stat. Ann. § 65-6315 (Supp. 1990); Ky. Rule Evid. 507; La. Code Evid. Ann., Art. 510 (West 1995); Me. Rev. Stat. Ann., Tit. 32, § 7005 (1988); Md. Cts. & Jud. Proc. Code Ann. § 9-121 (1995); Mass. Gen. Laws § 112:135A (1994); Mich. Compo Laws Ann. § 339.1610 (West 1992); Minn. Stat. § 595.02(g) (1994); Miss. Code Ann. § 73-53-29 (1995); Mo. Rev. Stat. § 337.636 (Supp. 1996); Mont. Code Ann. § 37-22-401 (1995); Neb. Rev. Stat. §71-1,335 (1995); Nev. Rev. Stat. §§49.215, 49.225, 49.235 (1993); N. H. Rev. Stat. Ann. § 330-A:19 (1995); N. J. Stat. Ann. §45:15BB-13 (West 1995); N. M. Stat. Ann. § 61-31-24 (Supp. 1995); N. Y. Civ. Prac. Law §4508 (McKinney 1992); N. C. Gen. Stat. §8-53.7 (1986); Ohio Rev. Code Ann. §2317.02 (1995); Okla. Stat., Tit. 59, § 1261.6 (1991); Ore. Rev. Stat. § 40.250 (1991); R. I. Gen. Laws §§ 5-37.3-3, 5-37.3-4 (1995); S. C. Code Ann. § 19-11-95 (Supp. 1995); S. D. Codified Laws §3626-30 (1994); Tenn. Code Ann. § 63-23-107 (1990); Tex. Rule Civ. Evid. 510; Utah Rule Evid. 506; Vt. Rule Evid. 503; Va. Code Ann. §8.01-400.2 (1992); Wash. Rev. Code § 18.19.180 (1994); W. Va. Code §30-30-12 (1993); Wis. Stat. §905.04 (1993-1994); Wyo. Stat. §33-38-109 (Supp. 1995).18 See, e. g., Me. Rev. Stat. Ann., Tit. 32, § 7005 (1964); N. H. Rev. Stat.Ann. §330-A:19 (1995); N. C. Gen. Stat. §8-53.7 (1986); Va. Code Ann. § 8.01-400.2 (1992).18we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation "must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." 449 U. S., at 393.These considerations are all that is necessary for decision of this case. A rule that authorizes the recognition of new privileges on a case-by-case basis makes it appropriate to define the details of new privileges in a like manner. Because this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would "govern all conceivable future questions in this area." Id., at 386.19vThe conversations between Officer Redmond and Karen Beyer and the notes taken during their counseling sessions are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. The judgment of the Court of Appeals is affirmed.It is so ordered

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 1995SyllabusJAFFEE, SPECIAL ADMINISTRATOR FOR ALLEN, DECEASED v. REDMOND ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 95-266. Argued February 26, 1996-Decided June 13, 1996Petitioner, the administrator of decedent Allen's estate, filed this action alleging that Allen's constitutional rights were violated when he was killed by respondent Redmond, an on-duty police officer employed by respondent village. The court ordered respondents to give petitioner notes made by Karen Beyer, a licensed clinical social worker, during counseling sessions with Redmond after the shooting, rejecting their argument that a psychotherapist-patient privilege protected the contents of the conversations. Neither Beyer nor Redmond complied with the order. At trial, the jury awarded petitioner damages after being instructed that the refusal to turn over the notes was legally unjustified and the jury could presume that the notes would have been unfavorable to respondents. The Court of Appeals reversed and remanded, finding that "reason and experience," the touchstones for acceptance of a privilege under Federal Rule of Evidence 501, compelled recognition of a psychotherapist-patient privilege. However, it found that the privilege would not apply if, in the interests of justice, the evidentiary need for disclosure outweighed the patient's privacy interests. Balancing those interests, the court concluded that Beyer's notes should have been protected.2SyllabusHeld: The conversations between Redmond and her therapist and the notes taken during their counseling sessions are protected from compelled disclosure under Rule 501. Pp.8-18.(a) Rule 501 authorizes federal courts to define new privileges by interpreting "the principles of the common law ... in the light of reason and experience." The Rule thus did not freeze the law governing privileges at a particular point in history, but rather directed courts to "continue the evolutionary development of testimonial privileges." Trammel v. United States, 445 U. S. 40, 47. An exception from the general rule disfavoring testimonial privileges is justified when the proposed privilege "promotes sufficiently important interests to outweigh the need for probative evidence .... " Id., at 51. Pp.8-1O.(b) Significant private interests support recognition of a psychotherapist privilege. Effective psychotherapy depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede development of the relationship necessary for successful treatment. The privilege also serves the public interest, since the mental health of the Nation's citizenry, no less than its physical health, is a public good of transcendent importance. In contrast, the likely evidentiary benefit that would result from the denial of the privilege is modest. That it is appropriate for the federal courts to recognize a psychotherapist privilege is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of the privilege, see Trammel v. United States, 445 U. S., at 48-50, and reinforced by the fact that the privilege was among the specific privileges recommended in the proposed privilege rules that were rejected in favor of the more open-ended language of the present Rule 501. Pp. 10-15.(c) The federal privilege, which clearly applies to psychiatrists and psychologists, also extends to confidential communications made to licensed social workers in the course of psychotherapy. The reasons for recognizing the privilege for treatment by psychiatrists and psychologists apply with equal force to clinical social workers, and the vast majority of States explicitly extend a testimonial privilege to them. The balancing component implemented by the Court of Appeals and a few States is rejected, for it would eviscerate the effectiveness of the privilege by making it impossible for participants to predict whether their confidential conversations will be protected. Because this is the first case in which this Court has recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would govern all future questions. Pp. 15-18.51 F.3d 1346, affirmed.3Full Text of Opinion

1960_66

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioners were tried and found guilty in the District Court for the District of Columbia upon three counts of an indictment charging gambling offenses under the District of Columbia Code. At the trial, police officers were permitted to describe incriminating conversations engaged in by the petitioners at their alleged gambling establishment, conversations which the officers had overheard by means of an electronic listening device. The convictions were affirmed by the Court of Appeals, 107 U.S.App.D.C. 144, 275 F.2d 173, and we granted certiorari to consider the contention that the officers' testimony as to what they had heard through the electronic instrument should not have been admitted into evidence. 363 U.S. 801.The record shows that in the spring of 1958 the District of Columbia police had reason to suspect that the premises at 408 21st Street, N.W., in Washington, were being used as the headquarters of a gambling operation. They gained permission from the owner of the vacant adjoining row house to use it as an observation post. From this vantage point, for a period of at least three consecutive days in April, 1958, the officers employed a so-called "spike mike" to listen to what was going on within the four walls of the house next door.The instrument in question was a microphone with a spike about a foot long attached to, it together with an amplifier, a power pack, and earphones. The officers inserted the spike under a baseboard in a second-floor room of the vacant house and into a crevice extending several inches into the party wall, until the spike hit something solid "that acted as a very good sounding board." The record clearly indicates that the spike made contact with a heating duct serving the house occupied Page 365 U. S. 507 by the petitioners, thus converting their entire heating system into a conductor of sound. Conversations taking place on both floors of the house were audible to the officers through the earphones, and their testimony regarding these conversations, admitted at the trial over timely objection, played a substantial part in the petitioners' convictions. [Footnote 1]Affirming the convictions, the Court of Appeals held that the trial court had not erred in admitting the officers' testimony. The court was of the view that the officers' use of the spike mike had violated neither the Communications Act of 1934, 47 U.S.C. § 605, cf. Nardone v. United States, 302 U. S. 379, nor the petitioners' rights under the Fourth Amendment, cf. Weeks v. United States, 232 U. S. 383.In reaching these conclusions, the court relied primarily upon our decisions in Goldman v. United States, 316 U. S. 129, and On Lee v. United States, 343 U. S. 747. Judge Washington dissented, believing that, even if the petitioners' Fourth Amendment rights had not been abridged, the officers' conduct had transgressed the standards of due process guaranteed by the Fifth Amendment. Cf. Irvine v. California, 347 U. S. 128.As to the inapplicability of § 605 of the Communications Act of 1934, we agree with the Court of Appeals. That section provides that". . . no person not being Page 365 U. S. 508 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. . . ."While it is true that much of what the officers heard consisted of the petitioners' share of telephone conversations, we cannot say that the officers intercepted these conversations within the meaning of the statute.Similar contentions have been rejected here at least twice before. In Irvine v. California, 347 U. S. 128, 347 U. S. 131, the Court said:"Here the apparatus of the officers was not in any way connected with the telephone facilities, there was no interference with the communications system, there was no interception of any message. All that was heard through the microphone was what an eavesdropper, hidden in the hall, the bedroom, or the closet, might have heard. We do not suppose it is illegal to testify to what another person is heard to say merely because he is saying it into a telephone."In Goldman v. United States, 316 U. S. 129, 316 U. S. 134, it was said that"[t]he listening in the next room to the words of [the petitioner] as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the Act, than would have been the overhearing of the conversation by one sitting in the same room."In presenting here the petitioners' Fourth Amendment claim, counsel has painted with a broad brush. We are asked to reconsider our decisions in Goldman v. United States, supra, and On Lee v. United States, supra. We are told that reexamination of the rationale of those cases, and of Olmstead v. United States, 277 U. S. 438, from which they stemmed, is now essential in the light of recent and projected developments in the science of electronics. We are favoured with a description of "a device known as the parabolic microphone which can pick up a conversation three hundred yards away." We are told of a Page 365 U. S. 509 "still experimental technique whereby a room is flooded with a certain type of sonic wave," which, when perfected, "will make it possible to overhear everything said in a room without ever entering it or even going near it." We are informed of an instrument "which can pick up a conversation through an open office window on the opposite side of a busy street." [Footnote 2]The facts of the present case, however, do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society. Nor do the circumstances here make necessary a reexamination of the Court's previous decisions in this area. For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. As Judge Washington pointed out without contradiction in the Court of Appeals:"Every inference, and what little direct evidence there was, pointed to the fact that the spike made contact with the heating duct, as the police admittedly hoped it would. Once the spike touched the heating duct, the duct became in effect a giant microphone, running through the entire house occupied by appellants."107 U.S.App.D.C. at 150, 275 F.2d at 179.Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in Page 365 U. S. 510 which a closely divided Court has held that eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights. In Goldman v. United States, supra, the Court held that placing a detectaphone against an office wall in order to listen to conversations taking place in the office next door did not violate the Amendment. In On Lee v. United States, supra, a federal agent, who was acquainted with the petitioner, entered the petitioner's laundry and engaged him in an incriminating conversation. The agent had a microphone concealed upon his person. Another agent, stationed outside with a radio receiving set, was tuned in on the conversation, and, at the petitioner's subsequent trial, related what he had heard. These circumstances were held not to constitute a violation of the petitioner's Fourth Amendment rights.But in both Goldman and On Lee, the Court took pains explicitly to point out that the eavesdropping had not been accomplished by means of an unauthorized physical encroachment within a constitutionally protected area. In Goldman, there had, in fact, been a prior physical entry into the petitioner's office for the purpose of installing a different listening apparatus, which had turned out to be ineffective. The Court emphasized that this earlier physical trespass had been of no relevant assistance in the later use of the detectaphone in the adjoining office. 316 U.S. at 316 U. S. 134-135. And in On Lee, as the Court said, ". . . no trespass was committed." The agent went into the petitioner's place of business "with the consent, if not by the implied invitation, of the petitioner." 343 U.S. at 343 U. S. 751-752.The absence of a physical invasion of the petitioner's premises was also a vital factor in the Court's decision in Olmstead v. United States, 277 U. S. 438. In holding that the wiretapping there did not violate the Fourth Amendment, the Court noted that"[t]he insertions Page 365 U. S. 511 were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses."277 U.S. at 277 U. S. 457. "There was no entry of the houses or offices of the defendants." 277 U.S. at 277 U. S. 464. Relying upon these circumstances, the Court reasoned that "[t]he intervening wires are not part of [the defendant's] house or office any more than are the highways along which they are stretched." 277 U.S. at 277 U. S. 465.Here, by contrast, the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office -- a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances, we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. [Footnote 3] Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law. See Jones v. United States, 362 U. S. 257, 362 U. S. 266; On Lee v. United States, supra, at 343 U. S. 752; Hester v. United States, 265 U. S. 57; United States v. Jeffers, 342 U. S. 48, 342 U. S. 51; McDonald v. United States, 335 U. S. 451, 335 U. S. 454.The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U. S. 616, 116 U. S. 626-630. [Footnote 4] This Page 365 U. S. 512 Court has never held that a federal officer may, without warrant and without consent, physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.A distinction between the detectaphone employed in Goldman and the spike mike utilized here seemed to the Court of Appeals too fine a one to draw. The court was "unwilling to believe that the respective rights are to be measured in fractions of inches." But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said long ago bears repeating now:"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure."Boyd v. United States, 116 U. S. 616, 116 U. S. 635. We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an inch.Reversed

U.S. Supreme CourtSilverman v. United States, 365 U.S. 505 (1961)Silverman v. United StatesNo. 66Argued December 5, 1960Decided March 6, 1961365 U.S. 505SyllabusAt the trial in a federal district court in which petitioners were convicted of gambling offenses under the District of Columbia Code, there was admitted in evidence over their objection testimony of police officers describing incriminating conversations engaged in by petitioners at their alleged gambling establishment, which the officers had overheard by means of an electronic listening device pushed through the party wall of an adjoining house until it touched heating ducts in the house occupied by petitioners. Held: Such testimony should not have been admitted in evidence, and the convictions must be set aside. Pp. 365 U. S. 506-512.(a) Although much of what the officers heard and testified about consisted of petitioners' share of telephone conversations, it cannot be said that the officers intercepted those conversations and divulged their contents in violation of § 605 of the Communications Act of 1934. Pp. 365 U. S. 507-508.(b) On the record in this case, the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by petitioners, which violated their rights under the Fourth Amendment. Goldman v. United States, 316 U. S. 129, and On Lee v. United States, 343 U. S. 747, distinguished. Pp. 365 U. S. 509-512.107 U.S.App.D.C. 144, 275 F.2d 173, reversed. Page 365 U. S. 506

1983_83-173

STEVENS, J., filed an opinion concurring in the judgment, post, p. 468 U.S. 574.CHIEF JUSTICE BURGER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, III-A, III-C, and IV, and an opinion with respect to Parts II-B and III-B, in which JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR joined.We granted certiorari to decide whether the Due Process Clause of the Fifth Amendment was violated when a federal defendant was given a greater sentence after retrial following a successful appeal than he had been given after his original conviction because the sentencing court considered an intervening criminal conviction for acts committed prior to the original sentencing. Page 468 U. S. 561IPetitioner, an attorney, was indicted on four counts of mail fraud in violation of 18 U.S.C. § 1341. Prior to trial on these charges, he was indicted, tried, and convicted of the unrelated offense of knowingly and willfully making false statements in a passport application, in violation of 18 U.S.C. § 1542. At the sentencing hearing following petitioner's first conviction, the Government advised the court that charges were then pending against petitioner for mail fraud, and that petitioner previously had been convicted for failure to file a tax return. Petitioner's counsel replied that it would be inappropriate for the court to consider the pending mail fraud charges in its sentencing on the passport conviction because petitioner had yet to respond to the charges.The District Court Judge informed the parties that he would not consider the pending mail fraud charge in sentencing petitioner. The judge explained that he always considered prior convictions when sentencing a defendant, but that he did not consider pending charges:"[I]f judges at the time of considering prior convictions also consider pending cases . . . then if that pending case resulted in a conviction, one of the sentences would inevitably have been a pyramided sentence."App. 26. Following this colloquy, the judge sentenced petitioner on the passport offense to two years of imprisonment, all but six months of which he suspended in favor of three years of probation.Thereafter, pursuant to negotiations between petitioner and the Government, the Government dismissed the mail fraud indictment and substituted a one-count information charging petitioner with possession of counterfeit certificates of deposit, in violation of 18 U.S.C. § 480. Petitioner pleaded nolo contendere to this charge before another Federal District Court Judge in the Southern District of Florida, and was sentenced to two years' probation. App. to Brief for Petitioner 3-15. Page 468 U. S. 562The Court of Appeals for what was then the Fifth Circuit subsequently reversed petitioner's first conviction on grounds not material here, and remanded for a new trial. 641 F.2d 326 (1981). Petitioner was retried on that charge, and was again convicted. The presiding judge at the second trial was the same judge who had presided at petitioner's first trial on the passport offense and sentenced petitioner to the 2-year partially suspended sentence, with probation. This time, the judge sentenced petitioner to two years of imprisonment, none of which was suspended. The judge explained to petitioner and counsel for the Government that he was imposing a greater sentence because of petitioner's intervening conviction for possession of counterfeit certificates of deposit:"[W]hen I imposed sentence the first time, the only conviction on [petitioner's] record in this Court's eyes, this Court's consideration, was failure to file income tax returns, nothing else. I did not consider then, and I don't in other cases either, pending matters, because that would result in a pyramiding of sentences. At this time, he comes before me with two convictions. Last time, he came before me with one conviction."App. to Pet. for Cert. A-42. The judge rejected an argument by petitioner's counsel that, because the conduct underlying the conviction for possession of counterfeit certificates of deposit occurred prior to petitioner's original sentencing on the passport conviction, petitioner could not, under North Carolina v. Pearce, 395 U. S. 711 (1969), receive a sentence greater than that received for the original conviction.The Court of Appeals for the Eleventh Circuit affirmed, holding that petitioner's increased sentence"was based on objective, factual new evidence not previously considered, that it was neither motivated by judicial vindictiveness nor reasonably perceivable as having been so motivated. . . ."700 F.2d 663, 670 (1983). It held that the District Court Page 468 U. S. 563"followed precisely the procedural steps of [North Carolina v.] Pearce, affirmatively stating on the record his reason for enhancing the sentence, basing that reason on objective information concerning identifiable conduct of the defendant, and making the factual data on which his action was based part of the record so that its constitutional legitimacy [could] be fully reviewed on appeal."Id. at 667.The Court of Appeals rejected petitioner's argument that his sentence could not be increased after retrial based on the intervening counterfeiting conviction because the counterfeiting offense itself was not "conduct on the part of the defendant occurring after the time of the original sentencing," see Pearce, supra, at 395 U. S. 726. The Court of Appeals read Pearce to be concerned only with "vindictive sentencing, not defendant misbehavior between trials." The Court of Appeals noted that there was "no evidence whatsoever" that petitioner's sentence was increased out of vindictiveness. The court expressly declined to follow the contrary holdings of the Courts of Appeals for the Second and Ninth Circuits that an enhanced sentence must be based upon conduct of the defendant occurring after the original sentencing. See United States v. Markus, 603 F.2d 409 (CA2 1979); United States v. Williams, 651 F.2d 644 (CA9 1981).We granted certiorari, 464 U.S. 932 (1983), to resolve the conflict among the Circuits as to the meaning of this Court's holding in Pearce.IIAIt is now well established that a judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence. The sentencing court or jury must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed. Justice Black Page 468 U. S. 564 made this point when, writing for the Court in Williams v. New York, 337 U. S. 241, 337 U. S. 247 (1949), he observed that"[h]ighly relevant -- if not essential -- to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. "Allowing consideration of such a breadth of information ensures that the punishment will suit not merely the offense, but the individual defendant. Ibid.In Pearce, supra, however, the Court recognized at least one limitation on the discretion of the sentencing authority where a sentence is increased after reconviction following a successful appeal. Two separate cases were before the Court in Pearce. In both cases, the defendants successfully appealed their original convictions, and, on retrial, received greater sentences than they had received originally. The Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause barred imposition of the greater sentences after the reconvictions of the defendants. However, it held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences actually motivated by vindictive retaliation by the judge:"Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial."395 U.S. at 395 U. S. 725. Because fear of such vindictiveness might chill a defendant's decision to appeal or to attack his conviction collaterally, the Court went on to say that"due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge."Ibid. (footnote omitted).To prevent actual vindictiveness from entering into a decision and allay any fear on the part of a defendant that an increased sentence is in fact the product of vindictiveness, the Court fashioned what in essence is a "prophylactic rule," see Colten v. Kentucky, 407 U. S. 104, 407 U. S. 116 (1972), that"whenever Page 468 U. S. 565 a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear."395 U.S. at 395 U. S. 726. This rule has been read to"[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence."United States v. Goodwin, 457 U. S. 368, 457 U. S. 374 (1982). The rationale for requiring that "the factual data upon which the increased sentence is based" be made part of the record, of course, is that the "constitutional legitimacy" of the enhanced sentence may thereby be readily assessed on appeal. Ibid.In Pearce, the State had offered "no evidence" whatever to justify respondent Rice's increased sentence; it had not even "attempted to explain or justify" the greater penalty. 395 U.S. at 395 U. S. 726. Similarly, the State had advanced no reason for Pearce's sentence "beyond the naked power to impose it," ibid. Finding the record barren of any evidence to rebut the presumption of vindictiveness and support the increased sentences in either of the two cases in Pearce, the Court affirmed the judgments granting relief.BIn only one other circumstance has the Court identified a need to indulge a presumption of vindictiveness of the kind imposed in Pearce. In Blackledge v. Perry, 417 U. S. 21 (1974), Perry, while in state prison, was involved in a fight with a fellow inmate, and was charged with the misdemeanor offense of assault with a deadly weapon. He was convicted in the State's District Court Division and sentenced to a 6-month prison term to run consecutively to the term he was then serving. He appealed to the County Superior Court, where, under applicable state law, he had a right to a trial de novo.After Perry filed his notice of appeal, but before trial, the prosecutor obtained an indictment against Perry for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury. Perry pleaded guilty to the Page 468 U. S. 566 felony offense and was sentenced to a term of five to seven years' imprisonment to run consecutively with the sentence he was then serving. The effect of this was to increase Perry's sentence by the 17 months that he had already served under the sentence imposed by the District Court Division.We held that the indictment for the felony offense was impermissible under the Due Process Clause of the Fourteenth Amendment, stating that"the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case."Id. at 417 U. S. 27. The prosecutor, we noted,"clearly has a considerable stake in discouraging convicted misdemeanants from appealing and . . . obtaining a trial de novo. . . ."Ibid.Although there was no affirmative evidence tendered that the prosecutor brought the felony charge in bad faith, we agreed that, because the record was devoid of any explanation for the new indictment, relief should be granted. Consistent with Pearce, however, we explicitly observed that a different disposition would have been called for had the State advanced a legitimate nonvindictive justification for the greater charge. 417 U.S. at 417 U. S. 29, n. 7. This acknowledgment, of course, was no more than a reaffirmation that Pearce established a rebuttable presumption of vindictiveness, not an absolute prohibition on enhancement of sentence.Because of its "severity," see Goodwin, supra, at 457 U. S. 373, the Court has been chary about extending the Pearce presumption of vindictiveness when the likelihood of vindictiveness is not as pronounced as in Pearce and Blackledge. This reluctance is understandable, for, as we have noted, operation of the presumption often "block[s] a legitimate response to criminal conduct." 457 U.S. at 457 U. S. 373. In the four following cases, we expressly declined invitations to extend the presumption.We saw no need for application of the presumption in the context of Kentucky's two-tier trial system. Colten Page 468 U. S. 567 v. Kentucky, supra. Under Kentucky law, a defendant convicted of a misdemeanor in the inferior court had the right to a trial de novo in a court of general jurisdiction. We rejected the contention in Colten that the de novo tribunal was constitutionally prohibited from imposing a greater sentence than that imposed in the original trial. We held that "[t]he possibility of vindictiveness, found to exist in Pearce, [was] not inherent in the Kentucky two-tier system." Id. at 407 U. S. 116. While we believed that the prophylactic rule was unnecessary, we left open the possibility that a defendant might prove actual vindictiveness, and thereby establish a due process violation; we held only that the Kentucky trial de novo system, "as such," was not unconstitutional. Id. at 407 U. S. 119.Similarly, in Chaffin v. Stynchcombe, 412 U. S. 17 (1973), we rejected the need for the prophylactic Pearce presumption because we perceived as "de minimis" the possibility that an increased sentence by a jury upon reconviction after a new trial would be motivated by vindictiveness. Not only was the second jury in Chaffin unaware of the prior conviction, but, in contrast to the judge and the prosecutor in Pearce and Blackledge, it was thought unlikely that a jury would consider itself to have a "personal stake" in a prior conviction or a "motivation to engage in self-vindication." 412 U.S. at 412 U. S. 27. We emphasized in Chaffin that"Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process."Id. at 412 U. S. 25. Pearce, we explained, was only "premised on the apparent need to guard against vindictiveness in the resentencing process." 412 U.S. at 412 U. S. 25 (emphasis in original). Consequently, as in Colten, we noted that jury sentencing used as a means of "punishing or penalizing the assertion of protected rights" might violate due process. 412 U.S. at 412 U. S. 32, n. 20. Page 468 U. S. 568In Bordenkircher v. Hayes, 434 U. S. 357 (1978), we held that due process is not implicated when a prosecutor threatens to seek conviction on a greater offense if the defendant does not plead guilty and in fact does so when the defendant proceeds to trial. We declined to characterize this conduct as "punishment or retaliation" offensive to due process, id. at 434 U. S. 363, instead noting that such was a mere byproduct of the "give-and-take negotiation common in plea bargaining.'" Id. at 434 U. S. 362 (quoting Parker v. North Carolina, 397 U. S. 790, 397 U. S. 809 (1970) (BRENNAN, J., dissenting)). As in Colten and Chaffin, we did not rule out, however, the possibility that a defendant could establish a due process violation by proof of actual vindictiveness. See United States v. Goodwin, 457 U.S. at 457 U. S. 380, n. 12.Most recently, we held in United States v. Goodwin, supra, that the Pearce presumption of vindictiveness is unwarranted where a prosecutor adds a felony charge before trial to a defendant's misdemeanor charge after the defendant demands a jury trial on the misdemeanor charge. We thought it highly unlikely"that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest."457 U.S. at 457 U. S. 384. Consistent with our earlier cases, we again explicitly recognized"the possibility that a defendant in an appropriate case might prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do."Ibid. (footnote omitted).If it was not clear from the Court's holding in Pearce, it is clear from our subsequent cases applying Pearce that due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. In Pearce and in Blackledge, the Court "presumed" that the increased sentence and charge were the products of actual vindictiveness aroused by the defendants' appeals. It held that the defendants' right to due process Page 468 U. S. 569 was violated not because the sentence and charge were enhanced, but because there was no evidence introduced to rebut the presumption that actual vindictiveness was behind the increases; in other words, by operation of law, the increases were deemed motivated by vindictiveness. In Colten, Chaffin, Bordenkircher, and Goodwin, on the other hand -- where the presumption was held not to apply -- we made clear that a due process violation could be established only by proof of actual vindictiveness.In sum, where the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.IIIAHere, petitioner in effect received a greater sentence of confinement following retrial than he had originally received. This was sufficient to engage the presumption of Pearce. In sharp contrast to Pearce and Blackledge, however, the trial judge here carefully explained his reasons for imposing the greater sentence. The care with which the trial judge approached the resentencing is clear from the record, and it bears repeating:"[W]hen I imposed sentence the first time, the only conviction on [petitioner's] record in this Court's eyes, this Court's consideration, was failure to file income tax returns, nothing else. I did not consider then ,and I don't in other cases either, pending matters, because that would result in a pyramiding of sentences. At this time, he comes before me with two convictions. Last time, he came before me with one conviction."Consideration of a criminal conviction obtained in the interim between an original sentencing and a sentencing Page 468 U. S. 570 after retrial is manifestly legitimate. This amply rebuts any presumption of vindictiveness. Here, the trial judge's justification is plain even from the record of petitioner's first sentencing proceeding; the judge informed the parties that, although he did not consider pending charges when sentencing a defendant, he always took into account prior criminal convictions. This, of course, was proper; indeed, failure to do so would have been inappropriate.Petitioner does not charge that the judge was vindictive. Rather, he argues that any consideration of his intervening conviction was foreclosed by the plain language of Pearce. Petitioner points to the passage in Pearce stating that the reasons posited by a court for increasing a defendant's sentence on retrial"must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."395 U.S. at 395 U. S. 726 (emphasis added). His contention is that the "conduct" for which he was convicted, i.e., possession of counterfeit certificates of deposit, occurred prior to the time of his original sentencing proceeding, and thus could not be considered by the trial judge.Pearce is not without its ambiguities; the passage recited by petitioner, for example, is said by petitioner to conflict with the following language in the same section of the opinion:"A man who is retried after his first conviction has been set aside may be acquitted. If convicted, he may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed. . . ."". . . A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, Page 468 U. S. 571 and mental and moral propensities.' Williams v. New York, 337 U. S. 241, 337 U. S. 245. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources."Id. at 395 U. S. 722-723 (emphasis added).BIn addition, two of the separate opinions in Pearce suggest that the Court did not intend to confine the sentencing authority's consideration to "conduct" occurring subsequent to the first sentencing proceeding. Justice Douglas characterized the Court's holding as allowing a greater sentence to be justified by "events subsequent to the first trial," and by "information that has developed after the initial trial." Id. at 395 U. S. 736, and n. 6 (concurring opinion). Justice Black did not refer to a temporal limitation on the information that could be considered. He appeared to believe that the sole requirement imposed by the majority was that the "state courts articulate their reasons for imposing particular sentences." Id. at 395 U. S. 741 (opinion concurring in part and dissenting in part).CWe find it unnecessary, however, to reconcile these apparent ambiguities. In the two cases before the Court in Pearce, there was no asserted explanation or justification for the heightened sentence. This case, on the other hand, squarely presents the question of the scope of information that may be relied upon by a sentencing authority to justify an increased sentence after retrial.We conclude that any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original sentencing may not be considered upon sentencing after retrial is inconsistent with the Pearce opinion as a whole. There is no logical support for a distinction between Page 468 U. S. 572 "events" and "conduct" of the defendant occurring after the initial sentencing insofar as the kind of information that may be relied upon to show a nonvindictive motive is concerned. This is clear from Williams v. New York, 337 U. S. 241 (1949), which provides that the underlying philosophy of modern sentencing is to take into account the person as well as the crime by considering "information concerning every aspect of a defendant's life." Id. at 337 U. S. 250.Even without a limitation on the type of factual information that may be considered, the requirement that the sentencing authority or prosecutor detail the reasons for an increased sentence or charge enables appellate courts to ensure that a nonvindictive rationale supports the increase. A contrary conclusion would result in the needless exclusion of relevant sentencing information from the very authority in whom the sentencing power is vested. The response of the Court of Appeals to petitioner's argument was entirely correct: "No reason exists for applying a phrase in the Pearce guidelines to circumstances bearing no relation to the purpose of those guidelines." 700 F.2d at 668.IVWe hold that after retrial and conviction following a defendant's successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings. 395 U.S. at 395 U. S. 726. *Affirmed

U.S. Supreme CourtWasman v. United States, 468 U.S. 559 (1984)Wasman v. United StatesNo. 83-173Argued March 20, 1984Decided July 3, 1984468 U.S. 559SyllabusPrior to trial on a federal indictment charging petitioner with mail fraud, he was indicted, tried, and convicted of the unrelated federal offense of knowingly and willfully making false statements in a passport application. At the sentencing hearing, the trial judge stated that, pursuant to his usual practice, he would not consider the pending mail fraud charge in passing sentence but would consider only prior convictions. Petitioner was then sentenced to two years' imprisonment, all but six months of which was suspended in favor of three years of probation. Thereafter, the mail fraud indictment was dismissed, and an information charging petitioner with possession of counterfeit certificates of deposit was substituted. Petitioner pleaded nolo contendere to that charge before a different District Court Judge, and was sentenced to two years' probation. Subsequently, the Court of Appeals reversed petitioner's conviction for the passport offense, and petitioner was retried on the charge before the same trial judge and was again convicted. In imposing a sentence of two years' imprisonment, none of which was suspended, the trial judge explained that he imposed the greater sentence because of petitioner's intervening conviction for possession of counterfeit certificates of deposit. The judge rejected petitioner's argument that, because the conduct underlying the conviction for possession of counterfeit certificates of deposit occurred prior to petitioner's original sentencing on the passport conviction, he could not, under North Carolina v. Pearce, 395 U. S. 711, receive a sentence greater than that received for the original conviction. The Court of Appeals affirmed.Held: After retrial and conviction following a defendant's successful appeal, a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings. Pp. 468 U. S. 563-565, 468 U. S. 569-571, 468 U. S. 571-572.(a) In Pearce, supra, the Court held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences motivated by vindictive retaliation by the judge after reconviction following a successful appeal, and that, whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Thus, Pearce establishes a rebuttable Page 468 U. S. 560 presumption of vindictiveness, not an absolute prohibition against enhancement of sentence. Pp. 468 U. S. 563-565.(b) Here, the fact that petitioner in effect received a greater sentence of confinement following retrial than he had originally received was sufficient to engage the presumption of Pearce. However, the trial judge carefully explained his reasons for imposing the greater sentence, and his consideration of the intervening conviction was manifestly legitimate, amply rebutting any presumption of vindictiveness. Pp. 468 U. S. 569-571.700 F.2d 663, affirmed.BURGER, C.J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, III-A, III-C, and IV, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion with respect to Parts II-B and III-B, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined, post, p. 468 U. S. 573. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined,post, p. 468 U.S. 574. STEVENS, J., filed an opinion concurring in the judgment, post, p. 468 U.S. 574.

1994_93-7901

Syllabuswould consider fairly all of the evidence presented and would conscientiously obey the trial court's instructions requiring proof beyond a reasonable doubt. The Carrier standard, although requiring a substantial showing, is by no means equivalent to the standard governing review of insufficient evidence claims. Jackson v. Virginia, 443 U. S. 307, distinguished. In applying the Carrier standard to Schlup's request for an evidentiary hearing, the District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial. The court is not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment, but may consider how the submission's timing and the affiants' likely credibility bear on the probable reliability of that evidence. Pp.327-332.11 F.3d 738, vacated and remanded.STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 332. REHNQUIST, C. J., filed a dissenting opinion, in which KENNEDY and THOMAS, JJ., joined, post, p. 334. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 342.Sean D. O'Brien argued the cause for petitioner. With him on the briefs were Anthony G. Amsterdam, Randy Hertz, and Timothy K. Ford.Jeremiah W (Jay) Nixon, Attorney General of Missouri, argued the cause for respondent. With him on the brief were Stephen D. Hawke and Frank A. Jung, Assistant Attorneys General. **Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Dane R. Gillette, Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General, James H. Evans, Attorney General of Alabama, Bruce M. Botelho, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Gale A. Norton, Attorney General of Colorado, John M. Bailey, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Larry EchoHawk, Attorney General of Idaho, Roland W Burris, Attorney General of Illinois, Chris Gorman, Attorney General of Kentucky, Richard p. Ieyoub, Attorney General of Louisiana, Mike Moore, Attorney General of Mississippi, Joseph P. Mazurek, Attorney General of Montana, Don301JUSTICE STEVENS delivered the opinion of the Court. Petitioner Lloyd E. Schlup, Jr., a Missouri prisoner currently under a sentence of death, filed a second federal habeas corpus petition alleging that constitutional error deprived the jury of critical evidence that would have established his innocence. The District Court, without conducting an evidentiary hearing, declined to reach the merits of the petition, holding that petitioner could not satisfy the threshold showing of "actual innocence" required by Sawyer v. Whitley, 505 U. S. 333 (1992). Under Sawyer, the petitioner must show "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner" guilty. Id., at 336. The Court of Appeals affirmed. We granted certiorari to consider whether the Sawyer standard provides adequate protection against the kind of miscarriage of justice that would result from the execution of a person who is actually innocent.IOn February 3, 1984, on Walk 1 of the high security area of the Missouri State Penitentiary, a black inmate named Arthur Dade was stabbed to death. Three white inmates fromStenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Deborah T. Poritz, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Michael F. Easley, Attorney General of North Carolina, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Ernest D. Preate, Jr., Attorney General of Pennsylvania, T. Travis Medlock, Attorney General of South Carolina, Mark Barnett, Attorney General of South Dakota, Charles W Burson, Attorney General of Tennessee, Dan Morales, Attorney General of Texas, Jan Graham, Attorney General of Utah, James S. Gilmore III, Attorney General of Virginia, and Joseph B. Meyer, Attorney General of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.Harold R. Tyler, Jr., and Eric M. Freedman filed a brief of amici curiae for Five Innocent Former Death Row Inmates et al.302Walk 2, including petitioner, were charged in connection with Dade's murder.At petitioner's trial in December 1985, the State's evidence consisted principally of the testimony of two corrections officers who had witnessed the killing. On the day of the murder, Sergeant Roger Flowers was on duty on Walk 1 and Walk 2, the two walks on the lower floor of the prison's high security area. Flowers testified that he first released the inmates on Walk 2 for their noon meal and relocked their cells. After unlocking the cells to release the inmates on Walk 1, Flowers noticed an inmate named Rodnie Stewart moving against the flow of traffic carrying a container of steaming liquid. Flowers watched as Stewart threw the liquid in Dade's face. According to Flowers, Schlup then jumped on Dade's back, and Robert O'Neal joined in the attack. Flowers shouted for help, entered the walk, and grabbed Stewart as the two other assailants fled.Officer John Maylee witnessed the attack from Walk 7, which is three levels and some 40-50 feet above Walks 1 and 2.1 Maylee first noticed Schlup, Stewart, and O'Neal as they were running from Walk 2 to Walk 1 against the flow of traffic. According to Maylee's testimony, Stewart threw a container of liquid at Dade's face, and then Schlup jumped on Dade's back. O'Neal then stabbed Dade several times in the chest, ran down the walk, and threw the weapon out a window. Maylee did not see what happened to Schlup or Stewart after the stabbing.The State produced no physical evidence connecting Schlup to the killing, and no witness other than Flowers and Maylee testified to Schlup's involvement in the murder.21 Maylee was unavailable to testify at Schlup's trial. Testimony from Maylee's pretrial deposition was admitted in evidence and was read to the jury.2 In contrast, the evidence of the involvement of Stewart and O'Neal in Dade's murder was substantial. Stewart, for example, was apprehended303Schlup's defense was that the State had the wrong man.3 He relied heavily on a videotape from a camera in the prisoners' dining room. The tape showed that Schlup was the first inmate to walk into the dining room for the noon meal, and that he went through the line and got his food. Approximately 65 seconds after Schlup's entrance, several guards ran out of the dining room in apparent response to a distress call. Twenty-six seconds later, O'Neal ran into the dining room, dripping blood.4 Shortly thereafter, Schlup and O'Neal were taken into custody.Schlup contended that the videotape, when considered in conjunction with testimony that he had walked at a normal pace from his cell to the dining room,5 demonstrated that he could not have participated in the assault. Because the videotape showed conclusively that Schlup was in the dining room 65 seconds before the guards responded to the distress call, a critical element of Schlup's defense was determining when the distress call went out. Had the distress call sounded shortly after the murder, Schlup would not have had time to get from the prison floor to the dining room, andby Flowers during the struggle itself. And when O'Neal was taken into custody, his clothes were covered with blood and he was bleeding from lacerations on his right hand.3 Schlup did not testify at the guilt phase of the trial. At the sentencing hearing, Schlup did testify and maintained his innocence of the offense. He continued to maintain his innocence even after the jury had sentenced him to death.4 After stabbing Dade, O'Neal broke a window with his hand and threw the knife out the window. That resulted in multiple lacerations to his right hand. Before leaving the prison floor, O'Neal paused briefly at a utilities sink on Walk 2 to try to wash off the blood, and then continued on to the dining room.O'Neal was followed into the dining room by inmate Randy Jordan, who is identified in some affidavits attesting to petitioner's innocence as the third participant in the crime. See infra, at 308-309. However, Jordan's name was not mentioned at Schlup's trial.5 Schlup's cell was at the end of Walk 2, closest to the dining room.304thus he could not have participated in the murder. Conversely, had there been a delay of several minutes between the murder and the distress call, Schlup might have had sufficient time to participate in the murder and still get to the dining room over a minute before the distress call went out.6The prosecutor adduced evidence tending to establish that such a delay had in fact occurred. First, Flowers testified that none of the officers on the prison floor had radios, thus implying that neither he nor any of the other officers on the floor was able to radio for help when the stabbing occurred. Second, Flowers testified that after he shouted for help, it took him "a couple [of] minutes" to subdue Stewart.7 Flowers then brought Stewart downstairs, encountered Captain James Eberle, and told Eberle that there had been a "disturbance."8 Eberle testified that he went upstairs to the prison floor, and then radioed for assistance. Eberle estimated that the elapsed time from when he first saw Flowers6 A necessary element of Schlup's defense was that Flowers and Maylee were mistaken in their identification of Schlup as one of the participants in the murder. Schlup suggested that Flowers had taken a visitor to Schlup's cell just 30 minutes before the murder. Schlup argued that Flowers had therefore had Schlup "on the brain," Trial Tr. 493-494, thus explaining why, in the confusion surrounding the murder, Flowers might have mistakenly believed that he had seen Schlup.Schlup argued that Maylee's identification was suspect because Maylee was three floors away from the murder and did not have an unobstructed view of the murder scene. Schlup further suggested that Maylee's identification of Schlup had been influenced by a postincident conversation between Maylee and another officer who had talked to Flowers.Schlup also argued that there were inconsistencies between the description of the murder provided by Flowers and that provided by Maylee. For example, Maylee testified that he saw Schlup, Stewart, and O'Neal running together against the flow of traffic, and that the three men had stopped when they encountered Dade. See id., at 332. Flowers noticed only Stewart running against the flow of traffic, and he testified that O'Neal and Schlup were at the other end of the walk on the far side of Dade. See id., at 249.7Id., at 243. 8Id., at 245.305until he radioed for help was "approximately a minute." 9 The prosecution also offered testimony from a prison investigator who testified that he was able to run from the scene of the crime to the dining room in 33 seconds and to walk the distance at a normal pace in a minute and 37 seconds.Neither the State nor Schlup was able to present evidence establishing the exact time of Schlup's release from his cell on Walk 2, the exact time of the assault on Walk 1, or the exact time of the radio distress call. Further, there was no evidence suggesting that Schlup had hurried to the dining room.10After deliberating overnight, the jury returned a verdict of guilty. Following the penalty phase, at which the victim of one of Schlup's prior offenses testified extensively about the sordid details of that offense,l1 the jury sentenced Schlup to death. The Missouri Supreme Court affirmed Schlup's conviction and death sentence, State v. Schlup, 724 S. W. 2d 236 (Mo. 1987), and this Court denied certiorari, Schlup v. Missouri, 482 U. S. 920 (1987).129Id., at 212, 214-215.10 In fact, the evidence presented was to the contrary. Two inmates, Bernard Bailey and Arthur St. Peter, testified that they were behind Schlup in line on the way to the dining room and that they had all walked at a normal pace. Lieutenant Robert Faherty, the corrections officer on duty in the corridor leading from the prison floor to the dining room, testified that Schlup was the first inmate into the corridor on the day of the murder. Faherty also testified that he saw Schlup pause and yell something out one of the windows in the corridor, and that he told Schlup to move on. Faherty testified that nothing else unusual had occurred while Schlup was in the corridor.On the other hand, both Maylee's testimony and the videotape establish that O'Neal ran from Walk 1 to the dining room.11 Schlup had been convicted of sodomy and assault in connection with a series of attacks on a cellmate while he was being held in a county jail.12 The other alleged participants in the crime were convicted in earlier, separate trials. O'Neal, who did the stabbing, was sentenced to death, see State v. O'Neal, 718 S. W. 2d 498 (Mo. 1986); Stewart, who was apprehended by Flowers at the scene, was sentenced to 50 years' imprisonment306IIOn January 5, 1989, after exhausting his state collateral remedies,13 Schlup filed a pro se petition for a federal writ of habeas corpus, asserting the claim, among others, that his trial counsel was ineffective for failing to interview and to call witnesses who could establish Schlup's innocence.14 The District Court concluded that Schlup's ineffectiveness claim was procedurally barred, and it denied relief on that claim without conducting an evidentiary hearing.15 The Court of Appeals affirmed, though it did not rely on the alleged procedural bar. Schlup v. Armontrout, 941 F.2d 631 (CA8 1991). Instead, based on its own examination of the record, the Court found that trial counsel's performance had not been constitutionally ineffective, both because counsel had reviewed statements that Schlup's potential witnesses had given to prison investigators, and because the testimony of those witnesses "would be repetitive of the testimony to be presented at trial." Id., at 639.16 But cf. 11 F.3d 738, 746,without eligibility for probation or parole, see State v. Stewart, 714 S. W. 2d 724 (Mo. App. 1986).13 The denial of Schlup's motion for postconviction relief was affirmed by the Missouri Supreme Court on October 18, 1988. See Schlup v. State, 758 S. W. 2d 715 (Mo. 1988).14 Schlup identified three nonparticipant witnesses who he claimed had witnessed the murder: Van Robinson, Lamont Griffin Bey, and Ricky McCoy. Schlup also faulted trial counsel for failing to interview Randy Jordan, whom Schlup identified as the third participant in the murder.15 Schlup had presented the ineffectiveness claim in his state postconviction motion, but had failed to raise it on appeal. See Schlup v. Armontrout, No. 89-0020C(3), 1989 U. S. Dist. LEXIS 18285, *11-*13 (ED Mo., May 31, 1989).Schlup's first federal habeas petition also raised several other claims, all of which were denied either as procedurally barred or on the merits.16 The Court of Appeals also addressed Schlup's other claims. Over Judge Heaney's dissent, the court rejected Schlup's claim that his counsel had been ineffective for failing to adduce available mitigating evidence at the penalty hearing. Schlup v. Armontrout, 941 F. 2d, at 639. The court307n. 3 (CAS 1993) (Heaney, J., dissenting) (challenging the conclusion that such testimony would have been "repetitive"). The Court of Appeals denied a petition for rehearing and suggestion for rehearing en banc, Schlup v. Armontrout, 945 F.2d 1062 (1991), and we denied a petition for certiorari, 503 U. S. 909 (1992).On March 11, 1992, represented by new counsel, Schlup filed a second federal habeas corpus petition. That petition raised a number of claims, including that (1) Schlup was actually innocent of Dade's murder, and that his execution would therefore violate the Eighth and Fourteenth Amendments, cf. Herrera v. Collins, 506 U. S. 390 (1993); (2) trial counsel was ineffective for failing to interview alibi witnesses; and (3) the State had failed to disclose critical exculpatory evidence. The petition was supported by numerous affidavits from inmates attesting to Schlup's innocence.The State filed a response arguing that various procedural bars precluded the District Court from reaching the merits of Schlup's claims and that the claims were in any event meritless. Attached to the State's response were transcripts of inmate interviews conducted by prison investigators just five days after the murder. One of the transcripts contained an interview with John Green, an inmate who at the time was the clerk for the housing unit. In his interview, Green stated that he had been in his office at the end of the walks when the murder occurred. Green stated that Flowers hadalso rejected Schlup's separate claim challenging the denial of his request for an evidentiary hearing in the District Court. Schlup had requested such a hearing to develop evidence so that he could in turn challenge the failure of the state court to grant his request for a continuance of his state postconviction proceedings. Schlup had requested that continuance to obtain additional evidence to support his claim of innocence. The Court of Appeals held that Schlup's challenge to the state court's failure to grant a continuance was not cognizable in a federal habeas corpus action. Id., at 642.308told him to call for help, and that Green had notified base of the disturbance shortly after it began.17Schlup immediately filed a traverse arguing that Green's affidavit provided conclusive proof of Schlup's innocence. Schlup contended that Green's statement demonstrated that a call for help had gone out shortly after the incident. Because the videotape showed that Schlup was in the dining room some 65 seconds before the guards received the distress call, Schlup argued that he could not have been involved in Dade's murder. Schlup emphasized that Green's statement was not likely to have been fabricated, because at the time of Green's interview, neither he nor anyone else would have realized the significance of Green's call to base. Schlup tried to buttress his claim of innocence with affidavits from inmates who stated that they had witnessed the event and that Schlup had not been present.18 Two of those affi-l7"BROOKS: John, whenever you saw Dade fall what did you do then?"GREEN: I stepped out of the office and I heard Sgt. Flowers calling for officers cause they had had a fight. Couldn't get nobody so he told me to call base to notify them of the fight and that's what I did."DEARIXON: That's all I have, John. Thank you very much." Response to Order To Show Cause Why a Writ of Habeas Corpus Should Not Be Granted, Exhibit T (Transcripts of Inmate Interviews), p. 31.If the total time required for Green to respond to Flowers' instruction and for the base to send out a distress call in response to Green's call amounted to a mere 15-17 seconds, O'Neal running at top speed would have had 8-10 seconds to wash his hands and still would have been able to arrive in the dining room some 26 seconds after the distress call.18 In the District Court, Schlup attempted to supplement the record with several detailed affidavits from inmates attesting to his innocence. For example, Lamont Griffin Bey, a black inmate, submitted an affidavit in which he stated: "The first thing I saw of the fight was Rodney [sic] Stewart throw liquid in Arthur Dade's face, and O'Neal stab him .... I knew Lloyd Schlup at that time, but we were not friends. Lloyd Schlup was not present at the scene of the fight." Affidavit of Lamont Griffin Bey, pp. 2-3 (Apr. 7, 1993). Griffin Bey also stated: ''When this happened, there was a lot of racial tension in the prison .... I would not stick my neck out to help a white person under these circumstances normally, but309davits suggested that Randy Jordan-who occupied the cell between O'Neal and Stewart in Walk 2, and who, as noted above, see n. 4, supra, is shown on the videotape arriving at lunch with O'Neal-was the third assailant.On August 23, 1993, without holding a hearing, the District Court dismissed Schlup's second habeas petition and vacated the stay of execution that was then in effect. The District Court concluded that Schlup's various filings did not provide adequate cause for failing to raise his new claims more promptly. Moreover, the court concluded that Schlup had failed to meet the Sawyer v. Whitley, 505 U. S. 333 (1992), standard for showing that a refusal to entertain those claims would result in a fundamental miscarriage of justice. In its discussion of the evidence, the court made no separate comment on the significance of Green's statement.19On September 7, 1993, petitioner filed a motion to set aside the order of dismissal, again calling the court's attention toI am willing to testify because I know Lloyd Schlup is innocent." Id., at 4.Similarly, inmate Donnell White swore an affidavit in which he stated:"Three white guys were coming the opposite way. One of them had a tumbler of something that he threw in [Dade's] face. One or two of the other ones started sticking [Dade] with an ice-pick-type knife." Affidavit of Donnell White, at 1 (Apr. 21, 1993). White further stated: "I have seen Lloyd Schlup, and I know who he is. He is definitely not one of the guys I saw jump Arthur Dade .... I know that one of the three men involved has never been prosecuted, and I know that Lloyd Schlup is innocent. I barely know Lloyd Schlup, and I have no reason to lie for him. I told the investigators that I didn't see anything because I didn't want to get involved." Id., at 3.Though the District Court ultimately denied Schlup's motion to supplement the record, the inmate affidavits are part of the record on appeal.19 The District Court focused primarily on the "suspect" nature of affidavits that are produced after a long delay, cf. Herrera v. Collins, 506 U. S. 390, 423-424 (1993) (O'CONNOR, J., concurring), and that come from inmates. The court concluded that the affidavits presented by Schlup, when considered against the positive identifications made by Flowers and Maylee, failed to constitute a sufficiently persuasive showing of actual innocence. App.79.310Green's statement. Two days later, Schlup filed a supplemental motion stating that his counsel had located John Green 20 and had obtained an affidavit from him. That affidavit confirmed Green's postincident statement that he had called base shortly after the assault. Green's affidavit also identified Jordan rather than Schlup as the third assailant.2120Green had been released from prison on January 29, 1986. Green Mfidavit, at 4 (Sept. 7, 1993).21 Green's affidavit stated:"I looked down one walk, and I saw Randy Jordan holding Arthur Dade.Jordan was standing behind Dade, and had Dade's arms pinned to his sides from behind. I saw Robert O'Neal stab Dade several times in the chest while Jordan was holding him."Dade broke loose and ran straight toward me. I saw him collide with Rodnie Stewart and fall to the ground near the paint storage area. Sergeant Flowers hollered for help. I think there was so much noise that he didn't think the other guards in the Housing Unit heard him, so he told me to call base. He was on his way to break up the fight when he told me to call base. I immediately went into the office, picked up the phone, and called base."A sergeant at the base picked up the phone. I told him there was a fight in Housing Unit 5A. He said something like, 'OK,' and I hung up the phone." Id., at 2-3.Green stated that his call to base came "within seconds of Dade hitting the ground. It could not have been more than a half minute or a minute after he was stabbed by Jordan and O'Neal. It happened very fast." Id., at 4.Green also explained why he had earlier denied witnessing the murder:"I told [investigators] I didn't [see the murder] because I was concerned about my safety. I know that Jordan and O'Neal were in the Aryan Brotherhood, and if I said I saw them do it, they could easily have me killed." Id., at 3-4.Green continued: "If I had been contacted before Schlup's trial, I would have told his attorney that he was not there when Dade was stabbed, and I would have testified that I called base within seconds after Dade hit the ground. I might have been reluctant to snitch on Jordan and O'Neal. I'm not afraid now because I haven't been in prison for more than 71/2 years, and I have been working steadily ever since. I have no intention of going back to prison." Id., at 6.311The District Court denied the motion and the supplemental motion without opinion.Petitioner then sought from the Court of Appeals a stay of execution pending the resolution of his appeal. Relying on Justice Powell's plurality opinion in Kuhlmann v. Wilson, 477 U. S. 436 (1986), Schlup argued that the District Court should have entertained his second habeas corpus petition, because he had supplemented his constitutional claim "with a colorable claim of factual innocence." Id., at 454.On October 15, 1993, the Court of Appeals denied the stay application. In an opinion that was subsequently vacated, the majority held that petitioner's claim of innocence was governed by the standard announced in Sawyer v. Whitley, 505 U. S. 333 (1992), and it concluded that under that standard, the evidence of Schlup's guilt that had been adduced at trial foreclosed consideration of petitioner's current constitutional claims.22Judge Heaney dissented. Relying on Green's affidavit, the videotape, and the affidavits of four other eyewitnesses, Judge Heaney concluded that the petitioner had met both the Kuhlmann standard and a proper reading of the Sawyer standard.23 Cf. infra, at 331. He believed that the District Court should have conducted an evidentiary hearing in which the affiants would have been subjected to examination by the State so "their credibility could be accurately determined." 24In the meantime, petitioner's counsel obtained an affidavit from Robert Faherty, the former lieutenant at the prison whom Schlup had passed on the way to lunch on the day of the murder and who had reprimanded Schlup for shouting out the window. See n. 10, supra. Faherty's affidavit stated that Schlup had been in Faherty's presence for at least22 Schlup v. Delo, No. 93-3272, 1993 WL 409815, *3 (CA8, Oct. 15, 1993). 23Id., at *7.24Id., at *5.312two and a half minutes; that Schlup was walking at a leisurely pace; and that Schlup "was not perspiring or breathing hard, and he was not nervous." Affidavit of Robert Faherty " 4, 6 (Oct. 26, 1993).25On November 15, 1993, the Court of Appeals vacated its earlier opinion and substituted a more comprehensive analysis of the law to support its decision to deny Schlup's request for a stay. 11 F.3d 738. The majority adhered to its earlier conclusion that Sawyer stated the appropriate standard for evaluating Schlup's claim of actual innocence. 11 F. 3d, at 740. The opinion also contained an extended discussion of Schlup's new evidence. The court noted in particular that Green's new affidavit was inconsistent in part with both his prison interview and his testimony at the Stewart trial. Id., at 742. The court viewed Faherty's affidavit as simply "an effort to embellish and expand upon his testimony" and concluded "that a habeas court should not permit retrial on such a basis." Id., at 743.Judge Heaney again dissented, concluding that Schlup had "presented truly persuasive evidence that he is actually innocent," and that the District Court should therefore have addressed the merits of Schlup's constitutional claims. Id., at 744. Judge Heaney also argued that Schlup's ineffectiveness claim was substantial. He noted that Schlup's trial counsel failed to conduct individual interviews with Griffin Bey, McCoy, or any of the other inmates who told investigators that they had seen the killing. Moreover, counsel failed to interview Green about his statement that he had called25 Faherty had testified at Schlup's trial, but he had not been asked about the significant details of his encounter with Schlup that are recited in his affidavit. Faherty Affidavit' 9 (Oct. 26, 1993). Faherty left the Department of Corrections in 1989. He stated in his affidavit that he had been prompted to come forward after hearing about Schlup's case through an article in the local newspaper. Id.,' 11.313base. In fact, counsel apparently failed to conduct individual interviews with any of the potential witnesses to the crime.Judge Heaney adhered to his conclusion that Schlup's counsel was ineffective, even though counsel allegedly had reviewed 100 interviews conducted by prison investigators.26 Judge Heaney argued that counsel's review of the interview transcripts-rather than demonstrating counsel's effectiveness-made counsel's failure to conduct his own interviews with Green and the few inmates who admitted seeing the attack even more troubling. See id., at 747, n. 5. Judge Heaney concluded that Schlup's case should be remanded to the District Court to conduct an evidentiary hearing and, if appropriate, to address the merits of Schlup's constitutional claims.On November 17, 1993, the Court of Appeals denied a suggestion for rehearing en banco Dissenting from that denial, three judges joined an opinion describing the question whether the majority should have applied the standard announced in Sawyer v. Whitley, supra, rather than the Kuhlmann standard as "a question of great importance in habeas corpus jurisprudence." 11 F. 3d, at 755. We granted certiorari to consider that question. 511 U. S. 1003 (1994).21IIIAs a preliminary matter, it is important to explain the difference between Schlup's claim of actual innocence and the26 The transcripts of the individual interviews conducted by the prison investigators were relatively brief: The entire written transcript of the investigators' interview with Green, for example, takes up less than one page. The vast majority of the interviews consisted of simple statements that the interviewee had not seen Dade's killing.27 Though the Court of Appeals denied Schlup's motion for a stay of execution, the Governor of Missouri granted a stay one day before Schlup's execution date. The Governor then ordered a Board of Inquiry to conduct clemency proceedings. Those proceedings are apparently continuing.314claim of actual innocence asserted in Herrera v. Collins, 506 U. S. 390 (1993). In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment.28 Under petitioner's theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a "constitutionally intolerable event." Id., at 419 (O'CONNOR, J., concurring).Schlup's claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, see Strickland v. Washington, 466 U. S. 668 (1984), and the withholding of evidence by the prosecution, see Brady v. Maryland, 373 U. S. 83 (1963), denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish "cause and prejudice" sufficient to excuse his failure to present his evidence in support of his first federal petition, see McCleskey v. Zant, 499 U. S. 467, 493-494 (1991),29 Schlup may obtain review of his constitutional claims only if he falls28 In Herrera, we assumed for the sake of argument that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." 506 U. S., at 417.29 Schlup argued in the District Court that the lack of diligence of his appointed postconviction counsel, coupled with problems created by the State, established cause and prejudice. See App. 38-43 (state postconviction proceedings); id., at 43-45 (proceedings on first federal habeas). That argument was rejected by the District Court and the Court of Appeals, and petitioner does not renew it in this Court.315within the "narrow class of cases ... implicating a fundamental miscarriage of justice," id., at 494. Schlup's claim of innocence is offered only to bring him within this "narrow class of cases."Schlup's claim thus differs in at least two important ways from that presented in Herrera. First, Schlup's claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his Strickland and Brady claims.30 Schlup's claim of innocence is thus "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, 506 U. S., at 404; see also 11 F. 3d, at 740.31More importantly, a court's assumptions about the validity of the proceedings that resulted in conviction are fundamentally different in Schlup's case than in Herrera's. In Herrera, petitioner's claim was evaluated on the assumption that the trial that resulted in his conviction had been error free. In such a case, when a petitioner has been "tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants," 506 U. S., at 419 (O'CONNOR, J., concurring), it is appropriate to apply an30 In light of our conclusion that the courts below applied the wrong standard in evaluating Schlup's gateway innocence claim, see infra, at 326-327, we need not express a view concerning the merits of Schlup's underlying constitutional claims.31 In his submissions to the federal courts, Schlup has consistently argued that his execution would violate the Eighth and Fourteenth Amendments because he is actually innocent. That Herrera claim was rejected in the District Court and in the Court of Appeals. In the dissent from the denial of rehearing en banc, three judges stated that they were persuaded by Judge Heaney's dissent that there was "at least a substantial likelihood" that Schlup could meet even the extraordinarily high showing required by Herrera. We denied certiorari on Schlup's Herrera claim, and accordingly we express no opinion as to its merits.316"'extraordinarily high'" standard of review, id., at 426 (O'CONNOR, J., concurring).32Schlup, in contrast, accompanies his claim of innocence with an assertion of constitutional error at trial. For that reason, Schlup's conviction may not be entitled to the same degree of respect as one, such as Herrera's, that is the product of an error-free trial. Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.Consequently, Schlup's evidence of innocence need carry less of a burden. In Herrera (on the assumption that petitioner's claim was, in principle, legally well founded), the evidence of innocence would have had to be strong enough to make his execution "constitutionally intolerable" even if his conviction was the product of a fair trial. For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.Our rather full statement of the facts illustrates the foregoing distinction between a substantive Herrera claim and Schlup's procedural claim. Three items of evidence are particularly relevant: the affidavit of black inmates attesting to the innocence of a white defendant in a racially motivated killing; the affidavit of Green describing his prompt call for32 In Herrera, it was not necessary to determine the appropriate standard of review because petitioner had failed to make "a truly persuasive demonstration of 'actual innocence'" under any reasonable standard.317assistance; and the affidavit of Lieutenant Faherty describing Schlup's unhurried walk to the dining room. If there were no question about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup's innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup's guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error, Schlup's threshold showing of innocence would justify a review of the merits of the constitutional claims.IVAs this Court has repeatedly noted, "[a]t common law, res judicata did not attach to a court's denial of habeas relief." McCleskey, 499 U. S., at 479. Instead," 'a renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge.'" Ibid., quoting W. Church, Writ of Habeas Corpus § 386, p. 570 (2d ed. 1893).The Court has explained the early tolerance of successive petitions, in part, by the fact that the writ originally performed only the narrow function of testing either the jurisdiction of the sentencing court or the legality of Executive detention. See McCleskey, 499 U. S., at 478; Wainwright v. Sykes, 433 U. S. 72, 78 (1977).33 The scope of the writ later expanded beyond its original narrow purview to encompass33 As this Court noted in Wainwright v. Sykes, there have been "divergent discussions of the historic role of federal habeas corpus." 433 U. S., at 77, n. 6. One recent commentator has offered a new perspective on the history of the writ. See Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997 (1992).318review of constitutional error that had occurred in the proceedings leading to conviction. See McCleskey, 499 U. S., at 478-479; Wainwright v. Sykes, 433 U. S., at 79. That broadening of the scope of the writ created the risk that repetitious filings by individual petitioners might adversely affect the administration of justice in the federal courts. Such filings also posed a threat to the finality of state-court judgments and to principles of comity and federalism. See, e. g., McCleskey, 499 U. S., at 491; Murray v. Carrier, 477 U. S. 478, 487 (1986).To alleviate the increasing burdens on the federal courts and to contain the threat to finality and comity, Congress attempted to fashion rules disfavoring claims raised in second and subsequent petitions. For example, in 1966, Congress amended 28 U. S. C. § 2244(b) "to introduce 'a greater degree of finality of judgments in habeas corpus proceedings.''' Kuhlmann v. Wilson, 477 U. S., at 450, quoting S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (Senate Report); see also McCleskey, 499 U. S., at 486. Similarly, in 1976, Congress promulgated Rule 9(b) of the Rules Governing Habeas Corpus Proceedings in part to deal with the problem of repetitive filings.These same concerns resulted in a number of recent decisions from this Court that delineate the circumstances under which a district court may consider claims raised in a second or subsequent habeas petition. In those decisions, the Court held that a habeas court may not ordinarily reach the merits of successive claims, Kuhlmann v. Wilson, 477 U. S. 436 (1986), or abusive claims, McCleskey, 499 U. S., at 493, absent a showing of cause and prejudice, see Wainwright v. Sykes, 433 U. S. 72 (1977).34 The application of cause and34 A "'successive petition' raises grounds identical to those raised and rejected on the merits on a prior petition." Kuhlmann v. Wilson, 477 U. S., at 444, n. 6 (plurality opinion). An "abusive petition" occurs "where a prisoner files a petition raising grounds that were available but not relied upon in a prior petition, or engages in other conduct that 'disentitle[s] him319prejudice to successive and abusive claims conformed to this Court's treatment of procedurally defaulted claims. Carrier, 477 U. S. 478; see also McCleskey, 499 U. S., at 490-491 ("The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review"). See generally Sawyer, 505 U. S., at 338-340. The net result of this congressional and judicial action has been the adoption in habeas corpus of a "'qualified application of the doctrine of res judicata.'" McCleskey, 499 U. S., at 486, quoting Senate Report, at 2.35At the same time, the Court has adhered to the principle that habeas corpus is, at its core, an equitable remedy. This Court has consistently relied on the equitable nature of habeas corpus to preclude application of strict rules of res judicata. Thus, for example, in Sanders v. United States, 373 U. S. 1 (1963), this Court held that a habeas court must adjudicate even a successive habeas claim when required to do so by the "ends of justice." Id., at 15-17; see also McCleskey, 499 U. S., at 495. The Sanders Court applied this equitable exception even to petitions brought under 28to the relief he seeks.''' Ibid., quoting Sanders v. United States, 373 U. S. 1, 17-19 (1963).35 This Court has repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence. For example, in McCleskey, the Court noted that the doctrine of abuse of the writ of habeas corpus "refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions." 499 U. S., at 489. Similarly, in Wainwright v. Sykes, the Court noted its "historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged." 433 U. S., at 81; see also Kuhlmann, 477 U. S., at 446-447 (explaining that the Court has both expanded and limited the scope of the writ); Brecht v. Abrahamson, 507 U. S. 619, 633 (1993) ("We have filled the gaps of the habeas corpus statute with respect to other matters").320u. S. C. § 2255, though the language of § 2255 contained no reference to an "ends of justice" inquiry. 373 U. S., at 12-15.We firmly established the importance of the equitable inquiry required by the ends of justice in "a trio of 1986 decisions" handed down on the same day. Sawyer, 505 U. S., at 339 (referring to Kuhlmann v. Wilson, 477 U. S. 436, Murray v. Carrier, 477 U. S. 478, and Smith v. Murray, 477 U. S. 527). In Kuhlmann, seven Members of this Court squarely rejected the argument that in light of the 1966 amendments, "federal courts no longer must consider the 'ends of justice' before dismissing a successive petition." 477 U. S., at 451 (plurality opinion); id., at 468-471 (Brennan, J., dissenting); id., at 476-477 (STEVENS, J., dissenting); see also Sawyer, 505 U. S., at 339 (noting that in Kuhlmann, "[w]e held that despite the removal of [the reference to the ends of justice] from 28 U. S. C. § 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard"). Thus, while recognizing that successive petitions are generally precluded from review, Justice Powell's plurality opinion expressly noted that there are "limited circumstances under which the interests of the prisoner in relitigating constitutional claims held meritless on a prior petition may outweigh the countervailing interests served by according finality to the prior judgment." 477 U. S., at 452. Similarly, writing for the Court in Carrier, JUSTICE O'CONNOR observed that the Court had adopted the cause and prejudice standard in part because of its confidence that that standard would provide adequate protection to "'victims of a fundamental miscarriage of justice,'" 477 U. S., at 495-496, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982); however, JUSTICE O'CONNOR also noted that the Court has candidly refused to "pretend that this will always be true," Carrier, 477 U. S., at 496. For that reason, "'[i]n appropriate cases,' the principles of comity and finality that inform the concepts of cause and prejudice 'must yield to the imperative of correcting a fund a-321mentally unjust incarceration.'" Id., at 495, quoting Engle v. Isaac, 456 U. S., at 135; see also Smith v. Murray, 477 U. S., at 537. In subsequent cases, we have consistently reaffirmed the existence and importance of the exception for fundamental miscarriages of justice. See, e. g., Sawyer, 505 U. S., at 339-340; McCleskey, 499 U. S., at 494-495; DuggerTo ensure that the fundamental miscarriage of justice exception would remain "rare" and would only be applied in the "extraordinary case," while at the same time ensuring that the exception would extend relief to those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to the petitioner's innocence. In Kuhlmann, for example, Justice Powell concluded that a prisoner retains an overriding "interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain." 477 U. S., at 452. Similarly, JUSTICE O'CONNOR wrote in Carrier that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." 477 U. S., at 496; see also Smith v. Murray, 477 U. S., at 537, quoting Carrier, 477 U. S., at 496.The general rule announced in Kuhlmann, Carrier, and Smith, and confirmed in this Court's more recent decisions, rests in part on the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.36 Judge Friendly's observation a quarter of a36 Indeed, neither party called our attention to any decision from a Court of Appeals in which a petitioner had satisfied any definition of actual innocence. Though some such decisions exist, see, e. g., Henderson v. Sargent, 926 F.2d 706, 713-714 (CA8), reaff'd in relevant part on rehearing, 939 F.2d 586 (CA8 1991), cert. denied, 502 U. S. 1050 (1992); Bliss v. Lockhart,322century ago that "the one thing almost never suggested on collateral attack is that the prisoner was innocent of the crime" remains largely true today.37 Explicitly tying the miscarriage of justice exception to innocence thus accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the "extraordinary case," Carrier, 477 U. S., at 496.In addition to linking miscarriages of justice to innocence, Carrier and Kuhlmann also expressed the standard of proof that should govern consideration of those claims. In Carrier, for example, the Court stated that the petitioner must show that the constitutional error "probably" resulted in the conviction of one who was actually innocent. The Kuhlmann plurality, though using the term "colorable claim of factual innocence," elaborated that the petitioner would be required to establish, by a "'fair probability,'" that "'the trier of the facts would have entertained a reasonable doubt of his guilt.'" 477 U. S., at 454, 455, n. 17.In the years following Kuhlmann and Carrier, we did not expound further on the actual innocence exception. In those few cases that mentioned the standard, the Court continued to rely on the formulations set forth in Kuhlmann and Carrier. In McCleskey, for example, while establishing that cause and prejudice would generally define the situations in which a federal court might entertain an abusive petition, the Court recognized an exception for cases in which the constitutional violation "probably has caused the conviction of one innocent of the crime." 499 U. S., at 494, citing Carrier, 477 U. S., at 485.891 F.2d 1335, 1342 (CA8 1987) (relying on Carrier's actual innocence exception as an alternative ground of decision), independent research confirms that such decisions are rare.37 Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 145 (1970).323Then, in Sawyer, the Court examined the miscarriage of justice exception as applied to a petitioner who claimed he was "actually innocent of the death penalty." In that opinion, the Court struggled to define "actual innocence" in the context of a petitioner's claim that his death sentence was inappropriate. The Court concluded that such actual innocence "must focus on those elements which render a defendant eligible for the death penalty." 505 U. S., at 347. However, in addition to defining what it means to be "innocent" of the death penalty, the Court departed from Carrier's use of "probably" and adopted a more exacting standard of proof to govern these claims: The Court held that a habeas petitioner "must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." 505 U. S., at 336 (emphasis added).38 No attempt was made in Sawyer to reconcile this stricter standard with Carrier's use of "probably."vIn evaluating Schlup's claim of innocence, the Court of Appeals applied Eighth Circuit precedent holding that Sawyer, rather than Carrier, supplied the proper legal standard. The court then purported to apply the Sawyer standard. Schlup argues that Sawyer has no application to a petitioner who claims that he is actually innocent of the crime, and that the Court of Appeals misapplied Sawyer in any event. Respondent contends that the Court of Appeals was correct in both its selection and its application of the Sawyer standard. Though the Court of Appeals seems to have misapplied Sawyer,39 we do not rest our decision on that ground because we38 Even the high standard of proof set forth in Sawyer falls short of the Jackson standard governing habeas review of claims of insufficiency of the evidence. See Jackson v. Virginia, 443 U. S. 307, 324 (1979) ("[N]o rational trier of fact could have found proof of guilt beyond a reasonable doubt") (emphasis added). See infra, at 330.39 See infra, at 331.324conclude that in a case such as this, the Sawyer standard does not apply.As we have stated, the fundamental miscarriage of justice exception seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case. We conclude that Carrier, rather than Sawyer, properly strikes that balance when the claimed injustice is that constitutional error has resulted in the conviction of one who is actually innocent of the crime.Claims of actual innocence pose less of a threat to scarce judicial resources and to principles of finality and comity than do claims that focus solely on the erroneous imposition of the death penalty. Though challenges to the propriety of imposing a sentence of death are routinely asserted in capital cases, experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. See supra, at 321-322. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidencewhether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. Even under the preSawyer regime, "in virtually every case, the allegation of actual innocence has been summarily rejected."40 The threat to judicial resources, finality, and comity posed by claims of actual innocence is thus significantly less than that posed by claims relating only to sentencing.Of greater importance, the individual interest in avoiding injustice is most compelling in the context of actual innocence. The quintessential miscarriage of justice is the exe-40 Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303, 377 (1993); see also id., at 377, n. 370 (collecting cases).325cution of a person who is entirely innocentY Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the "fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re Winship, 397 U. S. 358, 372 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) ("The maxim of the law is ... that it is better that ninety-nine ... offenders should escape, than that one innocent man should be condemned"). See generally Newman, Beyond "Reasonable Doubt," 68 N. Y. U. L. Rev. 979, 980981 (1993).The overriding importance of this greater individual interest merits protection by imposing a somewhat less exacting standard of proof on a habeas petitioner alleging a fundamental miscarriage of justice than on one alleging that his sentence is too severe. As this Court has noted, "a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U. S., at 370 (Harlan, J., concurring); see also Addington v. Texas, 441 U. S. 418, 423 (1979). The standard of proof thus reflects "the relative importance attached to the ultimate decision." Ibid. Though the Sawyer standard was fashioned to reflect the relative importance of a claim of an erroneous sentence, application of that standard to petitioners such as Schlup would give insufficient weight to the correspondingly greater injustice that is implicated by a claim of actual innocence. The41 See, e. g., Lankford v. Idaho, 500 U. S. 110, 125 (1991); Clemons v.Mississippi, 494 U. S. 738, 750, n. 4 (1990); Booth v. Maryland, 482 U. S. 496,509, n. 12 (1987); Solem v. Helm, 463 U. S. 277, 294 (1983); Gardner v. Florida, 430 U. S. 349, 357-358 (1977) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 303-304, 305 (1976) (plurality opinion of Stewart, Powell, and STEVENS, JJ.).326paramount importance of avoiding the injustice of executing one who is actually innocent thus requires application of the Carrier standard.42We recognize, as the State has reminded us, that in Sawyer the Court applied its new standard not only to the penalty phase of the case but also to Sawyer's responsibility for arson, one of the elements of the offense of first-degree murder.43 This fact does not require application of the Sawyer standard to a case such as Schlup's. Though formulated as an element of the offense of first-degree murder, the arson functioned essentially as a sentence enhancer. That claim, therefore, is readily distinguishable from a claim, like the one raised by Schlup, that the petitioner is actually innocent. Fealty to the doctrine of stare decisis does not, therefore, preclude application of the Carrier standard to the facts of this case.44Accordingly, we hold that the Carrier "probably resulted" standard rather than the more stringent Sawyer standard must govern the miscarriage of justice inquiry when a peti-42 By our references to Winship, of course, we do not suggest that Schlup comes before a habeas court in the same situation as one who has merely been accused of a crime. Having been convicted by a jury of a capital offense, Schlup no longer has the benefit of the presumption of innocence. Cf. Herrera v. Collins, 506 U. S., at 399 (O'CONNOR, J., concurring). To the contrary, Schlup comes before the habeas court with a strong-and in the vast majority of the cases conclusive-presumption of guilt. Our reference to Winship is intended merely to demonstrate that it is quite consistent with our jurisprudence to give content through a burden of proof to the understanding that fundamental injustice would result from the erroneous conviction and execution of an innocent person.43 See Sawyer, 505 U. S., at 342, n. 8, 349-350.44 Nor do we believe that confining Sawyer's more rigorous standard to claims involving eligibility for the sentence of death is anomalous. Our recognition of the significant difference between the injustice that results from an erroneous conviction and the injustice that results from an erroneous sentence is reflected in our decisions that permit reduced procedural protections at sentencing. See, e. g., Williams v. New York, 337 U. S. 241 (1949).327tioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to the consideration of the merits of his constitutional claims.VIThe Carrier standard requires the habeas petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." 477 U. S., at 496. To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. The petitioner thus is required to make a stronger showing than that needed to establish prejudice.45 At the same time, the showing of "more likely than not" imposes a lower burden of proof than the "clear and convincing" standard required under Sawyer. The Carrier standard thus ensures that petitioner's case is truly "extraordinary," McCleskey, 499 U. S., at 494, while still providing petitioner a meaningful avenue by which to avoid a manifest injustice.Carrier requires a petitioner to show that he is "actually innocent." As used in Carrier, actual innocence is closely related to the definition set forth by this Court in Sawyer. To satisfy the Carrier gateway standard, a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.Several observations about this standard are in order.The Carrier standard is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal also to consider the probative force of relevant evi-45 See Strickland v. Washington, 466 U. S. 668, 694 (1984); United States v. Bagley, 473 U. S. 667, 682 (1985) (Blaclrmun, J.); id., at 685 (White, J., concurring).328dence that was either excluded or unavailable at trial. Indeed, with respect to this aspect of the Carrier standard, we believe that Judge Friendly's description of the inquiry is appropriate: The habeas court must make its determination concerning the petitioner's innocence "in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial."46The consideration in federal habeas proceedings of a broader array of evidence does not modify the essential meaning of "innocence." The Carrier standard reflects the proposition, firmly established in our legal system, that the line between innocence and guilt is drawn with reference to a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). Indeed, even in Sawyer, with its emphasis on eligibility for the death penalty, the Court did not stray from the understanding that the eligibility determination must be made with reference to reasonable doubt. Thus, whether a court is assessing eligibility for the death penalty under Sawyer, or is deciding whether a petitioner has made the requisite showing of innocence under Carrier, the analysis must incorporate the understanding that proof beyond a reasonable doubt marks the legal boundary between guilt and innocence.474638 U. Chi. L. Rev., at 160.47 Actual innocence, of course, does not require innocence in the broad sense of having led an entirely blameless life. Indeed, Schlup's situation provides a good illustration. At the time of the crime at issue in this case, Schlup was incarcerated for an earlier offense, the sordid details of which he acknowledged in his testimony at the punishment phase of his trial. Such earlier criminal activity has no bearing on whether Schlup is actually innocent of Dade's murder.As we have explained, supra, at 313-317, Schlup's claim of innocence is fundamentally different from the claim advanced in Herrera. The standard that we apply today, therefore, will not foreclose the application of factual innocence to the analysis of such claims.329The meaning of actual innocence as formulated by Sawyer and Carrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.We note finally that the Carrier standard requires a petitioner to show that it is more likely than not that "no reasonable juror" would have convicted him. The word "reasonable" in that formulation is not without meaning. It must be presumed that a reasonable juror would consider fairly all of the evidence presented. It must also be presumed that such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.4848THE CHIEF JUSTICE suggests that the Carrier standard is "a classic mixing of apples and oranges." Post, at 339. That standard, however, is no more a mixing of apples and oranges than is the standard adopted by the Court in Sawyer. See Sawyer, 505 U. S., at 336 (requiring that petitioner show "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty"). Though it is true that" '[m]ore likely than not'" is a "quintessential charge to a finder offact," post, at 339, that is equally true of the "clear and convincing evidence" component of the Sawyer formulation. There is thus no reason to believe that the Carrier standard is any more likely than the Sawyer standard to be "a source of confusion." Post, at 339.Nor do we accept THE CHIEF JUSTICE'S description of the Carrier standard as a "hybrid." Post, at 339. Finders of fact are often called upon to make predictions about the likely actions of hypothetical "reasonable" actors. Thus, the application of "more likely than not" to the habeas court's assessment of the actions of reasonable jurors is neither illogical nor unusual.330Though the Carrier standard requires a substantial showing, it is by no means equivalent to the standard of Jackson v. Virginia, 443 U. S. 307 (1979), that governs review of claims of insufficient evidence. The Jackson standard, which focuses on whether any rational juror could have convicted, looks to whether there is sufficient evidence which, if credited, could support the conviction. The Jackson standard thus differs in at least two important ways from the Carrier standard. First, under Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review. In contrast, under the gateway standard we describe today, the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. In such a case, the habeas court may have to make some credibility assessments. Second, and more fundamentally, the focus of the inquiry is different under Jackson than under Carrier. Under Jackson, the use of the word "could" focuses the inquiry on the power of the trier of fact to reach its conclusion. Under Carrier, the use of the word "would" focuses the inquiry on the likely behavior of the trier of fact.Indeed, our adoption of the phrase "more likely than not" reflects this distinction. Under Jackson, the question whether the trier of fact has power to make a finding of guilt requires a binary response: Either the trier of fact has power as a matter of law or it does not. Under Carrier, in contrast, the habeas court must consider what reasonable triers of fact are likely to do. Under this probabilistic inquiry, it makes sense to have a probabilistic standard such as "more likely than not."49 Thus, though under Jackson the mere existence of sufficient evidence to convict would be determinative of petitioner's claim, that is not true under Carrier.49 The "clear and convincing" standard adopted in Sawyer reflects this same understanding of the relevant inquiry.331We believe that the Eighth Circuit's erroneous application of the Sawyer standard below illustrates this difference. In determining that Schlup had failed to satisfy the Sawyer standard, the majority noted that "two prison officials, who were eyewitnesses to the crime, positively identified Mr. Schlup as one of the three perpetrators of the murder. This evidence was clearly admissible and stands unrefuted except to the extent that Mr. Schlup now questions its credibility." 11 F. 3d, at 741.The majority then continued:"[E]ven if we disregard the source of the new evidence, the eleventh-hour nature of the information, and a presentation coming almost six years after the trial; it is simply not possible to say that the appellant has shown by clear and convincing evidence that but for a constitutional error no reasonable jury would have found him guilty." Ibid.However, Schlup's evidence includes the sworn statements of several eyewitnesses that Schlup was not involved in the crime. Moreover, Schlup has presented statements from Green and Faherty that cast doubt on whether Schlup could have participated in the murder and still arrived at the dining room 65 seconds before the distress call was received. Those new statements may, of course, be unreliable. But if they are true-as the Court of Appeals assumed for the purpose of applying its understanding of the Sawyer standardit surely cannot be said that a juror, conscientiously following the judge's instructions requiring proof beyond a reasonable doubt, would vote to convict. Under a proper application of either Sawyer or Carrier, petitioner's showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury's verdict.In this case, the application of the Carrier standard arises in the context of a request for an evidentiary hearing. In applying the Carrier standard to such a request, the District332Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial. Obviously, the court is not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment. Cf. Agosto v. INS, 436 U. S. 748, 756 (1978) ("[A] district court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented"); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986) ("[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial"). Instead, the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.Because both the Court of Appeals and the District Court evaluated the record under an improper standard, further proceedings are necessary. The fact-intensive nature of the inquiry, together with the District Court's ability to take testimony from the few key witnesses if it deems that course advisable, convinces us that the most expeditious procedure is to order that the decision of the Court of Appeals be vacated and that the case be remanded to the Court of Appeals with instructions to remand to the District Court for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusSCHLUP v. DELO, SUPERINTENDENT, POTOSI CORRECTIONAL CENTERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo.93-7901. Argued October 3, 1994-Decided January 23,1995Petitioner Schlup, a Missouri prisoner, was convicted of participating in the murder of a fellow inmate and sentenced to death. In this, his second federal habeas petition, he alleged that constitutional error at his trial deprived the jury of critical evidence that would have established his innocence. The District Court declined to reach the petition's merits, holding that Schlup could not satisfy the threshold showing of "actual innocence" required by Sawyer v. Whitley, 505 U. S. 333, 336, under which a petitioner must demonstrate "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found" him guilty.Held: The standard of Murray v. Carrier, 477 U. S. 478-which requires a habeas petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent," id., at 496rather than the more stringent Sawyer standard, governs the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to the consideration of the merits of his constitutional claims. Pp. 313-332.(a) In contrast to the actual innocence claim asserted in Herrera v.Collins, 506 U. S. 390-that the execution of an innocent person convicted in an error-free trial violates the Eighth Amendment-Schlup's claim is accompanied by an assertion of constitutional error at trial: the ineffectiveness of his counsel and the withholding of evidence by the prosecution. As such, his conviction may not be entitled to the same degree of respect as one that is the product of an error-free trial, and his evidence of innocence need carry less of a burden. In Herrera, the evidence of innocence would have had to be strong enough to make the execution "constitutionally intolerable" even if the conviction was the product of a fair trial, while here the evidence must establish sufficient doubt about Schlup's guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial. Pp. 313-317.(b) The societal interests in finality, comity, and conservation of scarce judicial resources dictate that a habeas court may not ordinarily reach the merits of successive or abusive claims, absent a showing of cause299and prejudice. However, since habeas corpus is, at its core, an equitable remedy, a court must adjudicate even successive claims when required to do so by the ends of justice. Thus, in a trio of cases, this Court firmly established an exception for fundamental miscarriages of justice. Carrier, 477 U. S., at 495; Kuhlmann v. Wilson, 477 U. S. 436; Smith v. Murray, 477 U. S. 527. To ensure that the fundamental miscarriage of justice exception would remain "rare" and be applied only in the "extraordinary case," while at the same time ensuring that relief would be extended to those who are truly deserving, the Court has explicitly tied the exception to the petitioner's innocence. Carrier and Kuhlmann also expressed the standard of proof that should govern consideration of such claims: The petitioner must show that the constitutional error "probably" resulted in the conviction of one who was actually innocent. The Sawyer Court made no attempt to reconcile its more exacting standard of proof with Carrier's use of "probably." pp. 317-323.(c) Carrier, rather than Sawyer, properly strikes the balance between the societal interests and the individual interest in justice, when the claimed injustice is that constitutional error has resulted in the conviction of one who is actually innocent. Though challenges to the propriety of imposing a death sentence are routinely asserted in capital cases, a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare and must be supported by new reliable evidence that was not presented at trial, evidence obviously unavailable in the vast majority of cases. Thus, the threat to judicial resources, finality, and comity posed by actual innocence claims is significantly less than that posed by sentencing claims. More importantly, the individual interest in avoiding injustice is most compelling in the context of actual innocence, since the quintessential miscarriage of justice is the execution of an innocent person. The less exacting Carrier standard of proof reflects the relative importance attached to the ultimate decision. Application of the stricter Sawyer standard would give insufficient weight to the correspondingly greater injustice that is implicated by an actual innocence claim. Pp.323-327.(d) To satisfy Carrier's "actual innocence" standard, a petitioner must show that, in light of the new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The focus on actual innocence means that a district court is not bound by the admissibility rules that would govern at trial, but may consider the probative force of relevant evidence that was either wrongly excluded or unavailable at trial. The district court must make a probabilistic determination about what reasonable, properly instructed jurors would do, and it is presumed that a reasonable juror300Full Text of Opinion

1956_11

MR. JUSTICE HARLAN delivered the opinion of the Court.United States Gypsum Company appeals from a decree of a three-judge court of the United States District Court for the District of Columbia, entered December 9, 1954. This decree modified a final decree of that court, entered May 15, 1951, against Gypsum, the appellees National Gypsum Company, and Certain-teed Products Corporation, and others, in a civil antitrust proceeding instituted by the Government in 1940. [Footnote 1] The modification was a provision ordering Gypsum to dismiss with prejudice four suits which it had brought in three different federal district courts against National, Certain-teed, and two other codefendants in the antitrust proceeding, to recover compensation or damages for the pendente lite use of certain of its patents during the period February 1, 1948, to May 15, 1951. [Footnote 2]At the outset, some mention of the prolonged antitrust proceeding is required to put the present post-decree controversy in context. In that proceeding, the Government charged Gypsum, National, Certain-teed, and a number Page 352 U. S. 460 of other corporate and individual defendants with conspiracy to restrain and monopolize interstate commerce in gypsum board and other gypsum products in violation of §§ 1, 2 and 3 of the Sherman Act. [Footnote 3] The crux of the Government's charges was the alleged illegality of Gypsum's system of industrywide uniform patent licensing agreements containing clauses giving Gypsum the right to fix prices on gypsum board and products. In 1946, at the close of the Government's case, the District Court dismissed the complaint. [Footnote 4] On appeal, this Court, on March 8, 1948, reversed and remanded the case for further proceedings. [Footnote 5] Thereafter, the District Court, with one dissent, [Footnote 6] interpreting this Court's decision to mean that Gypsum's multiple uniform price-fixing patent licenses were illegal per se under the antitrust laws, granted the Government's motion for summary judgment, accepting as true the defendants' proffer of proof. On November 7, 1949, the District Court entered a decree which, among other things, adjudged Gypsum's patent licensing agreements illegal, null and void, enjoined the performance of such agreements, provided for limited compulsory nonexclusive licensing of Gypsum's patents on a reasonable royalty basis, and reserved jurisdiction over the case and parties for certain purposes. On appeals by both the Government and Gypsum, this Court, in 1950, dismissed Gypsum's appeal, [Footnote 7] affirmed the summary judgment below, [Footnote 8] and held the Government entitled to broader relief in Page 352 U. S. 461 certain respects, remanding the case for that purpose. [Footnote 9] Meanwhile, in noting probable jurisdiction on the Government's appeal, this Court enjoined the defendants from carrying out the price-fixing provisions of their current license agreements and from entering into any agreements or engaging in concerted action in restraint of trade. [Footnote 10] This preliminary injunction, entered May 29, 1950, remained in force until the new final decree of the District Court was entered on May 15, 1951. [Footnote 11]After this Court's 1948 reversal of the District Court's original order of dismissal, National, Certain-teed, and Gypsum's other co-defendant licensees ceased paying royalties under their license agreements. [Footnote 12] Following the May 15, 1951, decree, National and Certain-teed, as authorized by Article VI of that decree, entered into new license agreements, effective May 15, for the future use of Gypsum's patents, such licenses containing no price-fixing clauses; the royalty rate was the same as under the old licenses, except that the licensee's returns on unpatented gypsum products did not enter into its measure. The new licenses were without prejudice to Gypsum's claim for compensation for the use of the patents during the period February 1, 1948, to May 15, 1951. The respondents not having paid for that period, Gypsum, in 1953, brought suit against them in the Iowa federal court. The complaints in these suits asserted three separate grounds for recovery: (a) the royalty provisions of the old license agreements (Counts I and II); (b) quantum meruit for the reasonable value of the use Page 352 U. S. 462 of the patents (Counts III and IV); [Footnote 13] and (c) damages for patent infringement (Count V).Thereafter, National and Certain-teed, claiming that the institution of the Iowa actions violated the 1951 decree, and that, in any event, Gypsum was barred from recovery by reason of unpurged misuse of the patents involved, petitioned the antitrust court to enjoin further prosecution of the actions. [Footnote 14] The Government also filed a separate petition to enjoin Gypsum from maintaining any action based on the illegal license agreements, but took no position on Gypsum's right to recover for the period in question on the grounds of quantum meruit or patent infringement. [Footnote 15] Gypsum's answers to these petitions in substance alleged that the District Court was without jurisdiction to grant the relief sought by the petitioners, and put in issue all of the allegations on which the right to relief was predicated.The District Court decided that it had jurisdiction to grant relief (one judge dissenting), and, after hearing the parties through briefs and oral argument, but without taking any evidence beyond that already of record in the antitrust proceeding, concluded that the 1951 decree should be modified so as to enjoin the prosecution of Gypsum's suits. [Footnote 16] The court held that prosecution of Page 352 U. S. 463 Counts I and II which declared upon the illegal license agreements, could not be maintained under the terms of the 1951 decree. Although finding that the other three Counts were not barred by that decree, it further held that the suits should be prohibited in their entirety because of Gypsum's unpurged misuse of its patents. [Footnote 17] There followed the modifying decree of December 9, 1954, [Footnote 18] from which this appeal was taken. We noted probable jurisdiction. 350 U.S. 946. For the reasons given hereafter, we conclude that, except as it related to the two causes of action based on the illegal license agreements (Counts I and II), this proscriptive modification of the 1951 decree was not justified by the record before the District Court.IPreliminarily, we conclude that three aspects of the lower court's holding must be upheld. First, we think that Article X of the 1951 decree, reserving to the antitrust court jurisdiction, upon application of "any of the parties" to the decree, to make such "directions" and "modifications" as may be appropriate to the "carrying out" and "enforcement" of the decree, provided a fully adequate basis for the jurisdiction exercised below. [Footnote 19] Page 352 U. S. 464 United States v. Swift & Co., 286 U. S. 106, 286 U. S. 114; Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502. See also Chrysler Corp. v. United States, 316 U. S. 556. Gypsum argues that insofar as the relief granted below was rested upon patent misuse, instead of a construction of the 1951 decree which was the basis of enjoining the presecution of Counts I and II of Gypsum's suits, the lower court's decision involved a determination of a collateral private controversy between this group of antitrust defendants, rather than a "carrying out" or "enforcement" of the terms of that decree. But we think that whether Gypsum was barred from recovery in these suits by reason of the abuse of its patent rights was a problem sufficiently related to the rationale of the 1951 decree to bring it within the reserved jurisdiction clause. This is especially so because patent misuse was the essence of the old antitrust litigation, and its continuance or renewal were thus issues peculiarly within the province of the antitrust court, whose determination would avoid multiple litigation and possibly conflicting decisions on that issue among the courts in which Gypsum had brought suit.Likewise, we conclude that there is no basis for disturbing the District Court's determinations that prosecution of Counts I and II, based on the old license agreements, was not permissible under the 1951 decree, [Footnote 20] but that its Page 352 U. S. 465 terms did not reach the quantum meruit and infringement Counts. [Footnote 21]The outcome of this appeal then turns on whether the District Court was right in holding as a matter of law that Gypsum was barred from any kind of recovery for the pendente lite use of its patents because of their unpurged misuse. It is now, of course, familiar law that the courts will not aid a patent owner who has misused his patents to recover any of their emoluments accruing during the period of misuse or thereafter until the effect of such misuse have been dissipated, or "purged," as the conventional saying goes. Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488; B. B. Chemical Co. v. Ellis, 314 U. S. 495; Edward Katzinger Co. v. Chicago Metallic Mfg. Co., 329 U. S. 394; MacGregor v. Westinghouse Electric & Mfg. Co., 329 U. S. 402; Mercoid Corp. v. Minneapolis Honeywell Regulator Co., 320 U. S. 680. The rule is an extension of the equitable doctrine of "unclean hands" to the patent field. In terms of this case, this means that Gypsum may not recover from these appellees for their use of its patents between February 1, 1948, and May 15, 1951, if Gypsum has been guilty of misuse of the patents since 1948 or if the original misuse found in the antitrust litigation remained unpurged. This issue, of course, involves essentially a question of fact. And since the record is barren of any facts with respect to the situation existing in the gypsum industry since 1941, we think that the District Court erred in holding purely as a matter of law that an unpurged misuse had been shown. Page 352 U. S. 466IIPutting aside the two contract Counts, the enjoining of which we have held was sufficiently supported by the court's finding that they could not be maintained under the terms of the 1951 decree, there are three aspects to the lower court's holding as to the remaining Counts. First, the court held those Counts barred because Gypsum had engaged in "fresh" patent misuse -- misuse unrelated to the original antitrust litigation. Secondly, it was held that, since the "old" misuse adjudicated in the antitrust proceeding had continued unpurged, recovery must in any case be barred. [Footnote 22] And finally, the court held that irrespective of purge, the "old" misuse itself was sufficient to bar the patent infringement Count. We discuss each of these holdings in turn.AThe "fresh" misuse found by the lower court was simply the fact of the inclusion of Counts I and II in the 1953 suits. These Counts sought recovery of royalties under the illegal licensing agreements. Such inclusion, the court held, was a renewed attempt to enforce these illegal agreements, and as such should be regarded as a new misuse of the patents which barred recovery under the other Counts as well. [Footnote 23] We do not agree.The five Counts in Gypsum's complaints were merely alternative legal theories for reaching a single end, namely, recovery for the pendente lite use of Gypsum's patents. Had the complaints declared only upon the Page 352 U. S. 467 quantum meruit and infringement Counts, the mere bringing of the suits could then hardly have been regarded as fresh misuse, even though recovery might be defeated by showing some independent unpurged misuse of the patents involved. For, as the lower court recognized, such recovery by way of quantum meruit or damages for infringement was not "expressly or impliedly" touched by the terms of the 1951 decree. Gypsum explains the inclusion of the two contract Counts as precautionary pleading to fend against the possibility that the defendants, if sued only for quantum meruit and infringement, might set up the license agreements in defense. [Footnote 24] Such alternative pleading is expressly sanctioned by the Federal Rules of Civil Procedure, Rule 8, and, even though that defense has turned out to be untenable in light of the lower court's findings, we think that it distorts the doctrine of patent misuse to hold that recourse to this method of pleading here vitiated the other Counts of the complaints. [Footnote 25]Moreover, in view of what transpired before the antitrust court in the hearings relating to the settlement of the 1949 decree, we are by no means satisfied that Gypsum was not entitled to a bona fide guess, at least as a matter of alternative pleading, that the decree would not be interpreted as barring the collection of these interim royalties. At those hearings, counsel for one of the defendants, Celotex, without remonstrance by either of these respondents, stated:"In order that United States Gypsum will have no misunderstanding of my position, I want them to know that my suggestion [that the decree should Page 352 U. S. 468 declare the licenses 'illegal, null and void'] is in no sense based on any hope or desire on my part to get out of any license fees during any interim period, and if we can agree . . . as far as my client is concerned, we are willing to let the royalty rate [of the new compulsory licenses], whatever it is, agreed upon apply back to the time when we ceased paying royalties. I just want to make it clear to all that we are not attempting by this declaration of illegality of them to find some way of avoiding the license fees which, during this [litigation], none of use has paid."Further, both the Government and the other co-defendants at that time seem to have regarded the "illegal, null and void" provisions of the decree as simply the equivalent of "cancellation" of the licenses. In view of the narrow adjudication of violation by this Court, infra, p. 352 U. S. 470, we cannot say that Gypsum could not have reasonably entertained the belief tha the price-fixing provisions of the license agreements would ultimately be held separable from the basic undertaking to pay royalties. Indeed, the new licenses, authorized by the decree, which omitted the price-fixing clauses, carried the same royalty rate on products made under the patents.We conclude that, in the circumstances present here, it was error to regard the inclusion of the contract Counts as constituting a "fresh" patent misuse on Gypsum's part.BWe come next to the holding that the "old" misuse, found in the antitrust proceeding, continued unpurged through the 1948-1951 period. And here we are met immediately by the fact that the record before the antitrust court is completely bare of any facts relating to this period, or indeed any period after 1941. For the Government's proof in the antitrust case, presented from 1940 to 1944, concerned the gypsum industry prior to and until Page 352 U. S. 469 1941, and no further evidence has ever been introduced into any of these litigations. We thus know literally nothing about the state of the gypsum industry between 1948, when this Court, on evidence not extending beyond 1941, first held that there had been an antitrust violation, and 1951. How, then, can we assume that this earlier violation, adjudicated for the first time in 1948, continued thereafter?The answer to this question depends on the nature and extent of that violation. According to Gypsum, the only illegality ever adjudicated was the fixing of prices on Gypsum materials under the industrywide uniform price-fixing clauses of patent licenses which were found to have been the product of concerted action between Gypsum and its co-defendants. In other words, Gypsum, relying on the 1949 decree, which followed this Court's first decision, and its underlying findings, [Footnote 26] argues that the maintenance of uniform patent licenses with price-fixing clauses was the only patent misuse ever found. It then points out that it offered to prove below that price-fixing in the industry stopped in 1941, and that the licenses were rescinded in 1948. Add to this the fact that the 1949 decree, and again this Court's 1950 interlocutory decree, enjoined Gypsum from enforcing these licenses, and, says Gypsum, the inference arises that the only patent misuse ever adjudicated had ceased by 1948 -- an inference at least sufficient to allow the issue to go to trial on the facts.According to appellees National and Certain-teed, however, the adjudication of misuse in the antitrust proceeding was much broader, encompassing the regimentation of the entire gypsum industry, the restraint of commerce in unpatented gypsum products, the elimination of jobbers, and the standardization of trade practices throughout Page 352 U. S. 470 the industry. This broad view of the character of the antitrust violation rests upon this Court's 1950 decision, which held the 1949 decree too narrow and allowed the Government the broader relief embodied in the 1951 decree. [Footnote 27] Allellees argue that the fact that this Court felt it necessary to broaden the 1949 decree involved, by necessity, an adjudication of broad patent misuse, misuse not prohibited by the 1949 decree and therefore left unpurged by it. In other words, the argument runs, the broadening of the decree by this Court necessarily involved a holding that Gypsum was guilty of violations not proscribed by the original decree, violations which existed unpurged during part or all of the 1948-1951 period, since they were first adjudicated by this Court in 1950 and presumptively continued until 1951, when they were finally dealt with by the 1951 decree.Appellees' argument is ingenious, but incorrect. The course of decisions in the antitrust litigation clearly shows that the only misuse ever adjudicated was that arising from the uniform price-fixing provisions of the license agreements. In the original suit, the only undisputed issue of fact was that Gypsum had given its competitors uniform patent licenses containing a price-fixing clause. The Government also charged Gypsum with a variety of other abuses, including price-fixing on unpatented articles, elimination of jobbers, and standardization of trade practices. All of these charges were put in issue by Gypsum. On the appeal from the original dismissal of the proceedings, this Court held that the uniform price-fixing licenses constituted a per se antitrust violation, and also that the Page 352 U. S. 471 Government's evidence as to the other matters constituted a prima facie case of additional violation. [Footnote 28] On remand, the District Court, instead of going into a factual trial of these other matters, granted summary judgment on the price-fixing violation. This left all of the other matters still at issue. They continued to remain at issue after the ensuing appeals to this Court, for, in affirming the summary judgment [Footnote 29] and broadening the 1949 decree, [Footnote 30] this Court made it clear that it was proceeding solely on the basis of the narrow antitrust violation found by the District Court: [Footnote 31]"We agree with a statement made by counsel for the Government in argument below that, as a 'matter of formulating the decree,' many facts offered to be proven would have effect upon the conclusion of a court as to the decree's terms. However, we read the preliminary statement of the District Court . . . as an adjudication of violation of the Sherman Act by the action in concert of the defendants through the fixed-price licenses, accepting as true the underlying facts in defendants' proof by proffer. The trial judges understood the summary judgment to be as Judge Stephens said, 'limited to that one undisputed question.' Judge Garrett and Judge Jackson agreed. That conclusion entitled the Government only to relief based on that finding and the proffered facts. On that basis, we dismissed United States Gypsum's appeal from the decree, and on that basis we examine the Government's objection to the decree.""* * * * Page 352 U. S. 472" "[A decree] is not limited to prohibition of the proven means by which the evil was accomplished, but may range broadly through practices connected with acts actually found to be illegal.. . . ."". . . We turn then to the Government's proposals for modification of the decree on the assumption that only a violation through concerted industry license agreements has been proven, but recognizing, as is conceded by defendants, that relief, to be effective, must go beyond the narrow limits of the proven violation."340 U.S. 340 U. S. 87-89. [Footnote 32]Thus, we see that the only patent misuse that has ever been established in this long drawn-out litigation is concerted price-fixing under the former patent licenses, and that the 1950 holding of this Court was not an adjudication of other violations, but only an application of the well known principle that relief in antitrust cases may range beyond the narrow area of proven violations. Nothing, therefore, in the broadening of the decree supports the inference that the acts prohibited therein and left open in the 1949 decree continued in the pendente lite period or, in fact, had ever taken place. Perhaps Gypsum did engage in broad regimentation of the industry, as charged in the Government's 1940 complaint, and Page 352 U. S. 473 perhaps such misuse or its effects continued through 1951. But there is nothing in this record to show that any such hypothesis is true, and no part of it has ever been proved. The question is one of fact, and Gypsum is entitled to go to trial on it.Nor is it enough to sustain the judgment below to say, as appellees do, that the conceded "old" misuse, consisting of industrywide price-fixing through uniform patent licenses, should be presumed to have continued unpurged into the 1948-1951 period. The record shows, without dispute so far, that, for seven years before the beginning of the 1948-1951 period, Gypsum had not engaged in price-fixing, and that, for two of those three years, price-fixing had been under injunction. These factors raised a sufficient inference of purge prior to the critical period to entitle Gypsum to go to trial on the point and to prevent the court from granting what in effect was summary judgment. Cf. United States v. Oregon State Medical Society, 343 U. S. 326. Nor do we think this conclusion is overcome by the lower court's findings that the "five acts" of purge offered by Gypsum were not sufficient to establish purge. We express no opinion upon the merits of these findings, for their sufficiency can hardly be judged in isolation from the facts as to competitive conditions in the gypsum industry during the 1941-1951 period, on which the record is silent. And other alleged antitrust violations are not now available to appellees as acts of misuse, for, as to them Gypsum has not yet had its day in court.We conclude, therefore, that the judgment below cannot be supported on the basis of the claimed unpurged "old "misuse.CWe pass lastly to the lower court's holding that the "old" misuse, without regard to purge, barred the infringement Count of Gypsum's suits. In effect, this holding Page 352 U. S. 474 was that, because "of the practical and legal situation," proscription of this Count should be added by relation back, as it were, to the relief already accorded by the 1951 decree. Admittedly such relief was neither obtained nor sought by the Government in either the 1949 or 1951 decree proceedings. To be sure, one of the prayers for relief in the Government's antitrust complaint in 1940 had been that the defendants should be enjoined from bringing any action for infringement of any of the patents involved, or from attempting to collect in any way royalties or fees for their use until all misuse had been abandoned and its consequences dissipated. In the subsequent 1949 and 1951 decree and appellate proceedings, however, this item of proposed relief was never adverted to, much less pressed upon the courts. And even in the 1953-1954 modification proceedings, and now, the Government does not contend that Gypsum is precluded from maintaining the infringement Count. The conclusion seems inescapable that the Government's original request for such relief was, in effect, withdrawn. In this state of affairs, we think this relief should not have been added to the decree in 1954, in the absence of proof of intervening circumstances indicating its need in the public interest. Cf. Hughes v. United States, 342 U. S. 353. There was no such proof, and, without it, the proscription of the infringement Count amounted to the imposition of an unwarranted penalty on Gypsum.Nor do we think that anything in the Hartford Empire cases, 323 U. S. 386; 324 U. S. 324 U.S. 570, to which the lower court attached much weight, justifies what was done here. The basic difference between Hartford and this case is that, in Hartford, the injunction against infringement suits on Hartford's misused patents was part of the original relief granted the Government, whereas here, that relief was added, without the taking of any evidence as to justifying intervening circumstances, some five years after the original Page 352 U. S. 475 decree was entered in the District Court, and three years after its enlargement pursuant to the 1950 decision of this Court, [Footnote 33] which made no mention of this type of relief.Moreover, the factors justifying such relief in Hartford were quite different from those involved here, in that the litigated findings of fact as to Hartford's violation of the antitrust laws were much broader than anything found here. See supra, p. 352 U. S. 470. Beyond this, in Hartford, only infringement suits against nondefendants were enjoined, and not, as here, suits against co-defendants; and despite the breadth of Hartford's violations, this Court held that Hartford was entitled to quantum meruit compensation for the pendente lite use of its patents unless further violations of the antitrust laws during that period were shown. No such violations on Gypsum's part were shown or claimed by the Government or appellees, except for the inclusion of the contract Counts in Gypsum's suits, a contention which has already been met. And although the Court in Hartford struck down royalty-free compulsory licensing as part of the relief, the District Court here in effect held these appellees entitled to three years' free use of Gypsum's patents. We thus find no parallel between this case and Hartford. [Footnote 34] Page 352 U. S. 476Our conclusions then are these: the enjoining of Counts I and II of Gypsum's Iowa suits was proper, and, upon remand, the District Court may, by appropriate modification of the decree of May 15, 1951, or otherwise, require Gypsum to discontinue and dismiss such Counts with prejudice. The enjoining of Counts III, IV and V of those suits was not justified upon this record, and, as to them, the case should be remanded to the District Court for the taking of evidence upon the issues of misuse and purge as they may relate to the period since February 1, 1948. We think it appropriate that these issues should be tried and disposed of by the antitrust court, rather than the Iowa court, both because of reasons already given, supra, p. 352 U. S. 463-464, and because of the antitrust court's familiarity with what has occurred in these protracted litigations. [Footnote 35] However, should the antitrust court conclude that Gypsum is not barred from recovery on Counts III, IV, or V by reason of unpurged patent misuse, we think that the trial and disposition of all other issues, including any defense of patent invalidity, should then take place in the District Courts in which the two suits are pending. There is no reason why the three-judge court should be burdened with such issues.Accordingly, we reverse the judgment below and remand the case to the District Court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtUnited States Gypsum Co. v. National Gypsum Co., 352 U.S. 457 (1957)United States Gypsum Co. v. National Gypsum Co.No. 11Argued November 5-6, 1956Decided February 25, 1957352 U.S. 457SyllabusAfter this Court, in United States v. United States Gypsum Co., 333 U. S. 364, reversed dismissal of the Government's suit to restrain violations of the Sherman Act through uniform patent-licensing agreements containing price-fixing provisions, appellees ceased paying royalties to appellant under those agreements; and they made no further payments until after new agreements without price-fixing provisions were entered into following entry in the antitrust suit of a final decree enjoining use of the old agreements. Subsequently, appellant sued appellees for the use of its patents during that period. It asserted three alternative grounds for recovery: (a) the royalty provisions of the old licensing agreements, (b) the reasonable value of the use of its patents, and (c) damages for patent infringement. On petition of appellees, the antitrust court modified its decree in the antitrust case so as to require appellant to dismiss with prejudice its suits against appellees. The court took no evidence beyond that already in the record in the antitrust proceeding, and the record was barren of any facts with respect to the situation existing in the industry since 1941.Held:1. By virtue of its reservation of jurisdiction in its antitrust decree to make such "directions" and "modifications" as may be appropriate to the "carrying out" and "enforcement" of that decree, the District Court had jurisdiction to grant relief. Pp. 352 U. S. 463-464.2. The enjoining of appellant's suits for royalties under the outlawed licensing agreements was proper, and, upon remand, the District Court, by appropriate modification of its decree in the antitrust case or otherwise, may require appellant to dismiss those claims. Pp. 352 U. S. 464-465, 352 U. S. 476.3. The enjoining of appellant's suits for compensation on a quantum meruit basis and for damages for patent infringement was not justified upon the record, and the case is remanded to the District Court for the taking of evidence on the issues of misuse of patents and purge of such misuse as they may relate to the period since February 1, 1948. Pp. 352 U. S. 465-476. Page 352 U. S. 458(a) In the circumstances of this case, the District Court erred in holding that appellant's assertion of claims based upon the outlawed licensing agreements constituted a "fresh" misuse of its patents by appellant. Pp. 352 U. S. 466-468.(b) The District Court's judgment cannot be supported on the ground that the misuse of appellant's patents had not been purged, because (1) the only misuse of appellant's patents ever adjudicated in the antitrust case was that arising from the uniform price-fixing provisions of the licensing agreements, (2) the use of those agreements was terminated upon entry of the 1948 decree in the antitrust case, and (3) the record is bare of any facts relating to the situation in the industry since 1941. Pp. 352 U. S. 465, 352 U. S. 468-473.(c) The District Court erred in holding that, regardless of whether they had been purged, the "old" misuse of its patents barred appellant from recovering damages for their infringement. Hartford Empire Co. v. United States, 323 U. S. 386, 324 U. S. 324 U.S. 570, distinguished. Pp. 352 U. S. 473-476.(d) It is appropriate that the issues of misuse and purge since February 1, 1948, should be tried and disposed of by the antitrust court, rather than the courts in which appellant's suits were brought, both because of the relationship of these issues to the decree in the antitrust case and because of the antitrust court's familiarity with what has occurred in these protracted litigations. P. 352 U. S. 476.4. Should the antitrust court conclude that appellant is not barred, by reason of unpurged patent misuse, from recovery of compensation on a quantum meruit basis or from recovery of damages for patent infringement, the trial and disposition of all other issues, including any defense of patent invalidity, should then take place in the courts in which appellant's suits against appellees are pending. P. 352 U. S. 476.Reversed and remanded. Page 352 U. S. 459

2000_99-1038

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 67.John G. Roberts, Jr., argued the cause for petitioner.With him on the briefs were David G. Leitch, H. Christopher Bartolomucci, Ronald E. Meisburg, Anna M. Dailey, and Donna C. Kelly.John R. Mooney argued the cause for respondents. With him on the brief were Jonathan P. Hiatt, James B. Coppess, Judith Rivlin, Charles F. Donnelly, and Laurence Gold.Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, William Kanter, Mark W Pennak, Nancy E. McFadden, Paul M. Geier, and Peter J. Plocki. *JUSTICE BREYER delivered the opinion of the Court.A labor arbitrator ordered an employer to reinstate an employee truck driver who had twice tested positive for marijuana. The question before us is whether considerations of public policy require courts to refuse to enforce that arbitration award. We conclude that they do not. The courts may enforce the award. And the employer must reinstate, rather than discharge, the employee.*Briefs of amici curiae urging reversal were filed for the Air Transport Association of America et al. by John J. Gallagher and Neal D. Mollen; for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for Exxon Mobile Corp. by Walter E. Dellinger and John F. Daum; and for the Institute for a Drug-Free Workplace by Peter A. Susser.Theodore J. St. Antoine, John Kagel, and David E. Feller filed a brief for the National Academy of Arbitrators as amicus curiae urging affirmance.6060 EASTERN ASSOCIATED COAL CORP. v. MINE WORKERSIPetitioner, Eastern Associated Coal Corp., and respondent, United Mine Workers of America, are parties to a collective-bargaining agreement with arbitration provisions. The agreement specifies that, in arbitration, in order to discharge an employee, Eastern must prove it has "just cause." Otherwise the arbitrator will order the employee reinstated. The arbitrator's decision is final. App. 28-31.James Smith worked for Eastern as a member of a road crew, a job that required him to drive heavy trucklike vehicles on public highways. As a truck driver, Smith was subject to Department of Transportation (DOT) regulations requiring random drug testing of workers engaged in "safety-sensitive" tasks. 49 CFR §§ 382.301, 382.305 (1999).In March 1996, Smith tested positive for marijuana.Eastern sought to discharge Smith. The union went to arbitration, and the arbitrator concluded that Smith's positive drug test did not amount to "just cause" for discharge. Instead the arbitrator ordered Smith's reinstatement, provided that Smith (1) accept a suspension of 30 days without pay, (2) participate in a substance-abuse program, and (3) undergo drug tests at the discretion of Eastern (or an approved substance-abuse professional) for the next five years.Between April 1996 and January 1997, Smith passed four random drug tests. But in July 1997 he again tested positive for marijuana. Eastern again sought to discharge Smith. The union again went to arbitration, and the arbitrator again concluded that Smith's use of marijuana did not amount to "just cause" for discharge, in light of two mitigating circumstances. First, Smith had been a good employee for 17 years. App. to Pet. for Cert. 26a-27a. And, second, Smith had made a credible and "very personal appeal under oath ... concerning a personal/family problem which caused this one time lapse in drug usage." Id., at 28a.The arbitrator ordered Smith's reinstatement provided that Smith (1) accept a new suspension without pay, this time61for slightly more than three months; (2) reimburse Eastern and the union for the costs of both arbitration proceedings; (3) continue to participate in a substance-abuse program; (4) continue to undergo random drug testing; and (5) provide Eastern with a signed, undated letter of resignation, to take effect if Smith again tested positive within the next five years. Id., at 29a.Eastern brought suit in federal court seeking to have the arbitrator's award vacated, arguing that the award contravened a public policy against the operation of dangerous machinery by workers who test positive for drugs. 66 F. Supp. 2d 796 (SDWV 1998). The District Court, while recognizing a strong regulation-based public policy against drug use by workers who perform safety-sensitive functions, held that Smith's conditional reinstatement did not violate that policy. Id., at 804-805. And it ordered the award's enforcement. Id., at 805.The Court of Appeals for the Fourth Circuit affirmed on the reasoning of the District Court. 188 F.3d 501, 1999 WL 635632 (1999) (unpublished). We granted certiorari in light of disagreement among the Circuits. Compare id., at **1 (holding that public policy does not prohibit "reinstatement of employees who have used illegal drugs in the past"), with, e. g., Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 852 (CA1 1997) (holding that public policy prohibits enforcement of a similar arbitration award). We now affirm the Fourth Circuit's determination.IIEastern claims that considerations of public policy make the arbitration award unenforceable. In considering this claim, we must assume that the collective-bargaining agreement itself calls for Smith's reinstatement. That is because both employer and union have granted to the arbitrator the authority to interpret the meaning of their contract's language, including such words as "just cause." See Steelwork-6262 EASTERN ASSOCIATED COAL CORP. v. MINE WORKERSers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 599 (1960). They have "bargained for" the "arbitrator's construction" of their agreement. Ibid. And courts will set aside the arbitrator's interpretation of what their agreement means only in rare instances. Id., at 596. Of course, an arbitrator's award "must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice." Paperworkers v. Misco, Inc., 484 U. S. 29, 38 (1987). "But as long as [an honest] arbitrator is even arguably construing or applying the contract and acting within the scope of his authority," the fact that "a court is convinced he committed serious error does not suffice to overturn his decision." Ibid.; see also Enterprise Wheel, supra, at 596 (the "proper" judicial approach to a labor arbitration award is to "refus[e] ... to review the merits"). Eastern does not claim here that the arbitrator acted outside the scope of his contractually delegated authority. Hence we must treat the arbitrator's award as if it represented an agreement between Eastern and the union as to the proper meaning of the contract's words "just cause." See St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel and Its Progeny, 75 Mich. L. Rev. 1137, 1155 (1977). For present purposes, the award is not distinguishable from the contractual agreement.We must then decide whether a contractual reinstatement requirement would fall within the legal exception that makes unenforceable "a collective-bargaining agreement that is contrary to public policy." W R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 766 (1983). The Court has made clear that any such public policy must be "explicit," "well defined," and "dominant." Ibid. It must be "ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests.''' Ibid. (quoting Muschany v. United States, 324 U. S. 49, 66 (1945)); accord, Misco, supra, at 43. And, of course, the question to be answered is not whether Smith's drug use itself violates public63policy, but whether the agreement to reinstate him does so. To put the question more specifically, does a contractual agreement to reinstate Smith with specified conditions, see App. to Pet. for Cert. 29a, run contrary to an explicit, welldefined, and dominant public policy, as ascertained by reference to positive law and not from general considerations of supposed public interests? See Misco, supra, at 43.IIIEastern initially argues that the District Court erred by asking, not whether the award is "contrary to" public policy "as ascertained by reference" to positive law, but whether the award "violates" positive law, a standard Eastern says is too narrow. We believe, however, that the District Court correctly articulated the standard set out in W R. Grace and Misco, see 66 F. Supp. 2d, at 803 (quoting Misco, supra, at 43), and applied that standard to reach the right result.We agree, in principle, that courts' authority to invoke the public policy exception is not limited solely to instances where the arbitration award itself violates positive law. Nevertheless, the public policy exception is narrow and must satisfy the principles set forth in W R. Grace and Misco. Moreover, in a case like the one before us, where two political branches have created a detailed regulatory regime in a specific field, courts should approach with particular caution pleas to divine further public policy in that area.Eastern asserts that a public policy against reinstatement of workers who use drugs can be discerned from an examination of that regulatory regime, which consists of the Omnibus Transportation Employee Testing Act of 1991 and DOT's implementing regulations. The Testing Act embodies a congressional finding that "the greatest efforts must be expended to eliminate the ... use of illegal drugs, whether on or off duty, by those individuals who are involved in [certain safety-sensitive positions, including] the operation of ... trucks." Pub. L. 102-143, §2(3), 105 Stat. 953. The Act6464 EASTERN ASSOCIATED COAL CORP. v. MINE WORKERSadds that "increased testing" is the "most effective deterrent" to "use of illegal drugs." § 2(5). It requires the Secretary of Transportation to promulgate regulations requiring "testing of operators of commercial motor vehicles for the use of a controlled substance." 49 U. S. C. § 31306(b)(1)(A) (1994 ed., Supp. III). It mandates suspension of those operators who have driven a commercial motor vehicle while under the influence of drugs. 49 U. S. C. § 31310(b)(1)(A) (requiring suspension of at least one year for a first offense); § 31310(c)(2) (requiring suspension of at least 10 years for a second offense). And DOT's implementing regulations set forth sanctions applicable to those who test positive for illegal drugs. 49 CFR § 382.605 (1999).In Eastern's view, these provisions embody a strong public policy against drug use by transportation workers in safetysensitive positions and in favor of random drug testing in order to detect that use. Eastern argues that reinstatement of a driver who has twice failed random drug tests would undermine that policy-to the point where a judge must set aside an employer-union agreement requiring reinstatement.Eastern's argument, however, loses much of its force when one considers further provisions of the Act that make clear that the Act's remedial aims are complex. The Act says that "rehabilitation is a critical component of any testing program," § 2(7), 105 Stat. 953, that rehabilitation "should be made available to individuals, as appropriate," ibid., and that DOT must promulgate regulations for "rehabilitation programs," 49 U. S. C. § 31306(e). The DOT regulations specifically state that a driver who has tested positive for drugs cannot return to a safety-sensitive position until (1) the driver has been evaluated by a "substance abuse professional" to determine if treatment is needed, 49 CFR § 382.605(b) (1999); (2) the substance-abuse professional has certified that the driver has followed any rehabilitation program prescribed, § 382.605(c)(2)(i); and (3) the driver has passed a return-to-duty drug test, § 382.605(c)(1). In addi-65tion, (4) the driver must be subject to at least six random drug tests during the first year after returning to the job. § 382.605(c)(2)(ii). Neither the Act nor the regulations forbid an employer to reinstate in a safety-sensitive position an employee who fails a random drug test once or twice. The congressional and regulatory directives require only that the above-stated prerequisites to reinstatement be met.Moreover, when promulgating these regulations, DOT decided not to require employers either to provide rehabilitation or to "hold a job open for a driver" who has tested positive, on the basis that such decisions "should be left to management/driver negotiation." 59 Fed. Reg. 7502 (1994). That determination reflects basic background labor law principles, which caution against interference with labormanagement agreements about appropriate employee discipline. See, e. g., California Brewers Assn. v. Bryant, 444 U. S. 598, 608 (1980) (noting that it is "this Nation's longstanding labor policy" to give "employers and employees the freedom through collective bargaining to establish conditions of employment").We believe that these expressions of positive law embody several relevant policies. As Eastern points out, these policies include Testing Act policies against drug use by employees in safety-sensitive transportation positions and in favor of drug testing. They also include a Testing Act policy favoring rehabilitation of employees who use drugs. And the relevant statutory and regulatory provisions must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation.The award before us is not contrary to these several policies, taken together. The award does not condone Smith's conduct or ignore the risk to public safety that drug use by truck drivers may pose. Rather, the award punishes Smith by suspending him for three months, thereby depriving him of nearly $9,000 in lost wages, Record Doc. 29, App. A, p. 2;6666 EASTERN ASSOCIATED COAL CORP. v. MINE WORKERSit requires him to pay the arbitration costs of both sides; it insists upon further substance-abuse treatment and testing; and it makes clear (by requiring Smith to provide a signed letter of resignation) that one more failed test means discharge.The award violates no specific provision of any law or regulation. It is consistent with DOT rules requiring completion of substance-abuse treatment before returning to work, see 49 CFR § 382.605(c)(2)(i) (1999), for it does not preclude Eastern from assigning Smith to a non-safety-sensitive position until Smith completes the prescribed treatment program. It is consistent with the Testing Act's i-year and 10-year driving license suspension requirements, for those requirements apply only to drivers who, unlike Smith, actually operated vehicles under the influence of drugs. See 49 U. S. C. §§ 31310(b), (c). The award is also consistent with the Act's rehabilitative concerns, for it requires substanceabuse treatment and testing before Smith can return to work.The fact that Smith is a recidivist-that he has failed drug tests twice-is not sufficient to tip the balance in Eastern's favor. The award punishes Smith more severely for his second lapse. And that more severe punishment, which included a 90-day suspension, would have satisfied even a "recidivist" rule that DOT once proposed but did not adopt-a rule that would have punished two failed drug tests, not with discharge, but with a driving suspension of 60 days. 57 Fed. Reg. 59585 (1992). Eastern argues that DOT's withdrawal of its proposed rule leaves open the possibility that discharge is the appropriate penalty for repeat offenders. That argument fails, however, because DOT based its withdrawal, not upon a determination that a more severe penalty was needed, but upon a determination to leave in place, as the "only driving prohibition period for a controlled substances violation," the "completion of rehabilitation requirements67and a return-to-duty test with a negative result." 59 Fed. Reg. 7493 (1994).Regarding drug use by persons in safety-sensitive positions, then, Congress has enacted a detailed statute. And Congress has delegated to the Secretary of Transportation authority to issue further detailed regulations on that subject. Upon careful consideration, including public notice and comment, the Secretary has done so. Neither Congress nor the Secretary has seen fit to mandate the discharge of a worker who twice tests positive for drugs. We hesitate to infer a public policy in this area that goes beyond the careful and detailed scheme Congress and the Secretary have created.We recognize that reasonable people can differ as to whether reinstatement or discharge is the more appropriate remedy here. But both employer and union have agreed to entrust this remedial decision to an arbitrator. We cannot find in the Act, the regulations, or any other law or legal precedent an "explicit," "well defined," "dominant" public policy to which the arbitrator's decision "runs contrary." Misco, 484 U. S., at 43; W R. Grace, 461 U. S., at 766. We conclude that the lower courts correctly rejected Eastern's public policy claim. The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 2000SyllabusEASTERN ASSOCIATED COAL CORP. v. UNITED MINE WORKERS OF AMERICA, DISTRICT 17, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 99-1038. Argued October 2, 2000-Decided November 28, 2000The arbitration provisions in petitioner Eastern Associated Coal Corp.'s collective-bargaining agreement with respondent union specify, inter alia, that Eastern must prove in binding arbitration that it has "just cause" to discharge an employee, or else the arbitrator will order the employee reinstated. James Smith worked for Eastern as a truck driver subject to Department of Transportation (DOT) regulations requiring random drug testing of workers engaged in "safety-sensitive" tasks. After each of two occasions on which Smith tested positive for marijuana, Eastern sought to discharge him. Each time, the union went to arbitration, and the arbitrator concluded that the drug use did not amount to "just cause" and ordered Smith's reinstatement on certain conditions. On the second occasion, Eastern filed suit to vacate the arbitrator's award. The District Court ordered the award's enforcement, holding that Smith's conditional reinstatement did not violate the strong regulation-based public policy against drug use by workers who perform safety-sensitive functions. The Fourth Circuit affirmed.Held: Public policy considerations do not require courts to refuse to enforce an arbitration award ordering an employer to reinstate an employee truck driver who twice tested positive for marijuana. Pp.61-67.(a) The Court assumes that the collective-bargaining agreement itself calls for Smith's reinstatement, as the parties have granted the arbitrator authority to interpret the meaning of their contract's language, including such words as "just cause," see Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 599, and Eastern does not claim here that the arbitrator acted outside the scope of his contractually delegated authority, see, e. g., Paperworkers v. Misco, Inc., 484 U. S. 29, 38. Since the award is not distinguishable from the contractual agreement, the Court must decide whether a contractual reinstatement requirement would fall within the legal exception that makes unenforceable "a collective bargaining agreement that is contrary to public policy." W R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 766. Any such policy must be "explicit," "well defined," and "dominant," and it must be "as-5858 EASTERN ASSOCIATED COAL CORP. v. MINE WORKERSSyllabuscertained by reference to the laws and legal precedents, not from general considerations of supposed public interests." Ibid. The question is not whether Smith's drug use itself violates public policy, but whether the agreement to reinstate him does so. Pp. 61-63.(b) A contractual agreement to reinstate Smith with specified conditions does not run contrary to public policy. The District Court correctly articulated the standard set out in W R. Grace and Misco and applied that standard to reach the right result. The public policy exception is narrow and must satisfy the principles set forth in those cases. Moreover, where two political branches have created a detailed regulatory regime in a specific field, courts should approach with particular caution pleas to divine further public policy in that area. Eastern asserts that a public policy against reinstatement of workers who use drugs can be discerned from an examination of the Omnibus Transportation Employee Testing Act of 1991 and DOT's implementing regulations. However, these expressions of positive law embody not just policies against drug use by employees in safety-sensitive transportation positions and in favor of drug testing, but also include a Testing Act policy favoring rehabilitation of employees who use drugs. And the relevant statutory and regulatory provisions must be read in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation. See, e. g., California Brewers Assn. v. Bryant, 444 U. S. 598, 608. The award here is not contrary to these several policies, taken together, as it does not condone Smith's conduct or ignore the risk to public safety that drug use by truck drivers may pose, but punishes Smith by placing conditions on his reinstatement. It violates no specific provision of any law or regulation, but is consistent with DOT rules requiring completion of substance-abuse treatment before returning to work and with the Act's driving license suspension requirements and its rehabilitative concerns. Moreover, the fact that Smith is a recidivist is not sufficient to tip the balance in Eastern's favor. Eastern's argument that DOT's withdrawal of a proposed "recidivist" rule leaves open the possibility that discharge is the appropriate penalty for repeat offenders fails because DOT based the withdrawal, not upon a determination that a more severe penalty was needed, but upon a determination to leave in place other remedies. The Court cannot find in the Act, the regulations, or any other law or legal precedent an explicit, well defined, dominant public policy to which the arbitrator's decision runs contrary. Pp.63-67.188 F.3d 501, affirmed.59Full Text of Opinion

1981_80-1556

JUSTICE WHITE delivered the opinion of the Court.In this case, both Texas and California assert the right to levy state death taxes on the estate of Howard Hughes. The laws of each State impose an inheritance tax on the real and tangible personal property located within its borders, and upon the intangible personalty, wherever situated, of a person domiciled in the State at the time of death. Under the laws of Texas and California, an individual has but one domicile at any time. Taxing officials in each State assert that Howard Hughes was domiciled in their State at the time of his death. The issue before us is whether the Federal Interpleader Act, 28 U.S.C. § 1335, provides a jurisdictional basis for resolution of inconsistent death tax claims by the officials of two States.IThis case is the sequel to California v. Texas, 437 U. S. 601 (1978). There, California petitioned for leave to file a complaint against Texas under this Court's original jurisdiction. At that time, we denied the motion. In concurring opinions, however, four Justices suggested that a determination of Hughes' domicile might be obtained in federal district court pursuant to the Federal Interpleader Act, 28 U.S.C. § 1335. [Footnote 1] Page 457 U. S. 87Three weeks after the decision in California v. Texas, the administrator of the estate filed a statutory interpleader action in the United States District Court for the Western District of Texas. Asserting that the officials of the two States were seeking to tax the estate on the basis of inconsistent claims that each of their respective States was Howard Hughes' domicile at death, it requested the District Court to adjudicate the issue of domicile. The District Court entered a temporary restraining order prohibiting the California and Texas taxing officials from pursuing domicile-based inheritance tax claims in any other forum, including their own state courts.The District Court then dismissed for lack of subject matter jurisdiction for failure to satisfy the requirement of § 1335 that there be diversity of citizenship between at least two adverse claimants. It found that the administrator was not a claimant. Among the claimants, it held that the County Treasurer for Los Angeles County was a citizen of California for diversity purposes, citing Moor v. County of Alameda, 411 U. S. 693 (1973). The court ruled, however, that the State of Texas, rather than its taxing officials, was the opposing claimant, and that, because a State is not a citizen of itself for diversity purposes, Postal Telegraph Cable Co. v. Page 457 U. S. 88 Alabama, 155 U. S. 482 (1894), the action did not involve two or more adverse claimants of diverse citizenship as required by the statute.The Court of Appeals for the Fifth Circuit reversed the order of dismissal. Lummis v. White, 629 F.2d 397 (1980). In addition to the County Treasurer, it found the administrator of the estate, a citizen of Nevada, to be a claimant for the purposes of statutory interpleader. It recognized that Treinies v. Sunshine Mining Co., 308 U. S. 66 (1939), held that a citizenship of a disinterested stakeholder could not be considered in determining interpleader jurisdiction. Reasoning, however, that here the administrator's legal duty of preserving the estate's assets from the double death tax liability and his assertion that Hughes was domiciled in Nevada, which has no state death tax, made the administrator an interested stakeholder, the court further held that the citizenship of an interested stakeholder may be considered for purposes of establishing diversity under § 1335. The requisite diversity -- between the administrator and the County Treasurer of Los Angeles County -- was therefore present.The Court of Appeals went on to reject the States' claim that, although the suit was nominally against state officials, it was in effect a suit against two sovereign States barred by the Eleventh Amendment. Recognizing that Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), had squarely held that an interpleader action in all critical respects similar to this one was barred by the Eleventh Amendment, the Court of Appeals, relying on the concurring views of four Justices in California v. Texas, held that Edelman v. Jordan, 415 U. S. 651 (1974), had silently, but effectively, overruled Worcester, and that the Eleventh Amendment as interpreted in Edelman did not bar the interpleader action.The California officials petitioned for certiorari and, at the same time, filed a new motion seeking leave to file a complaint Page 457 U. S. 89 against Texas under this Court's original jurisdiction. Because of the troubling issues involving federal court jurisdiction in such disputes, we granted certiorari. 452 U.S. 904.IIIn Worcester County Trust Co. v. Riley, supra, the States of California and Massachusetts each claimed to be the domicile of a decedent and to have the right to assess death taxes on his entire intangible estate. A federal interpleader action followed, the estate naming as defendant the revenue officers of California and Massachusetts. This Court unanimously held that the case was, in reality, a suit against the States, and that it was barred by the Eleventh Amendment. In arriving at this conclusion, the Court applied the accepted rules (1) that"a suit nominally against individuals, but restraining or otherwise affecting their action as state officers, may be, in substance, a suit against the state, which the Constitution forbids,"302 U.S. at 302 U. S. 296, and (2) that,"generally, suits to restrain action of state officials can, consistently with the constitutional prohibition, be prosecuted only when the action sought to be restrained is without the authority of state law or contravenes the statutes or Constitution of the United States."Id. at 302 U. S. 297. The Court held that there could be no credible claim of a violation of federal law, since it was clear from prior cases that inconsistent determinations by the courts of two States as to the domicile of a taxpayer did not raise a substantial federal constitutional question. The Court also concluded that the claim that the officials were acting without authority under state law was insufficient. Hence,"[s]ince the proposed action is the performance of a duty imposed by the statute of the state upon state officials through whom alone a state can act, restraint of their action, which the bill of complaint prays, is restraint of state action, and the suit is, in substance, one against the State which the Eleventh Amendment forbids."Id. at 302 U. S. 299-300. Page 457 U. S. 90The Court of Appeals' opinion that Edelman v. Jordan had overruled Worcester rested on a passage in the Edelman opinion that it interpreted as limiting the bar of the Eleventh Amendment to suits "by private parties seeking to impose a liability which must be paid from public funds in the state treasury." 415 U.S. at 415 U. S. 663. Because the interpleader plaintiff, the administrator of the estate, had sought only prospective relief, the appellate court held that the Eleventh Amendment did not bar his suit.We are unpersuaded by this view of Edelman. That case involved a suit against state officials claiming that their administration of a particular federal-state program was contrary to federal regulations and the Constitution. Among other things, the plaintiffs sought a judgment for benefits that had not been paid them. The case was against individual officers who allegedly were violating federal law, and it therefore arguably fell outside the reach of the Eleventh Amendment under Ex parte Young, 209 U. S. 123 (1908). Edelman held, however, that the case was, in effect, a suit against the State itself, because a judgment payable from state funds was demanded. It was correctly noted that Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945), was authority for this result.Edelman did not hold, however, that the Eleventh Amendment never applies unless a judgment for money payable from the state treasury is sought. [Footnote 2] It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought. The Eleventh Amendment reads:"The Judicial power of the United States shall not be construed to Page 457 U. S. 91 extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State. . . ."Thus, the Eleventh Amendment, by its terms, clearly applies to a suit seeking an injunction, a remedy available only from equity. To adopt the suggested rule, limiting the strictures of the Eleventh Amendment to a suit for a money judgment, would ignore the explicit language and contradict the very words of the Amendment itself. Edelman did not embrace, much less imply, any such proposition.Neither did Edelman deal with a suit naming a state officer as defendant, but not alleging a violation of either federal or state law. Thus, there was no occasion in the opinion to cite or discuss the unanimous opinion in Worcester that the Eleventh Amendment bars suits against state officers unless they are alleged to be acting contrary to federal law or against the authority of state law. Edelman did not hold that suits against state officers who are not alleged to be acting against federal or state law are permissible under the Eleventh Amendment if only prospective relief is sought. Whether or not that would be the preferable rule, Edelman v. Jordan did not adopt it.Furthermore, if that were to be the law, Worcester must in major part be overruled. We are unwilling, however, to overrule that decision and narrow the scope of the Eleventh Amendment to the extent that action would entail. We hold that the Eleventh Amendment bars the statutory interpleader sought in this case. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtCory v. White, 457 U.S. 85 (1982)Cory v. WhiteNo. 80-1556Argued January 18, 1982Decided June 14, 1982457 U.S. 85SyllabusBoth Texas and California assert the right to levy state death taxes on the estate of Howard Hughes, the taxing officials of each State claiming that Hughes was domiciled in their State at the time of his death. The administrator of the estate filed an action in Federal District Court under the Federal Interpleader Act, alleging that the respective state officials were seeking to tax the estate on the basis of inconsistent claims. The District Court dismissed the action for lack of subject matter jurisdiction because of the failure to satisfy the Act's requirement that there be diversity of citizenship between at least two adverse parties. The Court of Appeals reversed, holding that the requisite diversity was present between the administrator and the County Treasurer of Los Angeles County. The court rejected the State's claim that, although the suit was nominally against state officials, it was in effect a suit against two sovereign States barred by the Eleventh Amendment.Held: The Eleventh Amendment bars the statutory interpleader action. Worcester County Trust Co. v. Riley, 302 U. S. 292. Contrary to the Court of Appeals' view, Edelman v. Jordan, 415 U. S. 651, did not overrule Worcester County Trust Co. Pp. 457 U. S. 89-91.629 F.2d 397, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 457 U. S. 91. POWELL, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 457 U. S. 92. Page 457 U. S. 86

1978_78-3

MR. JUSTICE STEWART announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS joined.Under § 105-1307 of the Georgia Code (1978) (hereinafter Georgia statute), [Footnote 1] the mother of an illegitimate child can Page 441 U. S. 349 sue for the wrongful death of that child. A father who has legitimated a child can also sue for the wrongful death of the child if there is no mother. A father who has not legitimated a child, however, is precluded from maintaining a wrongful death action. The question presented in this case is whether this statutory scheme violates the Equal Protection or Due Process Clause of the Fourteenth Amendment by denying the father of an illegitimate child who has not legitimated the child the right to sue for the child's wrongful death.IThe appellant was the biological father of Lemuel Parham, a minor child who was killed in an automobile collision. The child's mother, Cassandra Moreen, was killed in the same collision. The appellant and Moreen were never married to each other, and the appellant did not legitimate the child as he could have done under Georgia law. [Footnote 2] The appellant did, however, sign the child's birth certificate and contribute to his support. [Footnote 3] The child took the appellant's name, and was visited by the appellant on a regular basis. Page 441 U. S. 350After the child was killed in the automobile collision, the appellant brought an action seeking to recover for the allegedly wrongful death. The complaint named the appellee (the driver of the other automobile involved in the collision) as the defendant, and charged that negligence on the part of the appellee had caused the death of the child. The child's maternal grandmother, acting as administratrix of his estate, also brought a lawsuit against the appellee to recover for the child's wrongful death. [Footnote 4]The appellee filed a motion for summary judgment in the present case, asserting that, under the Georgia statute, the appellant was precluded from recovering for his illegitimate child's wrongful death. The trial court held that the Georgia statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, accordingly, denied a summary judgment in favor of the appellee. On appeal, the Georgia Supreme Court reversed the ruling of the trial court. 241 Ga.198, 243 S.E.2d 867. The appellate court found that the statutory classification was rationally related to three legitimate state interests: (1) the interest in avoiding difficult problems of proving paternity in wrongful death actions; (2) the interest in promoting a legitimate family unit; and (3) the interest in setting a standard of morality by not according to the father of an illegitimate child the statutory right to sue for the child's death. Accordingly, the court held that the statute did not violate either the Equal Protection or Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction of this appeal from the judgment of the Georgia Supreme Court. 439 U.S. 815. Page 441 U. S. 351IIState laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause. Lockport v. Citizens for Community Action, 430 U. S. 259, 430 U. S. 272. Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective. New York City Transit Authority v. Beazer, 440 U. S. 568; Vance v. Bradley, 440 U. S. 93; Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 427 U. S. 314; Dandridge v. Williams, 397 U. S. 471, 397 U. S. 485.Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect." McLaughlin v. Florida, 379 U. S. 184; Brown v. Board of Education, 347 U. S. 483. And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immutable human attributes. See, e.g., Oyama v. California, 332 U. S. 633 (national origin); Graham v. Richardson, 403 U. S. 365 (alienage); Gomez v. Perez, 409 U. S. 535 (illegitimacy); Reed v. Reed, 404 U. S. 71 (gender).In the absence of invidious discrimination, however, a court is not free under the aegis of the Equal Protection Clause to substitute its judgment for the will of the people of a State as expressed in the laws passed by their popularly elected legislatures."The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process, and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."Vance v. Bradley, 440 U.S. at 440 U. S. 97 (footnote omitted). The threshold Page 441 U. S. 352 question, therefore, is whether the Georgia statute is invidiously discriminatory. If it is not, it is entitled to a presumption of validity, and will be upheld"unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational."Ibid.IIIThe appellant relies on decisions of the Court that have invalidated statutory classifications based upon illegitimacy and upon gender to support his claim that the Georgia statute is unconstitutional. Both of these lines of cases have involved laws reflecting invidious discrimination against a particular class. We conclude, however, that neither line of decisions is applicable in the present case.AThe Court has held on several occasions that state legislative classifications based upon illegitimacy -- i.e., that differentiate between illegitimate children and legitimate children -- violate the Equal Protection Clause. E.g., Trimble v. Gordon, 430 U. S. 762; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164. [Footnote 5] The basic rationale of these decisions is that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child, who is in no way responsible for his situation and is unable to change it. As MR. JUSTICE POWELL stated for the Court in the Weber case:"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond Page 441 U. S. 353 the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent."Id. at 406 U. S. 175.It is apparent that this rationale is in no way applicable to the Georgia statute now before us. The statute does not impose differing burdens or award differing benefits to legitimate and illegitimate children. It simply denies a natural father the right to sue for his illegitimate child's wrongful death. The appellant, as the natural father, was responsible for conceiving an illegitimate child, and had the opportunity to legitimate the child but failed to do so. Legitimation would have removed the stigma of bastardy and allowed the child to inherit from the father in the same manner as if born in lawful wedlock. Ga.Code § 7103 (1978). Unlike the illegitimate child, for whom the status of illegitimacy is involuntary and immutable, the appellant here was responsible for fostering an illegitimate child and for failing to change its status. It is thus neither illogical nor unjust for society to express its "condemnation of irresponsible liaisons beyond the bounds of marriage" by not conferring upon a biological father the statutory right to sue for the wrongful death of his illegitimate child. The justifications for judicial sensitivity to the constitutionality of differing legislative treatment of legitimate and illegitimate children are simply absent when a classification affects only the fathers of deceased illegitimate children.BThe Court has also held that certain classifications based upon sex are invalid under the Equal Protection Clause, e.g., Page 441 U. S. 354 Reed v. Reed, 404 U. S. 71; Stanton v. Stanton, 421 U. S. 7; Frontiero v. Richardson, 411 U. S. 677; Craig v. Boren, 429 U. S. 190. Underlying these decisions is the principle that a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class. Thus, in Reed v. Reed, supra, the Court was faced with the question of the constitutionality of an Idaho probate code provision that gave men a mandatory preference over women, in the same degree of relationship to the decedent, in the administration of the decedent's estate. The Court held that,"[b]y providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause."404 U.S. at 404 U. S. 77. Similarly, in Frontiero v. Richardson, supra, the Court invalidated the federal Armed Services benefit statutes that were based on the assumption that female spouses of servicemen were financially dependent, while similarly situated male spouses of servicewomen were not. 411 U.S. at 411 U. S. 690-691. And in the Stanton case, the Court held constitutionally invalid a Utah statute which provided that males had to reach a greater age than females to attain majority status. In reaching this result, the Court rejected the "old notion" that the female is "destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas." 421 U.S. at 421 U. S. 14-15. See also Orr v. Orr, 440 U. S. 268.In cases where men and women are not similarly situated, however, and a statutory classification is realistically based upon the differences in their situations, this Court has upheld its validity. In Schlesinger v. Ballard, 419 U. S. 498, for example, the Court upheld the constitutionality of a federal statute which provided that male naval officers who were not promoted within a certain length of time were subject to mandatory discharge, while female naval officers who were not Page 441 U. S. 355 promoted within the same length of time could continue as officers. Because of restrictions on women officers' seagoing service, their opportunities to compile records entitling them to promotion were more restricted than were those of their male counterparts. Thus, unlike the Reed and Frontiero cases, where the gender-based classifications were based solely on administrative convenience and outworn cliches, the different treatment in the Schlesinger case reflected"not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service."419 U.S. at 419 U. S. 508 (emphasis in original).With these principles in mind, it is clear that the Georgia statute does not invidiously discriminate against the appellant simply because he is of the male sex. The fact is that mothers and fathers of illegitimate children are not similarly situated. Under Georgia law, only a father can, by voluntary unilateral action, make an illegitimate child legitimate. [Footnote 6] Unlike the mother of an illegitimate child, whose identity will rarely be in doubt, the identity of the father will frequently be unknown. Lalli v. Lalli, 439 U. S. 259. [Footnote 7] By coming forward Page 441 U. S. 356 with a motion under § 74-103 of the Georgia Code, however, a father can both establish his identity and make his illegitimate child legitimate. [Footnote 8]Thus, the conferral of the right of a natural father to sue for the wrongful death of his child only if he has previously acted to identify himself, undertake his paternal responsibilities, and make his child legitimate does not reflect any overbroad generalizations about men as a class, but rather the reality that, in Georgia, only a father can, by unilateral action, legitimate an illegitimate child. Since fathers who do legitimate their children can sue for wrongful death in precisely the same circumstances as married fathers whose children were legitimate ab initio, the statutory classification does not discriminate against fathers as a class, but instead distinguishes between fathers who have legitimated their children and those who have not. [Footnote 9] Such a classification is quite unlike those condemned in the Reed, Frontiero, and Stanton cases which, were premised upon overbroad generalizations and excluded Page 441 U. S. 357 all members of one sex, even though they were similarly situated with members of the other sex.IVHaving concluded that the Georgia statute does not invidiously discriminate against any class, we still must determine whether the statutory classification is rationally related to a permissible state objective.This Court has frequently recognized that a State has a legitimate interest in the maintenance of an accurate and efficient system for the disposition of property at death. E.g., Lalli v. Lalli, supra; Trimble v. Gordon, 430 U. S. 762; Labine v. Vincent, 401 U. S. 532. Of particular concern to the State is the existence of some mechanism for dealing with "the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates." Lalli v. Lalli, supra at 439 U. S. 265. See also Gomez v. Perez, 409 U.S. at 409 U. S. 538.This same state interest in avoiding fraudulent claims of paternity in order to maintain a fair and orderly system of decedent's property disposition is also present in the context of actions for wrongful death. If paternity has not been established before the commencement of a wrongful death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the father of the deceased child. Such uncertainty would make it difficult, if not impossible, for a defendant to settle a wrongful death action in many cases, since there would always exist the risk of a subsequent suit by another person claiming to be the father. [Footnote 10] The State of Georgia has chosen to deal with this problem by allowing only fathers who have established their paternity by legitimating their children to sue for wrongful Page 441 U. S. 358 death, and we cannot say that this solution is an irrational one. Cf. Lalli v. Lalli, 439 U. S. 259. [Footnote 11]The appellant argues, however, that whatever may be the problem with establishing paternity generally, there is no question in this case that he is the father. This argument misconceives the basic principle of the Equal Protection Clause. The function of that provision of the Constitution is to measure the validity of classifications created by state laws. [Footnote 12] Since we have concluded that the classification created by the Georgia statute is a rational means for dealing with the problem of proving paternity, it is constitutionally irrelevant that the appellant may be able to prove paternity in another manner.VThe appellant also alleges that the Georgia statute violates the Due Process Clause of the Fourteenth Amendment. Nowhere in the appellant's brief or oral argument, however, is there any explanation of how the Due Process Clause is implicated in this case. The only decision of this Court cited by the appellant that is even remotely related to his due process claim is Stanley v. Illinois, 405 U. S. 645. In the Stanley case, the Court held that a father of illegitimate children who had raised these children was entitled to a hearing on his fitness as a parent before they could be taken from him by the State of Illinois. The interests which the Court found controlling in Stanley were the integrity of the family against state interference and the freedom of a father to raise his own children. The present case is quite a different Page 441 U. S. 359 one, involving as it does only an asserted right to sue for money damages.For these reasons, the judgment of the Supreme Court of Georgia is affirmed.It is so ordered

U.S. Supreme CourtParham v. Hughes, 441 U.S. 347 (1979)Parham v. HughesNo. 78-3Argued January 15, 1979Decided April 24, 1979441 U.S. 347SyllabusA Georgia statute, while permitting the mother of an illegitimate child, or the father if he has legitimated the child and there is no mother, to sue for the wrongful death of the child, precludes a father who has not legitimated a child from so suing. Appellant, the father of an illegitimate child, whom he had not legitimated and who was killed, along with the mother, in an automobile accident, sued for the child's wrongful death, and the Georgia trial court, denying a summary judgment for the defendant (appellee), held that the statute violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Georgia Supreme Court reversed, holding that the statutory classification was rationally related to three specified legitimate state interests.Held: The judgment is affirmed. Pp. 441 U. S. 351-359; 441 U. S. 359-361.241 Ga.198, 243 S.E.2d 867, affirmed.MR. JUSTICE STEWART, joined by MR. CHIEF JUSTICE BURGER, MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS, concluded that:1. The Georgia statute does not violate the Equal Protection Clause. Pp. 441 U. S. 351-358.(a) If the statute is not invidiously discriminatory, it is entitled to a presumption of validity and will be upheld"unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational,"Vance v. Bradley, 440 U. S. 93, 440 U. S. 97. Pp. 441 U. S. 351-352.(b) The rationale that it is unjust and ineffective for society to express its condemnation of procreation outside the marital relationship by punishing the illegitimate child who is in no way responsible for his situation and is unable to change it, Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, is inapplicable to the statute in question, which does not impose differing burdens or award differing benefits to legitimate and illegitimate children, but simply denies a natural father the right to sue for his illegitimate child's wrongful death. Pp. 441 U. S. 352-353.(c) The statute does not invidiously discriminate against appellant simply because he is of the male sex. The conferral of the right of a Page 441 U. S. 348 natural father to sue for his child's wrongful death only if he has previously acted to identify himself, to undertake his paternal responsibilities, and to make his child legitimate, does not reflect any overbroad generalizations about men as a class, but rather the reality that, in Georgia, only a father can, by unilateral action, legitimate an illegitimate child. Reed v. Reed, 404 U. S. 71; Frontiero v. Richardson, 411 U. S. 677; Stanton v. Stanton, 421 U. S. 7, distinguished. Pp. 441 U. S. 353-357.(d) The statutory classification is a rational means for dealing with the problem of proving paternity. If paternity has not been established before the commencement of a wrongful death action, a defendant may be faced with the possibility of multiple lawsuits by individuals all claiming to be the deceased child's father. Pp. 441 U. S. 357-358.2. Nor does the Georgia statute violate the Due Process Clause, Stanley v. Illinois, 405 U. S. 645, distinguished. Pp. 441 U. S. 358-359.MR. JUSTICE POWELL concluded that the gender-based distinction in the Georgia statute does not violate equal protection, inasmuch as it is substantially related to the State's objective of avoiding difficult problems in proving paternity after the death of an illegitimate child. Pp. 441 U. S. 359-361.STEWART, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and REHNQUIST and STEVENS, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 441 U. S. 359. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL and BLACKMUN, JJ., joined, post, p. 441 U. S. 361.

1980_80-298

JUSTICE STEWART delivered the opinion of the Court.The Court of Appeals for the Sixth Circuit concluded that 38 U.S.C. § 2021(b)(3), a provision of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, does not require an employer to provide preferential scheduling of work hours for an employee who must be absent from work to fulfill his military reserve obligations. 613 F.2d 641. We granted certiorari to consider the petitioner's contention that an employer has a statutory duty to make work scheduling accommodations for reservist employees not made for other employees, whenever such accommodations reasonably can be accomplished. 449 U.S. 949. [Footnote 1]IIn 1975 and 1976, the years pertinent to this litigation, the petitioner was a full-time employee in the respondent's continuous process refinery in Lima, Ohio. The refinery was operated 24 hours a day, 7 days a week, 365 days a year. To insure that the burdens of weekend and shift work would be equitably divided among its employees over the course of a year, the respondent scheduled its employees to work five 8-hour days in a row weekly, but in a different 5-day sequence each week. Under the respondent's collective agreement with its union, however, an employee could, with the acquiescence of his foreman and if the change did not require the payment of overtime, exchange shifts with another employee.During the same period, the petitioner was a military reservist, [Footnote 2] Page 452 U. S. 552 and had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, the petitioner was required to attend training on days when he was scheduled to work at the refinery. Although the petitioner was able on four of these occasions to exchange shifts with other employees, he was unable to make such an exchange in most instances. The respondent provided him with leaves of absence to attend training, as 38 U.S.C. § 2024(d) [Footnote 3] required it to do, but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside his normal schedule. When the petitioner was on a leave of absence and could not arrange a switch with another employee, the respondent would make arrangements to fill the vacancy created by the petitioner's absence, arrangements often requiring the payment of overtime wages to the substitute.In 1976, the petitioner [Footnote 4] brought this action against the respondent alleging that it had violated the provisions of 38 U.S.C. §§ 2021(b)(3) [Footnote 5]and 2024(d). Noting that the Page 452 U. S. 553 first of these sections provides that an employer may not deny a military reservist in his employ any "incident or advantage of employment" because of the employee's obligations to the Reserves, and finding that "being scheduled for a full forty-hour week at the [respondent's] refinery constitutes an incident or advantage of employment," the District Court for the Northern District of Ohio granted summary judgment to the petitioner. 446 F. Supp. 616, 618, 619. The court awarded petitioner $1,086.72 for wages lost on those "work dates when an accommodation should have been made." Id. at 619. [Footnote 6]The Court of Appeals for the Sixth Circuit reversed. 613 F.2d 641. First, it determined that the respondent had met the requirements of § 2024(d). [Footnote 7] It noted that this section "guarantees terms and conditions of reemployment to reservists returning from inactive duty training," but found that "[i]t does not, however, protect reservists from discrimination by their employers between training assignments." Id. at 643-644.Next, the Court of Appeals rejected the District Court's Page 452 U. S. 554 interpretation of § 2021(b)(3). It held that this section "merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations." Id. at 646. The appellate court then concluded that the respondent had taken no discriminatory action that is proscribed by § 2021(b)(3):"The requirement of equal treatment was met in the present case. The parties agreed that appellee was regularly scheduled for forty-hour workweeks, as were his fellow employees. Further, Monroe was scheduled for weekend work in accordance with Sohio's established practice of rotating shifts to insure that all employees would work approximately an equal number of weekend days. Finally, he was treated the same as his coworkers with regard to the right to exchange shifts with other employees."Id. at 646.IIThis case presents the first occasion this Court has had to address issues arising from the statutory provisions, codified at 38 U.S.C. § 2021 et seq., specifically dealing with military reservists. [Footnote 8] We have, however, frequently interpreted the somewhat analogous statutory provisions entitling the returning regular veteran to reinstatement with his "seniority, status and pay" intact, 38 U.S.C. § 2021(a), most recently in Coy v. Republic Steel Corp., 447 U. S. 191, and Alabama Power Co. v. Davis, 431 U. S. 581.AStatutory reemployment rights for veterans date from the Nation's first peacetime draft law, passed in 1940, which provided that a veteran returning to civilian employment Page 452 U. S. 555 from active duty was entitled to reinstatement to the position that he had left or one of "like seniority, status, and pay." 38 U.S.C. § 2021(a). In 1951, in order to strengthen the Nation's Reserve Forces, Congress extended reinstatement rights to employees returning from training duty. See Pub.L. 51, ch. 144, § 1(5), 65 Stat. 75, 86-87. Thereafter, the Reserve Forces Act of 1955, Pub.L. 305, ch. 665, § 262(f), 69 Stat. 598, 602, provided that employees returning from active duty of more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions. In 1960, these reemployment rights were extended to National Guardsmen, Pub.L. 86-632, 74 Stat. 467. See 38 U.S.C. § 2024 (c). In addition, a new section, now codified at 38 U.S.C. § 2024(d), was enacted in 1960 to deal with problems faced by employees who had military training obligations lasting less than three months. This section provides that employees must be granted a leave of absence for training and, upon their return, be restored to their position "with such seniority, status, pay, and vacation" as they would have had if they had not been absent for training.Section 2024(d) closely paralleled 3 U.S.C. § 2021(a), the latter section ensuring the reinstatement of regular veterans returning from active duty. [Footnote 9] But § 2024(d) did not Page 452 U. S. 556 provide reservists with protection against discharges, demotions, or other discriminatory conduct once reinstated. Section 2021(b)(2), on the other hand, provided regular veterans returning from active duty one year's "protection . . . against certain types of discharges or demotions that might rob the veteran's reemployment of its substance." Oakley v. Lousville Nashville R. Co., 338 U. S. 278, 338 U. S. 285. The legislative history of § 2021(b)(3) indicates that it was designed to provide similar protection to employee reservists. [Footnote 10] Page 452 U. S. 557BSection 2021(b)(3) provides in pertinent part:"Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces."The Senate Report on the bill that became § 2021(b)(3), stated that the purpose of the enactment was"to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership. . . ."S.Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (1968). The Report explained that"[e]mployment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training Page 452 U. S. 558 and others have been discharged because of these obligations. . . . [T]he bill is intended to protect members of the Reserve components of the Armed Forces from such practices."Id. at 2. The protection was to be accomplished by entitling reservists "to the same treatment afforded their coworkers not having such military obligations. . . ." Ibid.The House Report announced the same motivation. The bill was described as providing "job protection for employees with obligations as members of a reserve component." H.R.Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968). The House Report elaborated as follows:"Section (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation.""It assures that these reservists will be entitled to the same treatment afforded their coworkers without such military obligation.""The law does not now protect these reservists against discharge without cause, as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection."Ibid. (emphasis added).The legislation was originally proposed by the Department of Labor. Accordingly, the testimony of Hugh W. Bradley, Director of the Office of Veterans' Reemployment Rights of the Labor Department, who was the chief administration spokesman for the provision, is instructive. He described the relevant portions of the legislation to the House Committee on Armed Services:"The first provision of the bill deals with a problem that has been increasingly difficult in the past few years. It is designed to enable reservists and guardsmen who leave Page 452 U. S. 559 their jobs to perform training in the Armed Forces to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not have military training obligations. The law does not now protect them against discharge without cause, as it does inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months' protection."1966 House Hearings, at 5312 (emphasis added). See also 1968 House Hearings at 7471.Testimony by Rear Admiral Burton H. Shupper, U.S.N., appearing on behalf of the Department of Defense, also reflected the purposes behind the enactment:"The other aspect of H.R. 11509 is the provision that employees shall not be denied retention in employment or advantages of employment because of any obligation as a member of a Reserve component of the Armed Forces. After the Berlin and Cuba call-ups, we received information from our Reserve community that a significant number of reservists were receiving indications that opportunities for advancement and retention in civilian employment would favor those who appear to offer their employers more continuity of services, namely those in the Standby Reserve or those with no Reserve status. In fairness, we must emphasize that this reaction on the part of employers appears to be the exception, not the rule, and, we believe, is generally not based upon unpatriotic motives, but rather on the competitive spirit of business."1966 House Hearings at 5315.The legislative history thus indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee reservist against discriminations like discharge and demotion motivated solely by reserve status. Congress wished to provide protection to reservists comparable Page 452 U. S. 560 to that already protecting the regular veteran from "discharge without cause" -- to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with § 2024(d). [Footnote 11] And the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to deny them the same treatment afforded their coworkers without military obligations. The petitioner's contention that his employer was obliged to provide work schedule preferences not available to other employees must be considered against this legislative background.CThe petitioner's argument is that the respondent corporation was obligated to make special efforts to schedule his work hours so he would avoid any lost time by reason of his reserve obligations. He does not allege that the respondent singled him out unfairly, or in any other way discriminated Page 452 U. S. 561 against him vis-a-vis other employees in the scheduling of work. Indeed, the petitioner's argument would require work assignment preferences not available to any nonreservist employee at the respondent's refinery.The problem with the petitioner's position is that there is nothing in § 2021(b)(3) or its legislative history to indicate that Congress ever even considered imposing an obligation on employers to provide a special work scheduling preference. Indeed, the legislative history, set out above, strongly suggests that Congress did not intend employers to provide special benefits to employee reservists not generally made available to other employees. [Footnote 12] Congress, and the administration spokesman for the legislation, stated explicitly that reservists were to be entitled "to the same treatment afforded their coworkers not having such military obligations. . . ." S.Rep. No. 1477, 90th Cong., 2d Sess., 2 (1968); see also H.R.Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966); 1968 House Hearings at 7471 (testimony of Hugh W. Bradley).The strongest language culled by the petitioner from the legislative history to support his argument is a single passage in the 1966 House Report on H.R. 11509:"If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic wellbeing is disrupted to the minimum extent possible."H.R.Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966). [Footnote 13] But this generalized statement appears Page 452 U. S. 562 only in the 1966 House Report; it is not contained in either the House or the Senate Report that accompanied the bill as finally enacted in the 90th Congress. Compare ibid. with H.R.Rep. No. 1303, 90th Cong., 2d Sess. 3, 8 (1968), and S.Rep. No. 1477, 90th Cong.2d Sess., 3 (1968). Moreover, language in the same 1966 House Report specifically indicated that only a nondiscrimination measure was intended:"It should be noted that the only substantive changes in existing law relate to . . . the prohibition against employer discrimination against reservists who participate in the Reserve or National Guard programs."H.R.Rep. No. 1303, 89th Cong., 2d Sess., 4 (1966).It appears that the origin of the passage the petitioner relies on is a statement by Hugh W. Bradley before the House Committee in 1966. See 1966 House Hearings, at 5313. Yet this passage disappeared from Bradley's presentation to both the House and Senate Committees in the subsequent Congress. See 1968 House Hearings at 7471, 7472; 1968 Senate Hearings at 2, 3. And in all three of his congressional appearances, Bradley made it abundantly clear that the purpose of the legislation was to protect employee reservists from discharge, denial of promotional opportunities, or other comparable adverse treatment solely by reason of their military obligations; there was never any suggestion of employer responsibility to provide preferential treatment. In any case, the language relied on by the petitioner hardly supports a finding that Congress intended § 2021(b)(3) to convert a generalized moral obligation into a specific legal duty.DAside from a lack of support in legislative history, the petitioner's argument suffers other flaws. While the present case Page 452 U. S. 563 involves absences for weekend duty, the statutory language is not so limited; it refers to "any obligation as a member of a Reserve component. . . ." Section 2021(b)(3) has been applied, for example, to 2-week summer camps, Carney v. Cummins Engine Co., 602 F.2d 763 (CA7); 6-week training sessions, Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1025 (CA1); and 2-month training sessions, Peel v. Florida Dept. of Transportation, 443 F. Supp. 451 (ND Fla.), aff'd, 600 F.2d 1070 (CA5). Accordingly, there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. And certainly there is nothing in the legislative history that would indicate Congress intended that reservists were to be entitled to all "incidents and advantages of employment" accorded during their absence to working employees, including regular time and overtime pay. [Footnote 14]The petitioner concedes that it might be impossible, or at least unduly burdensome, to accommodate a reservist's absences for periods as long as the mandatory 2-week summer training session. Perhaps for this reason, he attempts to limit the obvious implications of his theory by arguing that Page 452 U. S. 564 "the statute only requires an employer to take reasonable steps to accommodate the reservists." But, as is true of the petitioner's more general affirmative obligation theory, there is nothing in the statute or its history to support such a notion.Indeed, a "reasonable accommodation" to employee reservists because of missed worktime has already been made by Congress in § 2024(d). There, Congress decided what allowance employers should make to reservists whose duties force them to miss time at work: provide them a leave of absence. If Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee reservists have the opportunity to work the same number of hours or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly. [Footnote 15] By contrast, there is no evidence that the Congress that enacted § 2021(b)(3) showed any concern with the problem of missed work hours, let alone imposed any duty to "take reasonable steps to accommodate the reservists" in this or any other respect.The petitioner makes no suggestion why his theory of "reasonable accommodation" should apply only to "incidents or advantages of employment," and not to the other provisions of § 2021(b)(3): retention and promotion. Presumably, if it applies to one provision of the section, it should apply to them all. But if an employer could, for example, defend a Page 452 U. S. 565 denial of promotion to an employee reservist because the promotion could not be "reasonably accommodated," the protection afforded by § 2021(b)(3) would clearly be reduced, if not altogether eliminated.Finally, the petitioner suggests that § 2021(b)(3) must have the meaning he attributes to it, because the section would otherwise be of little significance. But the nondiscrimination requirements of the section impose substantial obligations upon employers. The frequent absences from work of an employee reservist may affect productivity and cause considerable inconvenience to an employer who must find alternative means to get necessary work done. Yet Congress has provided in § 2021(b)(3) that employers may not rid themselves of such inconveniences and productivity losses by discharging or otherwise disadvantaging employee reservists solely because of their military obligations.IIIThis Court does not sit to draw the most appropriate balance between benefits to employee reservists and costs to employers. That is the responsibility of Congress. If Congress desires to amend § 2021(b)(3) to require special work-hour scheduling for military reservists where it is reasonably possible, it is free to do so. But we must deal with the law as it is.The respondent did not deny the petitioner anything that he would have received had he not been a reservist. He was scheduled for 40 hours work a week, as all other employees in the refinery were. [Footnote 16] He was assigned the same burden of weekend and shift work as were his fellow employees. And he was allowed to exchange shifts in the manner Page 452 U. S. 566 accepted by his union and the respondent, just as all other employees were. [Footnote 17] Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtMonroe v. Standard Oil Co., 452 U.S. 549 (1981)Monroe v. Standard Oil Co.No. 80-298Argued March 4, 1981Decided June 17, 1981452 U.S. 549SyllabusThe Vietnam Era Veterans' Readjustment Assistance Act of 1974 provides in 38 U.S.C. § 2021(b)(3) that any employee of a private employer"shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a reserve component of the Armed Forces."Petitioner was an employee in respondent's refinery, which operated 24 hours a day, every day of the year, and whose employees worked five 8-hour days weekly but in a different 5-day sequence each week. As a military reservist, petitioner had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, petitioner was required to attend training on days when he was scheduled to work at the refinery, and, in most instances, he was unable to exchange shifts with other employees, as he was permitted to do. Respondent provided him with leaves of absence to attend training, as required by 38 U.S.C. § 2024(d), but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside the normal schedule. Petitioner brought an action against respondent in Federal District Court, alleging, inter alia, that respondent had violated § 2021(b)(3). The District Court granted summary judgment for petitioner on the ground that respondent, by not scheduling petitioner for a full 40-hour week on those occasions when he was unable to exchange shifts, had denied him "an incident or advantage of employment" within the meaning of § 2021(b)(3), and awarded him an amount for wages lost on those "work dates when an accommodation should have been made." The Court of Appeals reversed, holding that respondent had taken no discriminatory action proscribed by § 2021(b)(3).Held: Section 2021(b)(3) does not require an employer to make work scheduling accommodations for employee reservists not made for other employees. Pp. 452 U. S. 554-566.(a) The legislative history indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee reservist from discrimination like discharge and demotion motivated Page 452 U. S. 550 solely by reserve status. There is nothing in § 2021(b)(3) or its legislative history to indicate that Congress even considered imposing an obligation on employers to provide a special work scheduling preference, but rather the history suggests that Congress did not intend employers to provide special benefits to employee reservists not generally made available to other employees. Pp. 452 U. S. 554-562.(b) While this case involves absences for weekend duty, § 2021(b)(3) refers to "any obligation as a member of a Reserve component." Accordingly, there is no principled way of distinguishing between an employer's obligation to make scheduling accommodations for weekends, as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. There is nothing in the legislative history to indicate that Congress intended reservists to be entitled to all "incidents and advantages of employment" accorded during their absence to working employees, including regular time and overtime pay. Pp. 452 U. S. 562-563.(c) There is nothing in the statute or its history to support petitioner's contention that § 2021(b)(3) only requires an employer under the circumstances of this case to make a "reasonable accommodation" to employee reservists. Such a "reasonable accommodation" has already been made in § 204(d) by requiring employers to grant a leave of absence to reservists whose duties force them to miss time at work. To say that § 2021(b)(3) would be of little significance unless a "reasonable accommodation" requirement is imposed ignores the fact that the nondiscrimination requirements of the section already impose substantial obligations on employers by precluding them from ridding themselves of the inconveniences and productivity losses resulting from employee reservists' absence by discharging or otherwise disadvantaging such employees solely because of their military obligations. Pp. 452 U. S. 563-565.613 F.2d 641, affirmed.STEWART, J., delivered the opinion of the Court, in which WHITE, MARSHALL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and POWELL, JJ., joined, post, p. 452 U. S. 566. Page 452 U. S. 551

1973_73-786

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We are asked in this case to decide whether Douglas v. California, 372 U. S. 353 (1963), which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications Page 417 U. S. 603 for review in this Court. The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. [Footnote 1]IThe case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both cases, respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and, because of his indigency, was represented at trial by court-appointed counsel. He was convicted, and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed. [Footnote 2] At this point, the procedural histories of the two cases diverge.Following affirmance of his Mecklenburg County conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklenburg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right to counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February, 1971. Relief was denied at that time, and respondent's appeal to the Court Page 417 U. S. 604 of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied. Respondent appealed that denial to the Court of Appeals for the Fourth Circuit.Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel, but rather was represented by the public defender who had been appointed for the trial and respondent's first appeal. The North Carolina Supreme Court denied certiorari. [Footnote 3] Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts. After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina. That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit.The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated:"As long as the state provides such procedures and allows other convicted felons to seek access to the Page 417 U. S. 605 higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court. [Footnote 4]"This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals,"[t]he same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals. [Footnote 5]"We granted certiorari, 414 U.S. 1128, to consider the Court of Appeals' decision in light of Douglas v. California, and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits. [Footnote 6] For the reasons hereafter stated we reverse the Court of Appeals.IIThis Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In Griffin v. Illinois, 351 U. S. 12 (1956), the first of the pertinent cases, the Court had before it an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial. [Footnote 7] No exception was made for the indigent Page 417 U. S. 606 defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial err. Mr. Justice Frankfurter, who cast the deciding vote, said in his concurring opinion:". . . Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court."Id. at 22. The Court in Griffin held that this discrimination violated the Fourteenth Amendment.Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. McKane v. Durston, 153 U. S. 684 (1894). The cases encompassed a variety of circumstances, but all had a common theme. For example, Lane v. Brown, 372 U. S. 477 (1963), involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U. S. 487 (1963), the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court's conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U. S. 708 (1961), Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in Burns v. Ohio, 360 U. S. 252 (1959), the State of Ohio required a $20 filing fee in Page 417 U. S. 607 order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction. Each of these state-imposed financial barriers to the adjudication of a criminal defendant's appeal was held to violate the Fourteenth Amendment.The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. In Douglas v. California, 372 U. S. 353 (1963), however, a case decided the same day as Lane, supra, and Draper, supra, the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent's access to the appellate system was adequate. The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. It is this decision we are asked to extend today.Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that "no good whatever could be Page 417 U. S. 608 served by appointment of counsel.'" 372 U.S. at 372 U. S. 355. It therefore denied petitioners' request for the appointment of counsel.This Court held unconstitutional California's requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. The Court noted that, under this system, an indigent's case was initially reviewed on the merits., without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary "ex parte examination of the record," id. at 372 U. S. 356, but had their arguments presented to the court in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say:"We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction . . . or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an 'invidious discrimination.' Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 489; Griffin v. Illinois, supra, p. 351 U. S. 18. Absolute equality is not required; lines can be, and are, drawn, and we often sustain them."Id. at 372 U. S. 356-357.The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support Page 417 U. S. 609 being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment. [Footnote 8] Neither Clause, by itself, provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. " Due process" emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. "Equal protection," on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. We will address these issues separately in the succeeding sections.IIIRecognition of the due process rationale in Douglas is found both in the Court's opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that, "[w]hen an indigent is forced to run this gauntlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure." 372 U.S. at 372 U. S. 357. Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended Page 417 U. S. 610 consideration, remarking:"The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause."Id. at 372 U. S. 363.We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U. S. 335 (1963). But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances,"reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."Id. at 372 U. S. 344.By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor, but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being "haled into court" Page 417 U. S. 611 by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U. S. 684 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.IVLanguage invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas, for example, stated:"[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor."372 U.S. at 372 U. S. 357 (Emphasis in original.) The Court in Burns v. Ohio stated the issue in the following terms:"[O]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty."360 U.S. at 360 U. S. 257.Despite the tendency of all rights "to declare themselves Page 417 U. S. 612 absolute to their logical extreme," [Footnote 9] there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment "does not require absolute equality or precisely equal advantages," San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 24 (1973), nor does it require the State to "equalize economic conditions." Griffin v. Illinois, 351 U.S. at 351 U. S. 23 (Frankfurter, J., concurring). It does require that the state appellate system be "free of unreasoned distinctions," Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 310 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U. S. 487 (1963). The State cannot adopt procedures which leave an indigent defendant "entirely cut off from any appeal at all," by virtue of his indigency, Lane v. Brown, 372 U.S. at 372 U. S. 481, or extend to such indigent defendants merely a "meaningless ritual" while others in better economic circumstances have a "meaningful appeal." Douglas v. California, supra, at 372 U. S. 358. The question is not one of absolutes, but one of degrees. In this case, we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.A. The North Carolina appellate system, as are the appellate systems of almost half the States [Footnote 10] is multi-tiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals was Page 417 U. S. 613 created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the caseload previously burdening the Supreme Court. In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals. N.C.Gen.Stat. § 7A-27 (1969 and Supp. 1973). A second appeal of right lies to the Supreme Court in any criminal case"(1) [w]hich directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) [i]n which there is a dissent. . . ."N.C.Gen.Stat. § 7A-30 (1969). All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis.The statute governing discretionary appeals to the Supreme Court is N.C.Gen.Stat. § 7A-31 (1969). This statute provides, in relevant part, that,"[i]n any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals."The statute further provides that,"[i]f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals."The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court, but is regulated by statutory standards. Subsection (c) of this provision states:"In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the Page 417 U. S. 614 Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court."Appointment of counsel for indigents in North Carolina is governed by N.C.Gen.Stat. § 7A-450 et seq. (1969 and Supp. 1973). These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here, [Footnote 11] have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Thus, North Carolina has followed the mandate of Douglas v. California, supra, and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here.B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had "once been presented by a lawyer and passed upon by an appellate court." Douglas v. California, 372 U.S. Page 417 U. S. 615 at 372 U. S. 356. We do not believe that it can be said, therefore, that a defendant in respondent's circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage, he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been "a correct adjudication of guilt" in every individual case, see Griffin v. Illinois, 351 U.S. at 351 U. S. 18, but rather whether "the subject matter of the appeal has significant public interest," whether "the cause involves legal principles of major significance to the jurisprudence of the State," or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, see Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585, 194 S.E.2d 133 (1973), since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant's claims of error are organized and presented in a lawyer-like fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review. Page 417 U. S. 616This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him. An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. We think respondent was given that opportunity under the existing North Carolina system.VMuch of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant's only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This Page 417 U. S. 617 Court's review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review.There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus, the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is, by its terms, inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed.The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e.g., Drumm v. California, 373 U.S. 947 (1963); Mooney v. New York, 373 U.S. 947 (1963); Oppenheimer v. California, 374 U.S. 819 (1963). In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to Page 417 U. S. 618 impose such a requirement on the States, and we decline to do so.VIWe do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court. [Footnote 12] Our reading Page 417 U. S. 619 of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no right secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review.The judgment of the Court of Appeals' holding to the contrary isReversed

U.S. Supreme CourtRoss v. Moffitt, 417 U.S. 600 (1974)Ross v. MoffittNo. 73-76Argued April 22, 1974Decided June 17, 1974417 U.S. 600SyllabusRespondent, an indigent, while represented by court-appointed counsel, was convicted of forgery in state court in two separate cases, and his convictions were affirmed on his appeals of right by the North Carolina Court of Appeals. In one case, he was denied appointment of counsel for discretionary review by the North Carolina Supreme Court, and in the other case, after that court had denied certiorari, was denied appointment of counsel to prepare a petition for certiorari to this Court. Subsequently, Federal District Courts denied habeas corpus relief, but the United States Court of Appeals reversed, holding that respondent was entitled to appointment of counsel both on his petition for review by the State Supreme Court and on his petition for certiorari in this Court.Held:1. The Due Process Clause of the Fourteenth Amendment does not require North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. Pp. 417 U. S. 609-611.(a) As contrasted with the trial stage of a criminal proceeding, a defendant appealing a conviction needs an attorney, not as a shield to protect him against being "haled into court" by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt, the difference being significant since, while a State may not dispense with the trial stage without the defendant's consent, it need not provide any appeal at all. Pp. 417 U. S. 610-611.(b) The fact that an appeal has been provided does not automatically mean that the State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way, but unfairness results only if the State singles out indigents and denies them meaningful access to the appellate system because of their poverty. P. 417 U. S. 611.2. Nor does the Equal Protection Clause of the Fourteenth Amendment require North Carolina to provide free counsel for indigent defendants seeking discretionary appeals to the State Supreme Court. Pp. 417 U. S. 611-616. Page 417 U. S. 601(a) A defendant in respondent's circumstances is not denied meaningful access to the State Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court, since, at that stage, under North Carolina's multi-tiered appellate system, he will have, at the very least, a transcript or other record of the trial proceedings, a brief in the Court of Appeals setting forth his claims of error, and frequently an opinion by that court disposing of his case, materials which, when supplemented by any pro se submission that might be made, would provide the Supreme Court with an adequate basis for its decision to grant or deny review under its standards of whether the case has "significant public interest," involves "legal principles of major significance," or likely conflicts with a previous Supreme Court decision. Pp. 417 U. S. 614-615.(b) Both an indigent defendant's opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of the Supreme Court's discretionary review make the relative handicap that such a defendant may have in comparison to a wealthy defendant, who has counsel at every stage of the proceeding, far less than the handicap borne by an indigent defendant denied counsel on his initial appeal of right, Douglas v. California, 372 U. S. 353. P. 417 U. S. 616.(c) That a particular service might benefit an indigent defendant does not mean that the service is constitutionally required, the duty of the State not being to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant, as was done here, an adequate opportunity to present his claims fairly in the context of the State's appellate process. P. 417 U. S. 616.3. Similarly, the Fourteenth Amendment does not require North Carolina to provide counsel for a convicted indigent defendant seeking to file a petition for certiorari in this Court, under circumstances where the State will have provided counsel for his only appeal as of right, and the brief prepared by such counsel together with one and perhaps two state appellate opinions will be available to this Court in order to decide whether to grant certiorari. Pp. 417 U. S. 616-618.(a) Since the right to seek discretionary review in this Court is conferred by federal statutes and not by any State, the argument that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right is, by Page 417 U. S. 602 its terms, inapplicable. Griffin v. Illinois, 351 U. S. 12, and Douglas v. California, supra, distinguished. P. 417 U. S. 617.(b) The suggestion that a State is responsible for providing counsel to an indigent defendant petitioning this Court simply because it initiated the prosecution leading to the judgment sought to be reviewed is unsupported by either reason or authority. Pp. 417 U. S. 617-618.483 F.2d 650, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 417 U. S. 619.

1980_79-1344

JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL joined.The question presented in this case is whether California's "statutory rape" law, § 261.5 of the Cal.Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for the act of sexual intercourse.In July, 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17 1/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that, at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16 1/2-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, Page 450 U. S. 467 who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner's initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner's request for relief, and petitioner sought review in the Supreme Court of California.The Supreme Court held that "section 261.5 discriminates on the basis of sex, because only females may be victims and only males may violate the section." 25 Cal. 3d 608, 611, 601 P.2d 572, 574. The court then subjected the classification to "strict scrutiny," stating that it must be justified by a compelling state interest. It found that the classification was "supported not by mere social convention, but by the immutable physiological fact that it is the female exclusively who can become pregnant." Ibid. Canvassing "the tragic human costs of illegitimate teenage pregnancies," including the large number of teenage abortions, the increased medical risk associated with teenage pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can "physiologically cause the result which the law properly seeks to avoid," the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court. [Footnote 1] Page 450 U. S. 468As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U. S. 268 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are "inherently suspect," and thus we do not apply so-called "strict scrutiny" to those classifications. See Stanton v. Stanton, 421 U. S. 7 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat "sharper focus" when gender-based classifications are challenged. See Craig v. Boren, 429 U. S. 190, 429 U. S. 210 n.* (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U. S. 71 (1971), for example, the Court stated that a gender-based classification will be upheld if it Page 450 U. S. 469 bears a "fair and substantial relationship" to legitimate state ends, while in Craig v. Boren, supra at 429 U. S. 197, the Court restated the test to require the classification to bear a "substantial relationship" to "important governmental objectives."Underlying these decisions is the principle that a legislature may not"make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class."Parham v. Hughes, 441 U. S. 347, 441 U. S. 354 (1979) (plurality opinion of STEWART, J.). But because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same,'" Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309 (1966), quoting Tigner v. Texas, 310 U. S. 141, 310 U. S. 147 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). As the Court has stated, a legislature may "provide for the special problems of women." Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 653 (1975).Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct. [Footnote 2] Precisely why the legislature desired that result is, of course, somewhat less clear. This Court has long recognized that "[i]nquiries into congressional motives or purposes are a hazardous matter," United States v. O'Brien, 391 U. S. 367, 391 U. S. 383-384 (1968); Palmer v. Thompson, 403 U. S. 217, 403 U. S. 224 (1971), and the Page 450 U. S. 470 search for the "actual" or "primary" purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 429 U. S. 265 (1977); McGinnis v. Royster, 410 U. S. 263, 410 U. S. 276-277 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex.The justification for the statute offered by the State and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U. S. 369, 387 U. S. 373-374 (1967). And although our cases establish that the State's asserted reason for the enactment of a statute may be rejected, if it "could not have been a goal of the legislation," Weinberger v. Wiesenfeld, supra at 420 U. S. 648, n. 16, this is not such a case.We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, [Footnote 3] have significant social, medical, and economic consequences for both the mother and her child, and the State. [Footnote 4] Page 450 U. S. 471 Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. [Footnote 5] And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State. [Footnote 6]We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here Page 450 U. S. 472 protects women from sexual intercourse at an age when those consequences are particularly severe. [Footnote 7]The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. [Footnote 8] We hold that such a statute is Page 450 U. S. 473 sufficiently related to the State's objectives to pass constitutional muster.Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes.We are unable to accept petitioner's contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U.S. at 3 416 U. S. 56, n. 10.In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report Page 450 U. S. 474 violations of the statute if she herself would be subject to criminal prosecution. [Footnote 9] In an area already fraught with prosecutorial dificulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement. [Footnote 10] Page 450 U. S. 475We similarly reject petitioner's argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls.There remains only petitioner's contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that, as between two persons under 18, the male is the culpable aggressor. We find petitioner's contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is, instead, an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant, since young men are as capable as older men of inflicting the harm sought to be prevented.In upholding the California statute, we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females. Page 450 U. S. 476 To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made "solely for . . . administrative convenience," as in Frontiero v. Richardson, 411 U. S. 677, 411 U. S. 690 (1973) (emphasis omitted), or rests on "the baggage of sexual stereotypes" as in Orr v. Orr, 440 U.S. at 440 U. S. 283. As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male.Accordingly the judgment of the California Supreme Court isAffirmed

U.S. Supreme CourtMichael M. v. Superior Ct., 450 U.S. 464 (1981)Michael M. v. Superior CourtNo. 79-1344Argued November 4, 1980Decided March 23, 1981450 U.S. 464SyllabusPetitioner, then a 17 1/2-year-old male, was charged with violating California's "statutory rape" law, which defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that the statute unlawfully discriminated on the basis of gender since men alone were criminally liable thereunder. The trial court and the California Court of Appeal denied relief, and on review the California Supreme Court upheld the statute.Held: The judgment is affirmed. Pp. 450 U. S. 468-476; 450 U. S. 481-487.25 Cal. 3d 608, 601 P.2d 572, affirmed.JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE STEWART, and JUSTICE POWELL, concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 450 U. S. 468-476.(a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Reed v. Reed, 404 U. S. 71. Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309, a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Pp. 450 U. S. 468-469.(b) One of the purposes of the California statute in which the State has a strong interest is the prevention of illegitimate teenage pregnancies. The statute protects women from sexual intercourse and pregnancy at an age when the physical, emotional, and psychological consequences are particularly severe. Because virtually all of the significant harmful and identifiable consequences of teenage pregnancy fall on the female, a legislature acts well within its authority when it Page 450 U. S. 465 elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. Pp. 450 U. S. 470-473.(c) There is no merit in petitioner's contention that the statute is impermissibly underinclusive, and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. The relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. In any event, a gender-neutral statute would frustrate the State's interest in effective enforcement, since a female would be less likely to report violations of the statute if she herself would be subject to prosecution. The Equal Protection Clause does not require a legislature to enact a statute so broad that it may well be incapable of enforcement. Pp. 450 U. S. 473-474.(d) Nor is the statute impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, incapable of becoming pregnant. Aside from the fact that the statute could be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, the Constitution does not require the California Legislature to limit the scope of the statute to older teenagers and exclude young girls. P. 450 U. S. 475.(e) And the statute is not unconstitutional as applied to petitioner who, like the girl involved, was under 18 at the time of sexual intercourse, on the asserted ground that the statute presumes in such circumstances that the male is the culpable aggressor. The statute does not rest on such an assumption, but instead is an attempt to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant, since young men are as capable as older men of inflicting the harm sought to be prevented. P. 450 U. S. 475.BLACKMUN, J., concluded that the California statutory rape law is a sufficiently reasoned and constitutional effort to control at its inception the problem of teenage pregnancies, and that the California Supreme Court's judgment should be affirmed on the basis of the applicable test for gender-based classifications as set forth in Reed v. Reed, 404 U. S. 71, 404 U. S. 76, and Craig v. Boren, 429 U. S. 190, 429 U. S. 197. Pp. 450 U. S. 481-487.REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J. and STEWART and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 450 U. S. 476. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 450 U. S. 481. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSALL, JJ., joined, post, p. 450 U. S. 488. STEVENS, J., filed a dissenting opinion, post, p. 450 U. S. 496. Page 450 U. S. 466

1959_176

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the Page 362 U. S. 540 respondent. On April 1, 1957, the vessel returned to her home port from a 10-day voyage to the North Atlantic fishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew members in unloading the spawn, [Footnote 1] the petitioner changed his clothes and came on deck to go ashore. He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship's rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder.To recover for his injuries, he filed this action for damages in a complaint containing three counts: the first under the Jones Act, alleging negligence, the second alleging unseaworthiness, and the third for maintenance and cure. At the trial, there was evidence to show that the ship's rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations.The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent to have learned about it and to have removed it. [Footnote 2] Counsel for the petitioner requested that Page 362 U. S. 541 the trial judge distinguish between negligence and unseaworthiness in this respect, and specifically requested him to instruct the jury that notice was not a necessary element in proving liability based upon unseaworthiness of the vessel. This request was denied. [Footnote 3] The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts. Page 362 U. S. 542An appeal was taken upon the sole ground that the district judge had been in error in instructing the jury that constructive notice was necessary to support liability for unseaworthiness. The Court of Appeals affirmed, holding that, at least with respect to "an unseaworthy condition which arises only during the progress of the voyage," the shipowner's obligation "is merely to see that reasonable care is used under the circumstances . . . incident to the correction of the newly arisen defect." 265 F.2d 426, 432. Certiorari was granted, 361 U.S. 808, to consider a question of maritime law upon which the Courts of Appeals have expressed differing views. Compare Cookingham v. United States, 184 F.2d 213 (C.A. 3d Cir.), with Johnson Line v. Maloney, 243 F.2d 293 (C.A. 9th Cir.), and Poignant v. United States, 225 F.2d 595 (C.A. 2d Cir.).In its present posture, this case thus presents the single issue whether, with respect to so-called "transitory" unseaworthiness, the shipowner's liability is limited by concepts of common law negligence. There are here no problems, such as have recently engaged the Court's attention, with respect to the petitioner's status as a "seaman." Cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; United Pilots Assn. v. Halecki, 358 U. S. 613, or as to the status of the vessel itself. Cf. West v. United States, 361 U. S. 118. The Racer was in active maritime operation, and the petitioner was a member of her crew. [Footnote 4] Page 362 U. S. 543The origin of a seaman's right to recover for injuries caused by an unseaworthy ship is far from clear. The earliest codifications of the law of the sea provided only the equivalent of maintenance and cure -- medical treatment and wages to a mariner wounded or falling ill in the service of the ship. Markedly similar provisions granting relief of this nature are to be found in the Laws of Oleron, promulgated about 1150 A.D. by Eleanor, Duchess of Guienne; in the Laws of Wisbuy, published in the following century; in the Laws of the Hanse Towns, which appeared in 1597; and in the Marine Ordinances of Louis XIV, published in 1681. [Footnote 5]For many years, American courts regarded these ancient codes as establishing the limits of a shipowner's liability to a seaman injured in the service of his vessel. Harden v. Gordon, Fed.Cas. No. 6,047, 2 Mason 541; The Brig George, Fed.Cas. No. 5,329, 1 Sumn. 151; Page 362 U. S. 544 Reed v. Canfield, Fed.Cas. No. 11,641, 1 Sumn. 195. [Footnote 6] During this early period, the maritime law was concerned with the concept of unseaworthiness only with reference to two situations quite unrelated to the right of a crew member to recover for personal injuries. The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. They were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which otherwise would result in a forfeiture of their right to wages. See Dixon v. The Cyrus, 7 Fed.Cas. 755, No. 3,930; Rice v. The Polly & Kitty, 20 Fed.Cas. 666, No. 11,754; The Moslem, 17 Fed.Cas. 894, No. 9,875. The other route through which the concept of unseaworthiness found its way into the maritime law was via the rules covering marine insurance and the carriage of goods by sea. The Caledonia, 157 U. S. 124; The Silvia, 171 U. S. 462; The Southwark, 191 U. S. 1; I Parsons on Marine Insurance (1868) 367-400.Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period, it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner's failure to exercise due diligence. The decisions of that era for the most part treated maritime injury cases on the same footing as cases involving the duty of a shoreside employer to exercise ordinary care to provide his employees with a reasonably safe place to work. Brown v. The D.S. Cage, 4 Fed.Cas. 367, No. 2,002; Page 362 U. S. 545 Halverson v. Nisen, 11 Fed.Cas. 310, No. 5,970; The Noddleburn 28 F. 855; The Neptuno, 30 F. 925; The Lizzie Frank, 31 F. 477; The Flowergate, 31 F. 762; The A. Heaton, 43 F. 592; The Julia Fowler, 49 F. 277; The Concord, 58 F. 913; The France, 59 F. 479; The Robert C. McQuillen, 91 F. 685.Although some courts held shipowners liable for injuries caused by "active" negligence, The Edith Godden, 23 F. 43; The Frank & Willie, 45 F. 494, it was held in The City of Alexandria, 17 F. 390, in a thorough opinion by Judge Addison Brown, that the owner was not liable for negligence which did not render the ship or her appliances unseaworthy. A closely related limitation upon the owner's liability was that imposed by the fellow servant doctrine. The Sachem, 42 F. 66. [Footnote 7]This was the historical background behind Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U. S. 158, 189 U. S. 175:"That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship."In support of this proposition, the Court's opinion noted that"[i]t will be observed in these cases that a departure has been made from the Continental Codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants' shipping act of 1876 . . . , and, in this country, in a general consensus of opinion among the circuit and Page 362 U. S. 546 district courts, that an exception should be made from the general principle before obtaining in favor of seamen suffering injury through the unseaworthiness of the vessel. We are not disposed to disturb so wholesome a doctrine by any contrary decision of our own."189 U.S. at 189 U. S. 175.It is arguable that the import of the above-quoted second proposition in The Osceola was not to broaden the shipowner's liability, but, rather to limit liability for negligence to those situations where his negligence resulted in the vessel's unseaworthiness. Support for such a view is to be found not only in the historic context in which The Osceola was decided, but in the discussion in the balance of the opinion, in the decision itself (in favor of the shipowner), and in the equation which the Court drew with the law of England, where the Merchant Shipping Act of 1876 imposed upon the owner only the duty to use "all reasonable means" to "insure the seaworthiness of the ship." This limited view of The Osceola's pronouncement as to liability for unseaworthiness may be the basis for subsequent decisions of federal courts exonerating shipowners from responsibility for the negligence of their agents because that negligence had not rendered the vessel unseaworthy. The Henry B. Fiske, 141 F. 188; Tropical Fruit S.S. Co. v. Towle, 222 F. 867; John A. Roebling's Sons Co. v. Erickson, 261 F. 986. Such a reading of the Osceola opinion also finds arguable support in several subsequent decisions of this Court. Baltimore S.S. Co. v. Phillips, 274 U. S. 316; Plamals v. The Pinar Del Rio, 277 U. S. 151; Pacific S.S. Co. v. Peterson, 278 U. S. 130. [Footnote 8] In any event, with the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C. § 688, Congress effectively obliterated all distinctions between Page 362 U. S. 547 the kinds of negligence for which the shipowner is liable, as well as limitations imposed by the fellow servant doctrine, by extending to seamen the remedies made available to railroad workers under the Federal Employers' Liability Act. [Footnote 9]The first reference in this Court to the shipowner's obligation to furnish a seaworthy ship as explicitly unrelated to the standard of ordinary care in a personal injury case appears in Carlisle Packing Co. v. Sandanger, 259 U. S. 255. There, it was said,"we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . , and that, if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages."259 U.S. at 259 U. S. 259. This characterization of unseaworthiness as unrelated to negligence was probably not necessary to the decision in that case, where the respondent's injuries had clearly in fact been caused by failure to exercise ordinary care (putting gasoline in a can labeled "coal oil" and neglecting to provide the vessel with life preservers). Yet there is no reason to suppose that the Court's language was inadvertent. [Footnote 10]During the two decades that followed the Carlisle decision, there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question. Page 362 U. S. 548 See Benedict, The Law of American Admiralty (6th Ed., 1940), Vol. I, § 83; Robinson, Admiralty Law (1939), p. 303 et seq. Perhaps the clearest expression appeared in Judge Augustus Hand's opinion in The H. A. Scandrett, 87 F.2d 708:"In our opinion the libellant had a right of indemnity for injuries arising from an unseaworthy ship even though there was no means of anticipating trouble.""The ship is not freed from liability by mere due diligence to render her seaworthy as may be the case under the Harter Act (46 U.S.C. §§ 190-195), where loss results from faults in navigation, but, under the maritime law, there is an absolute obligation to provide a seaworthy vessel, and, in default thereof, liability follows for any injuries caused by breach of the obligation."87 F.2d at 711.In 1944, this Court decided Mahnich v. Southern S.S. Co., 321 U. S. 96. While it is possible to take a narrow view of the precise holding in that case, [Footnote 11] the fact is that Mahnich stands as a landmark in the development of admiralty law. Chief Justice Stone's opinion in that case gave an unqualified stamp of solid authority to the view that The Osceola was correctly to be understood as holding that the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading of The Osceola, and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U.S. at 321 U. S. 105-113.In Seas Shipping Co. v. Sieracki, 328 U. S. 85, the Court effectively scotched any doubts that might have lingered Page 362 U. S. 549 after Mahnich as to the nature of the shipowner's duty to provide a seaworthy vessel. The character of the duty, said the Court, is "absolute.""It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. . . . It is a form of absolute duty owing to all within the range of its humanitarian policy."328 U.S. at 328 U. S. 94-95. The dissenting opinion agreed as to the nature of the shipowner's duty. "[D]ue diligence of the owner," it said, "does not relieve him from this obligation." 328 U.S. at 328 U. S. 104.From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner's duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v. United States Lines, 347 U.S. 984; Boudoin v. Lykes Bros. S.S. Co., 348 U. S. 336; Crumady v. The J. H. Fisser, 358 U. S. 423; United Pilots Assn. v. Halecki, 358 U. S. 613.There is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port, or that the duty is any less with respect to an unseaworthy condition which may be only temporary. Of particular relevance here is Alaska Steamship Co. v. Petterson, supra. In that case, the Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision is thus specific authority for the proposition that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability. Page 362 U. S. 550 That decision also effectively disposes of the suggestion that liability for a temporary unseaworthy condition is different from the liability that attaches when the condition is permanent. [Footnote 12]There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S.S. Co., 348 U. S. 336.The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness.Reversed

U.S. Supreme CourtMitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)Mitchell v. Trawler Racer, Inc.No. 176Argued January 21, 1960Decided May 16, 1960362 U.S. 539SyllabusIn an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship's rail of slime and fish gurry remaining there from recent unloading operations, the shipowner's actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman's case. Pp. 362 U. S. 539-550.(a) A shipowner's duty to furnish a seaworthy ship is absolute, and it is not limited by concepts of common law negligence. Pp. 362 U. S. 542-549.(b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 362 U. S. 549-550.265 F.2d 426 reversed.

1984_83-1748

JUSTICE BLACKMUN delivered the opinion of the Court.The Wisconsin courts have made the bad faith handling of an insurance claim a tort under state law. Those courts have gone further, and have applied this tort to the handling of a claim under a disability plan included in a collective bargaining agreement. The question before us is whether, in the latter case, the state tort claim is preempted by the national labor laws.IARespondent Roderick S. Lueck began working for petitioner Allis-Chalmers Corporation in February, 1975. He is a member of Local 248 of the United Automobile, Aerospace Page 471 U. S. 204 and Agricultural Implement Workers of America. Allis-Chalmers and Local 248 are parties to a collective bargaining agreement. The agreement incorporates by reference a separately negotiated group health and disability plan fully funded by Allis-Chalmers but administered by Aetna Life & Casualty Company. The plan provides that disability benefits are available for nonoccupational illness and injury to all employees, such as petitioner, who are represented by the union.The collective bargaining agreement also establishes a four-step grievance procedure for an employee's contract grievance. This procedure culminates in final and binding arbitration if the union chooses to pursue the grievance that far. App. 18-29. A separate letter of understanding that binds the parties creates a special three-part grievance procedure for disability grievances. Id. at 43-44. The letter establishes a Joint Plant Insurance Committee composed of two representatives designated by the union and two designated by the employer. Id. at 43. The Committee has the authority to resolve all disputes involving "any insurance-related issues that may arise from provisions of the [Collective-Bargaining] Agreement." Ibid. An employee having an insurance-related complaint is to address it first to the Supervisor of Employee Relations. If the complaint is rejected or otherwise remains unresolved, the employee then may bring the dispute before the Insurance Committee. If the Committee does not resolve the matter, the employee may bring it to arbitration in the manner established under the collective bargaining agreement. As indicated, that agreement permits the union or the employer to request that a grievance be submitted to final and binding arbitration before a neutral arbitrator agreed upon by the parties. [Footnote 1] Page 471 U. S. 205In July, 1981, respondent Lueck suffered a nonoccupational back injury while carrying a pig to a friend's house for a pig roast. He notified Allis-Chalmers of his injury, as required by the claims-processing procedure, and subsequently filed a disability claim with Aetna, also in accordance with the established procedure. After evaluating physicians' reports submitted by Lueck, Aetna approved the claim. Lueck began to receive disability benefits effective from July 20, 1981, the day he filed his claim with Aetna.According to Lueck, however, Allis-Chalmers periodically would order Aetna to cut off his payments, either without reason, or because he failed to appear for a doctor's appointment, or because he required hospitalization for unrelated reasons. After each termination, Lueck would question the action or supply additional information, and the benefits would be restored. In addition, according to Lueck, Allis-Chalmers repeatedly requested that he be reexamined by different doctors, so that Lueck believed that he was being harassed. All of Lueck's claims were eventually paid, although, allegedly, not until he began this litigation. [Footnote 2] Page 471 U. S. 206BLueck never attempted to grieve his dispute concerning the manner in which his disability claim was handled by Allis-Chalmers and Aetna. Instead, on January 18, 1982, he filed suit against both of them in the Circuit Court of Milwaukee County, Wis., alleging that they "intentionally, contemptuously, and repeatedly failed" to make disability payments under the negotiated disability plan, without a reasonable basis for withholding the payments. App. 4. This breached their duty "to act in good faith and deal fairly with [Lueck's] disability claims." Id. at 3. Lueck alleged that, as a result of these bad faith actions, he incurred debts, emotional distress, physical impairment, and pain and suffering. He sought both compensatory and punitive damages. Id. at 4.Ruling on cross-motions for summary judgment, the trial court ruled in favor of Allis-Chalmers and Aetna. The court held that Lueck stated a claim under § 301 of the Labor Management Relations Act of 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185(a), and that, in the alternative, if his claim "were deemed to arise under state law instead of Section 301," it was "preempted by federal labor law." App. to Pet. for Cert. 26-27. The Wisconsin Court of Appeals, in a decision "[n]ot recommended for publication in the official reports," id. at 25, affirmed the judgment in favor of Aetna on the ground that it owed no fiduciary duty to deal in good faith with Lueck's claim. The court agreed with the Circuit Court that federal law preempted the claim against Allis-Chalmers. [Footnote 3] Page 471 U. S. 207The Supreme Court of Wisconsin, with one justice dissenting, reversed. Lueck v. Aetna Life Ins. Co., 116 Wis.2d 559, 342 N.W.2d 699 (1984). The court held, first, that the suit did not arise under § 301 of the LMRA, and therefore was not subject to dismissal for failure to exhaust the arbitration procedures established in the collective bargaining agreement. The court reasoned that a § 301 suit arose out of a violation of a labor contract, and that the claim here was a tort claim of bad faith. Under Wisconsin law, the tort of bad faith is distinguishable from a bad faith breach-of-contract claim: though a breach of duty exists as a consequence of the relationship established by contract, it is independent of that contract. Therefore, it said, the violation of the labor contract was "irrelevant to the issue of whether the defendants exercised bad faith in the manner in which they handled Lueck's claim." Id. at 566, 342 N.W.2d at 703. The action, thus, was not a § 301 suit.The court went on to address the question whether the state law claims nevertheless were preempted by §§ 8(a)(5) and (d) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(5) and (d). Applying the standard for determining NLRA preemption as enunciated in San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 244-245 (1959), and Farmer v. Carpenters, 430 U. S. 290, 430 U. S. 296-297 (1977), the court determined that the claims were not preempted. It found that the administration of disability claim procedures under a collective bargaining agreement is a matter only of peripheral concern to federal labor law, since payment of a disability claim is not a central aspect of labor relations. On the other hand, the court observed, the bad faith insurance tort is of substantial significance to the State of Wisconsin, which has assumed a longstanding responsibility for assuring the prompt payment of disability claims. Permitting the state action to proceed would not have an adverse impact on the effective administration Page 471 U. S. 208 of national labor policy, since the courts will make no determination as to whether the labor agreement has been breached.Finally, the court found that Aetna could be liable to Lueck for bad faith administration of his disability claim, since it was an agent of Allis-Chalmers for the purpose of administering claims. It thus reversed the appellate court's judgment and remanded the case for a determination whether Aetna played any role in the processing of Lueck's disability claim. Aetna has not sought review of that part of the judgment. We granted certiorari, 469 U.S. 815 (1984), to determine whether § 301 of the Labor Management Relations Act preempts a state law tort action for bad faith delay in making disability benefit payments due under a collective bargaining agreement.IICongress' power to preempt state law is derived from the Supremacy Clause of Art. VI of the Federal Constitution. Gibbons v. Ogden, 9 Wheat. 1 (1824). Congressional power to legislate in the area of labor relations, of course, is long established. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937). Congress, however, has never exercised authority to occupy the entire field in the area of labor legislation. [Footnote 4] Thus, the question whether a certain state action is preempted by federal law is one of congressional intent. "The purpose of Congress is the ultimate touchstone.'" 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).Congress did not state explicitly whether and to what extent it intended § 301 of the LMRA to preempt state law. Page 471 U. S. 209 In such instances courts sustain a local regulation"unless it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States."Malone v. White Motor Corp., 435 U.S. at 435 U. S. 504. The question posed here is whether this particular Wisconsin tort, as applied, would frustrate the federal labor contract scheme established in § 301.IIIASection 301 of the LMRA states:"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties. . . ."29 U.S.C. § 185(a). In Textile Workers v. Lincoln Mills, 353 U. S. 448 (1957), the Court ruled that § 301 expresses a federal policy that the substantive law to apply in § 301 cases "is federal law, which the courts must fashion from the policy of our national labor laws." Id. at 4 353 U. S. 56. That seminal case understood § 301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts. [Footnote 5]The preemptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U. S. 95, 369 U. S. 103 (1962), where the Court stated that the"dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute [so that] issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy."The Court concluded that, "in enacting § 301 Congress intended doctrines Page 471 U. S. 210 of federal labor law uniformly to prevail over inconsistent local rules." Id. at 104.The Lucas Flour Court specified why the meaning given to terms in collective bargaining agreements must be determined by federal law:"[T]he subject matter of § 301(a) 'is peculiarly one that calls for uniform law.' . . . The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation . . . [and] might substantially impede the parties' willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes."Id. at 369 U. S. 103-104 (footnote omitted).For those reasons, the Court in Lucas Flour held that a suit in state court alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved by reference to federal law. A state rule that purports to define the meaning or scope of a term in a contract suit therefore is preempted by federal labor law.BIf the policies that animate § 301 are to be given their proper range, however, the preemptive effect of § 301 must extend beyond suits alleging contract violations. These policies Page 471 U. S. 211 require that "the relationships created by [a collective bargaining] agreement" be defined by application of "an evolving federal common law grounded in national labor policy." Bowen v. United States Postal Service, 459 U. S. 212, 459 U. S. 224-225 (1983). The interests in interpretive uniformity and predictability that require that labor contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.Were state law allowed to determine the meaning intended by the parties in adopting a particular contract phrase or term, all the evils addressed in Lucas Flour would recur. The parties would be uncertain as to what they were binding themselves to when they agreed to create a right to collect benefits under certain circumstances. As a result, it would be more difficult to reach agreement, and disputes as to the nature of the agreement would proliferate. Exclusion of such claims"from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law."Smith v. Evening News Assn., 371 U. S. 195, 371 U. S. 200 (1962).Of course, not every dispute concerning employment, or tangentially involving a provision of a collective bargaining agreement, is preempted by § 301 or other provisions of the federal labor law. Section 301, on its face, says nothing about the substance of what private parties may agree to in a labor contract. Nor is there any suggestion that Congress, Page 471 U. S. 212 in adopting § 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. [Footnote 6] Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored. Clearly, § 301 does not grant the parties to a collective bargaining agreement the ability to contract for what is illegal under state law. In extending the preemptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract. [Footnote 7] Page 471 U. S. 213Therefore, state law rights and obligations that do not exist independently of private agreements, and that, as a result, can be waived or altered by agreement of private parties, are preempted by those agreements. Cf. Malone v. White Motor Corp., 435 U.S. at 435 U. S. 504-505 (NLRA preemption). [Footnote 8] Our analysis must focus, then, on whether the Wisconsin tort action for breach of the duty of good faith, as applied here, confers nonnegotiable state law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract. If the state tort law purports to define the meaning of the contract relationship, that law is preempted.IVAThe Wisconsin Supreme Court asserted that the tort claim is independent of any contract claim. [Footnote 9] While the nature of Page 471 U. S. 214 the state tort is a matter of state law, the question whether the Wisconsin tort is sufficiently independent of federal contract interpretation to avoid preemption is, of course, a question of federal law. Though the Wisconsin court held that the"specific violation of the labor contract, if there was one, is irrelevant to the issue of whether the defendants exercised bad faith in the manner in which they handled Lueck's claim,"116 Wis.2d at 566, 342 N.W.2d at 703, upon analysis, it appears that the court based this statement not solely on its unassailable understanding of the state tort, but also on assumptions about the scope of the contract provision which it had no authority to make under state law.The Wisconsin court attempted to demonstrate, by a proffered example, the way in which a bad faith tort claim could be unrelated to any contract claim. It noted that an insurer ultimately could pay a claim as required under a contract, but still cause injury through "unreasonably delaying payment" of the claim. Id. at 74, 342 N.W.2d at 707. In such a situation, the court reasoned, the state tort claim would be adjudicated without reaching questions of contract interpretation. Ibid. The court evidently assumed that the only obligations the parties assumed by contract are those expressly recited in the agreement, in this case the right to receive benefit payments for nonoccupational injuries. Page 471 U. S. 215 Thus, the court reasoned, the good faith behavior mandated in the labor agreement was independent of the good faith behavior required by state insurance law, because "[g]ood faith in the labor agreement context means [only] that parties must abide by the specific terms of the labor agreement." Id. at 569, 342 N.W.2d at 704.If this is all there is to the independence of the state tort action, that independence does not suffice to avoid the preemptive effect of § 301. The assumption that the labor contract creates no implied rights is not one that state law may make. Rather, it is a question of federal contract interpretation whether there was an obligation under this labor contract to provide the payments in a timely manner, and, if so, whether Allis-Chalmers' conduct breached that implied contract provision.The Wisconsin court's assumption that the parties contracted only for the payment of insurance benefits, and that questions about the manner in which the payments were made are outside the contract is, moreover, highly suspect. [Footnote 10] There is no reason to assume that the labor contract as interpreted by the arbitrator would not provide such relief. On its face, the agreement allows the Joint Plant Insurance Committee to resolve disputes involving "any insurance-related issues that may arise" (emphasis added), App. 43, and hardly suggests that only disputes involving the right to receive benefits were addressed in the contract. And if the arbitrator ruled that the labor agreement did not provide Page 471 U. S. 216 such relief expressly or by implication, that too should end the dispute, for, under Wisconsin law, there is nothing that suggests that it is not within the power of the parties to determine what would constitute "reasonable" performance of their obligations under an insurance contract. In sum, the Wisconsin court's statement that the tort was independent from a contract claim apparently was intended to mean no more than that the implied duty to act in good faith is different from the explicit contractual duty to pay. Since the extent of either duty ultimately depends upon the terms of the agreement between the parties, both are tightly bound with questions of contract interpretation that must be left to federal law.BThe conclusion that the Wisconsin court meant by "independent" that the tort is unrelated to an explicit provision of the contract is buttressed by analysis of the genesis and operation of the state tort. Under Wisconsin law, the tort intrinsically relates to the nature and existence of the contract. Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13-16, 235 N.W. 413, 414-415 (1931). Thus, the tort exists for breach of a "duty devolv[ed] upon the insurer by reasonable implication from the express terms of the contract," the scope of which, crucially, is "ascertained from a consideration of the contract itself." Id. at 16, 235 N.W. at 415. In Hilker, the court specifically noted:"Generally speaking, good faith means being faithful to one's duty or obligation; bad faith means being recreant thereto. In order to understand what is meant by bad faith, a comprehension of one's duty is generally necessary, and we have concluded that we can best indicate the circumstances under which the insurer may become liable to the insured . . . by giving with some particularity our conception of the duty which the written contract of insurance imposes upon the carrier."Id. at 13, 235 N.W. at 414. Page 471 U. S. 217The duties imposed and rights established through the state tort thus derive from the rights and obligations established by the contract. In Anderson v. Continental Ins. Co., 85 Wis.2d 675, 689, 271 N.W.2d 368, 375-376 (1978), which established that, in Wisconsin, an insured may assert a cause of action in tort against an insurer for the bad faith refusal to honor the insured's claim, the court stated that the tort duty was derived from the implied covenant of good faith and fair dealing found in every contract. It relied for that proposition on the Restatement (Second) of Contracts § 205 (1981), as well as on the adoption of the Restatement's position in Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 575, 510 P.2d 1032, 1038 (1973). The Gruenberg court explicitly stated that the breach sounded in both tort and contract, and there is no indication in Wisconsin law that the tort is anything more than a way to plead a certain kind of contract violation in tort in order to recover exemplary damages not otherwise available under Wisconsin law. Anderson v. Continental Ins. Co., 85 Wis.2d at 686-687, 271 N.W.2d at 374. [Footnote 11] Therefore, under Wisconsin law, it appears that the parties to an insurance contract are free to bargain about what "reasonable" performance of their contract obligation entails. That being so, this tort claim is firmly rooted in the expectations of the parties that must be evaluated by federal contract law. Page 471 U. S. 218Because the right asserted not only derives from the contract, but is defined by the contractual obligation of good faith, any attempt to assess liability here inevitably will involve contract interpretation. The parties' agreement as to the manner in which a benefit claim would be handled will necessarily be relevant to any allegation that the claim was handled in a dilatory manner. Similarly, the question whether Allis-Chalmers required Lueck to be examined by an inordinate number of physicians evidently depends in part upon the parties' understanding concerning the medical evidence required to support a benefit claim. [Footnote 12] These questions of contract interpretation, therefore, underlie any finding of tort liability, regardless of the fact that the state court may choose to define the tort as "independent" of any contract question. [Footnote 13] Congress has mandated that federal law govern Page 471 U. S. 219 the meaning given contract terms. Since the state tort purports to give life to these terms in a different environment, it is preempted.CA final reason for holding that Congress intended § 301 to preempt this kind of derivative tort claim is that only that result preserves the central role of arbitration in our "system of industrial self-government." Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 363 U. S. 581 (1960). If respondent had brought a contract claim under § 301, he would have had to attempt to take the claim through the arbitration procedure established in the collective bargaining agreement before bringing suit in court. Perhaps the most harmful aspect of the Wisconsin decision is that it would allow essentially the same suit to be brought directly in state court without first exhausting the grievance procedures established in the bargaining agreement. The need to preserve the effectiveness of arbitration was one of the central reasons that underlay the Court's holding in Lucas Flour. See 369 U.S. at 369 U. S. 105. The parties here have agreed that a neutral arbitrator will be responsible, in the first instance, for interpreting the meaning of their contract. Unless this suit is preempted, their federal right to decide who is to resolve contract disputes will be lost.Since nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good faith obligation under a contract, the arbitrator's role in every case could be bypassed easily if § 301 is not understood to preempt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge -- in short, the whole range of disputes traditionally resolved through arbitration -- could be Page 471 U. S. 220 brought in the first instance in state court by a complaint in tort, rather than in contract. A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, Republic Steel Corp. v. Maddox, 379 U. S. 650, 379 U. S. 653 (1965), as well as eviscerate a central tenet of federal labor contract law under § 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance.VThe right that Lueck asserts is rooted in contract, and the bad faith claim he brings could have been pleaded as a contract claim under § 301. Unless federal law governs that claim, the meaning of the health and disability benefit provisions of the labor agreement would be subject to varying interpretations, and the congressional goal of a unified federal body of labor contract law would be subverted. The requirements of § 301, as understood in Lucas Flour, cannot vary with the name appended to a particular cause of action.It is perhaps worth emphasizing the narrow focus of the conclusion we reach today. We pass no judgment on whether this suit also would have been preempted by other federal laws governing employment or benefit plans. Nor do we hold that every state law suit asserting a right that relates in some way to a provision in a collective bargaining agreement, or more generally to the parties to such an agreement, necessarily is preempted by § 301. The full scope of the preemptive effect of federal labor contract law remains to be fleshed out on a case-by-case basis. We do hold that, when resolution of a state law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U. S. 557 (1968), or dismissed as preempted by federal labor contract law. This complaint should have been dismissed Page 471 U. S. 221 for failure to make use of the grievance procedure established in the collective bargaining agreement, Republic Steel Corp. v. Maddox, 379 U.S. at 379 U. S. 652, or dismissed as preempted by § 301. The judgment of the Wisconsin Supreme Court therefore is reversed.It is so ordered

U.S. Supreme CourtAllis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)Allis-Chalmers Corp. v. LueckNo. 83-1748Argued January 16, 1985Decided April 16, 1985471 U.S. 202SyllabusThe bad-faith handling of an insurance claim, including a claim under a disability insurance plan included in a collective bargaining agreement, is a tort under Wisconsin law. Petitioner and a labor union, of which respondent employee of petitioner is a member, are parties to a collective bargaining agreement that incorporates a self-funded disability plan administered by an insurance company and providing benefits for nonoccupational injuries to employees. The agreement establishes a disability grievance procedure that culminates in final and binding arbitration. Respondent, after suffering a nonoccupational injury, entered into a dispute over the manner in which petitioner and the insurer handled his disability claim. Rather than utilizing the grievance procedure, respondent brought a tort suit against petitioner and the insurer in a Wisconsin state court, alleging bad faith in the handling of his claim and seeking damages. The trial court ruled in favor of petitioner and the insurer, holding that respondent had stated a claim under § 301 of the Labor Management Relations Act, which provides that suits for violations of collective bargaining agreements may be brought in federal district court. In the alternative, if the claim were deemed to arise under state law, rather than § 301, it was preempted by federal labor law. The Wisconsin Court of Appeals affirmed. The Wisconsin Supreme Court reversed, holding that the claim did not arise under § 301 as constituting a violation of a labor contract, but was a tort claim of bad faith. The court reasoned that, under Wisconsin law, the tort of bad faith is distinguishable from a bad-faith breach-of-contract claim, and that, although a breach of duty is imposed as a consequence of the relationship established by contract, it is independent from that contract.Held: When resolution of a state law claim is substantially dependent upon analysis of the terms of a collective bargaining agreement, that claim must either be treated as a § 301 claim or dismissed as preempted by federal labor contract law. Here, respondent's claim should have been dismissed for failure to make use of the grievance procedure or as preempted by § 301. The right asserted by respondent is rooted in contract, and the bad faith claim could have been pleaded as a contract claim under § 301. Unless federal law governs that claim, the meaning of the disability benefit provisions of the collective bargaining agreement Page 471 U. S. 203 would be subject to varying interpretations, and the congressional goal of a unified body of labor contract law would be subverted. Preemption is also necessary to preserve the central role of arbitration in the resolution of labor disputes. Pp. 471 U. S. 208-221.116 Wis.2d 559, 342 N.W.2d 699, reversed.BLACKMUN, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case.

1984_83-1416

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether the National Labor Relations Board may exclude from a collective bargaining unit employees who are relatives of the owners of a closely held corporation that employs them, without a finding that the employees receive special job-related benefits.IRespondent Action Automotive, Inc., is a retail automobile parts and gasoline dealer with stores in a number of Michigan cities. Action Automotive is a closely held corporation owned equally by three brothers, Richard, Robert, and James Sabo. The Sabo brothers are actively involved in the Page 469 U. S. 492 daily operations of the business. They serve as the corporation's officers, make all policy decisions, and retain ultimate authority for the supervision of every department.In March, 1981, the Retail Store Employees Union, Local 40 (the Union), filed with the Board a petition requesting that a representation election be held among Action Automotive's employees. Action Automotive and the Union agreed to elections in two bargaining units -- one consisting of employees at the company's nine retail stores and the other comprising clerical employees at the company's headquarters. The elections were held on May 29, 1981, and the Union received a plurality of votes in each unit; [Footnote 1] enough ballots were challenged by each side, however, to place the outcome of the elections in doubt. We are concerned only with the Union's challenge to the ballots of Diane and Mildred Sabo.Diane Sabo is the wife of Action Automotive's president and one-third owner, Richard Sabo. She works as a general ledger clerk at the company's headquarters in Flint, Michigan. She resides with her husband and both work at the same office. Unlike other clerical workers, she works part time and receives a salary. She also is allowed to take breaks when she pleases, and she often spends her break in her husband's office.Mildred Sabo is the mother of the three Sabo brothers who own and manage Action Automotive. She is employed as a full-time cashier at the company's store in Barton, Michigan. Mildred Sabo lives with James Sabo, secretary-treasurer of the corporation, and she regularly sees or telephones her other sons and their families. She earns 25 cents per hour more than any other cashier, but she is also one of the company's most experienced cashiers.In light of these facts, the Board's hearing officer concluded that Diane Sabo's interests are different from those of other clerical employees in the company's headquarters, Page 469 U. S. 493 and that Mildred Sabo's "interests are more closely aligned with management than with the employees of Action Automotive." App. to Pet. for Cert. 36a. He reached this conclusion without finding that Diane and Mildred Sabo enjoy special job-related benefits. Believing that such a finding was not a prerequisite to excluding the two women from the bargaining units, the hearing officer recommended that the Union's challenge to their ballots be sustained.The Board adopted the hearing officer's recommendations [Footnote 2] and, after all qualified votes were counted, certified the Union as the exclusive bargaining representative for the two units. When Action Automotive refused to bargain, the Union filed charges with the Board. The Board, relying on its earlier certification decision, found that Action Automotive had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (Act), 61 Stat. 140, 141, 29 U.S.C. §§ 158(a)(1) and (5), and ordered the company to bargain with the Union. 262 N.L.R.B. 423 (1982).The United States Court of Appeals for the Sixth Circuit denied enforcement of the Board's order. 717 F.2d 1033 (1983). The panel, apparently feeling bound by the Circuit's prior decisions, see, e.g., NLRB v. Hubbard Co., 702 F.2d 634 (1983), held that the Board had no authority under § 9(b) of the Act to exclude employees from a bargaining unit based solely on their close family relationship with those who own and operate the business. The court held that an employee's family ties may be a factor justifying exclusion from a bargaining unit only "when the employee receive[s] job-related benefits or other favorable working conditions which flow from the relationship." 717 F.2d at 1035. Under this standard, the court concluded that there was insufficient evidence that Diane and Mildred Sabo enjoy special job-related Page 469 U. S. 494 benefits, and that the Board erred in excluding them from the units.The Sixth Circuit's holding conflicts with the decisions of other Circuits [Footnote 3] and restricts the Board's statutory authority to define bargaining units. We granted certiorari, 466 U.S. 970 (1984), and we reverse.IISection 9(b) of the Act vests in the Board authority to determine "the unit appropriate for the purposes of collective bargaining." 61 Stat. 143, 29 U.S.C. § 159(b). The Board's discretion in this area is broad, reflecting Congress' recognition "of the need for flexibility in shaping the [bargaining] unit to the particular case." NLRB v. Hearst Publications, Inc., 322 U. S. 111, 322 U. S. 134 (1944). The Board does not exercise this authority aimlessly; in defining bargaining units, its focus is on whether the employees share a "community of interest." See South Prairie Construction Co. v. Operating Engineers, 425 U. S. 800, 425 U. S. 805 (1976) (per curiam); 15 NLRB Ann.Rep. 39 (1950). A cohesive unit -- one relatively free of conflicts of interest -- serves the Act's purpose of effective collective bargaining, Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 313 U. S. 165 (1941), and prevents a minority interest group from being submerged in an overly large unit, Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 404 U. S. 172-173 (1971).The Board has long hesitated to include the relatives of management in bargaining units because "their interests are sufficiently distinguished from those of the other employees." Louis Weinberg Associates, Inc., 13 N.L.R.B. 66, 69 (1939). From the earliest days of the Wagner Act, ch. 372, 49 Stat. 449 et seq., until 1953, the Board automatically excluded close relatives of a manager or owner of a closely Page 469 U. S. 495 held company. See, e.g., Jerry and Edythe Belanger, 32 N.L.R.B. 1276, 1279, and n. 4. (1941). This bright-line approach was abandoned, however, in International Metal Products Co., 107 N.L.R.B. 65, 67 (1953), and now the Board considers a variety of factors in deciding whether an employee's familial ties are sufficient to align his interests with management and thus warrant his exclusion from a bargaining unit. [Footnote 4]For instance, a relevant consideration is whether the employee resides with or is financially dependent on a relative who owns or manages the business; such an employee is typically excluded from the unit. See, e.g., Pandick Press Midwest, Inc., 251 N.L.R.B. 473, 473-474 (1980). The greater the family involvement in the ownership and management of the company, the more likely the employee-relative will be viewed as aligned with management and hence excluded. [Footnote 5] See factors listed in NLRB v. Caravelle Wood Products, Inc., 466 F.2d 675, 679 (CA7 1972). The Board, of course, is always concerned with whether the employee receives special job-related benefits such as high wages or favorable working conditions. See, e.g., Holthose Furniture Corp., 242 N.L.R.B. 414, 415-416 (1979). When other criteria satisfy the Board that the employee-relative's interests are aligned with management, however, he may be excluded from the unit even though he enjoys no special job-related benefits. E.g., Marvin Witherow Trucking, 229 N.L.R.B. 412, 412-413 (1977).Our review is limited to whether the Board's practice of excluding some close relatives who do not enjoy special Page 469 U. S. 496 job-related benefits has a "reasonable basis in law." NLRB v. Hearst Publications, Inc., supra, at 322 U. S. 131. In reviewing Board decisions, we consistently yield to the Board's reasonable interpretations and applications of the Act, see NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 465 U. S. 829-830 (1984); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 467 U. S. 891 (1984). Indeed, the Board's orders defining bargaining units are "rarely to be disturbed." Packard Motor Car Co. v. NLRB, 330 U. S. 485, 330 U. S. 491 (1947).The Board's policy regarding family members, although not defined by bright-line rules, is a reasonable application of its "community of interest" standard. [Footnote 6] Close relatives of management, particularly those who live with an owner or manager, are likely to "get a more attentive and sensitive ear to their day-to-day and long-range work concerns than would other employees." Parisoff Drive Market, 201 N.L.R.B. 813, 814 (1973). And it is reasonable for the Board to assume that the family member who is significantly dependent on a member of management will tend to equate his personal interests with the business interests of the employer. Ibid. The very presence at union meetings of close relatives of management could tend to inhibit free expression of views and threaten the confidentiality of union attitudes and voting. See generally ibid.; NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 454 U. S. 193-194 (1981) (POWELL, J., concurring in part and dissenting in part).It can be argued that the Board's policy is overbroad -- that excluding from bargaining units only those family members who receive special job-related benefits adequately serves the Act's objectives. However, we do not make labor policy under § 9(b); Congress vested that authority in the Board, Page 469 U. S. 497 which brings its extensive experience in the administration of the Act to bear on questions of unit determinations. See NLRB v. Hendricks County Rural Electric Membership Corp., supra, at 454 U. S. 190; Packard Motor Car Co. v. NLRB, supra, at 330 U. S. 492-493. We do not require "mathematical precision," NLRB v. Hearst Publications, Inc., supra, at 322 U. S. 133, and are not prepared to second-guess the Board's informed judgment that a bargaining unit's community of interest may be diluted by circumstances other than divergent job-related benefits.The Board's decision to exclude some family members is not inconsistent with the fundamental structure or policies of the Act. Congress knows how to limit the Board's discretion to define collective bargaining units. For example, § 9(c)(5) of the Act states that "the extent to which the employees have organized shall not be controlling" in determining whether a unit is appropriate. 29 U.S.C. § 159(c)(5). By contrast, there is no express direction that the Board define bargaining units only by reference to job-related benefits such as wages and working conditions. We are not authorized to bind the Board in ways not mandated by Congress.Action Automotive's extensive reliance on § 2(3) of the Act is misplaced. Section 2(3) excludes from the Act's definition of "employee" "any individual employed by his parent or spouse." [Footnote 7] 61 Stat. 138, 29 U.S.C. § 152(3). Such a person is completely outside the scope of the statute, and may not invoke its protection. See, e.g., Campbell-Harris Electric, Inc., 263 N.L.R.B. 1143, 1143-1144, enf'd, 719 F.2d 292 (CA8 1983). Family members who fall within the Act's broad definition of "employee," however, have no statutory Page 469 U. S. 498 right to be included in collective bargaining units under § 9(b). The Board is free to exclude from bargaining units persons who are statutory "employees" otherwise protected by the Act. [Footnote 8] See, e.g., Hendricks County Rural Electric Membership Corp., supra, at 454 U.S. 454 U. S. 190-190.Nor does the Board's policy of excluding close relatives of management without a showing of special job-related benefits run afoul of the Act's mandate that the Board remain "wholly neutral" as between the contending parties in representation elections, see NLRB v. Savair Mfg. Co., 414 U. S. 270, 414 U. S. 278 (1973). Strictly speaking, the Board does not exclude a family member from a bargaining unit because he is likely to vote against the union. Rather, the family member is excluded, if at all, because the Board determines, on the basis of objective factors, that he lacks common interests with fellow employees who are not so related. In some cases, the Board's policy may have the effect of favoring union representation; however, a disparate impact does not violate the principle of neutrality. Indeed, virtually every Board decision concerning an appropriate bargaining unit -- e.g., the proper size of the unit -- favors one side or the other.The Board, in applying its general policy to the facts of this case, did not abuse its discretion. Diane Sabo resides with her husband, the president and one-third owner of Action Automotive; Mildred Sabo, the mother of the three owners, lives with one of her sons. All three owners are closely related and actively involved in running the business on a day-to-day basis. Diane Sabo works at the same office with her husband and occasionally takes her coffee breaks in his office. Mildred Sabo has daily contacts with her sons. Certainly their participation in the collective bargaining units would be viewed with suspicion by other employees. On these facts, the Board could reasonably conclude that Diane and Mildred Sabo's interests are more likely to be aligned with the business Page 469 U. S. 499 interests of the family than with the interests of the employees.We hold that the Board did not exceed its authority in excluding from collective bargaining units close relatives of management, without a finding that the relatives enjoy special job-related privileges. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtNLRB v. Action Automotive, Inc., 469 U.S. 490 (1985)National Labor Relations Board v. Action Automotive, Inc.No. 83-1416Argued October 29, 1984Decided February 19, 1985469 U.S. 490SyllabusRespondent, a retail automobile parts and gasoline dealer, is a closely held corporation owned equally by three brothers, who serve as officers and are actively involved in running the business. In 1981, a union filed with the National Labor Relations Board a petition requesting that a representation election be held among respondent's employees. Thereafter, an election was held and the union received a plurality of the votes, but enough ballots were challenged on each side to place the outcome in doubt. Among the ballots challenged by the union were those of one owner's wife, who works as a clerk at the same location as her husband and occasionally takes coffee breaks in his office, and of the owners' mother, who is a cashier at one of respondent's stores and lives with one of the owners. Concluding that the wife's interests were different from those of other clerical employees and that the mother's interests were more closely aligned with management than with the employees, but without making a finding that the wife and mother enjoyed special job-related benefits, the Board's hearing officer recommended that the union's challenge to the ballots be sustained. The Board adopted this recommendation and, after all qualified votes were counted, certified the union as the exclusive bargaining representative. When respondent refused to bargain, the union filed charges with the Board, which held that respondent had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (Act), and ordered respondent to bargain. The Court of Appeals denied enforcement of the Board's order, holding that the Board had no authority under § 9(b) of the Act to exclude employees from a bargaining unit based solely on their close family relationship with those who own and operate the business, that an employee's family ties may be a factor justifying exclusion only when the employee receives job-related benefits that flow from the relationship, and that, in this case, there was insufficient evidence that the wife and mother enjoyed such benefits.Held: The Board did not exceed its authority in excluding from collective bargaining units close relatives of management, without making a finding that the relatives enjoy special job-related privileges. Pp. 469 U. S. 494-499.(a) The Board's policy of considering a variety of factors in deciding whether an employee's familial ties are sufficient to align his interests Page 469 U. S. 491 with management so as to warrant his exclusion from a bargaining unit, is a reasonable application of the Board's standard whereby, in defining bargaining units, its focus is on whether the employees share a "community of interest." The Board's decision to exclude some family members is entitled to deference, and is not inconsistent with the Act's fundamental structure or policies. Nor does the Board's policy of excluding close relatives of management without a showing of special job-related benefits run afoul of the Act's mandate that the Board remain "wholly neutral" as between the contending parties in a representation election. Pp. 469 U. S. 494-498.(b) On the facts of this case, the Board could reasonably conclude that the wife's and mother's interests were more likely to be aligned with the family's business interests than with the employees' interests. Pp. 469 U. S. 498-499.717 F.2d 1033, reversed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST and O'CONNOR, JJ., joined,post, p. 469 U. S. 499.

1985_85-5319

JUSTICE POWELL delivered the opinion of the Court.This case presents three questions concerning the validity of petitioner's criminal conviction and death sentence: (i) whether the exclusion for cause of a member of the venire violated the principles announced in Wainwright v. Witt, 469 U. S. 412 (1985); (ii) whether the prosecution's closing argument during the guilt phase of a bifurcated trial rendered the trial fundamentally unfair and deprived the sentencing determination of the reliability required by the Eighth Amendment; and (iii) whether petitioner was denied effective assistance of counsel at the sentencing phase of his trial.IPetitioner was tried and found guilty of murder, robbery, and assault with intent to kill in the Circuit Court for Citrus County, Florida, in January, 1974. Pursuant to Florida's capital sentencing statute, the same jury that convicted petitioner heard further testimony and argument in order to make a nonbinding recommendation as to whether a death sentence should be imposed. The jury recommended a death sentence, and the trial judge followed that recommendation. On direct appeal, the Florida Supreme Court affirmed the conviction and the sentence. Petitioner made several of the same arguments in that appeal that he makes here. With respect to the prosecutorial misconduct claim, the court disapproved of the closing argument, but reasoned that the law required a new trial"only in those cases in which it is reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt . . . or in which the comment is unfair."Darden v. State, 329 So. 2d 287, 289 (1976). It concluded that the comments had not rendered Page 477 U. S. 171 petitioner's trial unfair. Petitioner's challenge to the juror exclusion was rejected without comment. Petitioner did not at that time raise his claim of ineffective assistance of counsel. This Court granted certiorari, 429 U.S. 917 (1976), limited the grant to the claim of prosecutorial misconduct, 429 U.S. 1036 (1977), heard oral argument, and dismissed the writ as improvidently granted, 430 U. S. 704 (1977).Petitioner then sought federal habeas corpus relief, raising the same claims he raises here. The District Court denied the petition. Darden v. Wainwright, 513 F. Supp. 947 (MD Fla.1981). A divided panel of the Court of Appeals for the Eleventh Circuit affirmed. Darden v. Wainwright, 699 F.2d 1031 (1983). The Court of Appeals granted rehearing en banc, and affirmed the District Court by an equally divided court. 708 F.2d 646 (1983). Following a second rehearing en banc, the Court of Appeals reversed on the claim of improper excusal of a member of the venire. 725 F.2d 1526 (1984). This Court granted the State's petition for certiorari on that claim, vacated the Court of Appeals' judgment, and remanded for reconsideration in light of Wainwright v. Witt, 469 U.S. 1202 (1985). On remand, the en banc court denied relief, 767 F.2d 752 (1985). Petitioner filed an application for a stay of his execution that this Court treated as a petition for certiorari and granted, at the same time staying his execution. 473 U. S. 928 (1985). We now affirm.IIBecause of the nature of petitioner's claims, the facts of this case will be stated in more detail than is normally necessary in this Court. On September 8, 1973, at about 5:30 p.m., a black adult male entered Carl's Furniture Store near Lakeland, Florida. The only other person in the store was the proprietor, Mrs. Turman, who lived with her husband in a house behind the store. Mr. Turman, who worked nights at a juvenile home, had awakened at about 5 p.m., had a cup of coffee at the store with his wife, and returned home to let Page 477 U. S. 172 their dogs out for a run. Mrs. Turman showed the man around the store. He stated that he was interested in purchasing about $600 worth of furniture for a rental unit, and asked to see several different items. He left the store briefly, stating that his wife would be back to look at some of the items.The same man returned just a few minutes later asking to see some stoves, and inquiring about the price. When Mrs. Turman turned toward the adding machine, he grabbed her and pressed a gun to her back, saying "Do as I say and you won't get hurt." He took her to the rear of the store and told her to open the cash register. He took the money, then ordered her to the part of the store where some box springs and mattresses were stacked against the wall. At that time, Mr. Turman appeared at the back door. Mrs. Turman screamed while the man reached across her right shoulder and shot Mr. Turman between the eyes. Mr. Turman fell backwards, with one foot partially in the building. Ordering Mrs. Turman not to move, the man tried to pull Mr. Turman into the building and close the door, but could not do so because one of Mr. Turman's feet was caught in the door. The man left Mr. Turman face-up in the rain, and told Mrs. Turman to get down on the floor approximately five feet from where her husband lay dying. While she begged to go to her husband, he told her to remove her false teeth. He unzipped his pants, unbuckled his belt, and demanded that Mrs. Turman perform oral sex on him. She began to cry "Lord, have mercy." He told her to get up and go towards the front of the store.Meanwhile, a neighbor family, the Arnolds, became aware that something had happened to Mr. Turman. The mother sent her 16-year-old son Phillip, a part-time employee at the furniture store, to help. When Phillip reached the back door, he saw Mr. Turman lying partially in the building. When Phillip opened the door to take Turman's body inside, Mrs. Turman shouted "Phillip, no, go back." Phillip did not know Page 477 U. S. 173 what she meant, and asked the man to help get Turman inside. He replied, "Sure, buddy, I will help you." As Phillip looked up, the man was pointing a gun in his face. He pulled the trigger and the gun misfired; he pulled the trigger again and shot Phillip in the mouth. Phillip started to run away, and was shot in the neck. While he was still running, he was shot a third time in the side. Despite these wounds, Phillip managed to stumble to the home of a neighbor, Mrs. Edith Hill. She had her husband call an ambulance while she tried to stop Phillip's bleeding. While she was helping Phillip, she saw a late model green Chevrolet leave the store and head towards Tampa on State Highway 92. Phillip survived the incident; Mr. Turman, who never regained consciousness, died later that night.Minutes after the murder petitioner was driving towards Tampa on Highway 92, just a few miles away from the furniture store. He was out on furlough from a Florida prison, and was driving a car borrowed from his girlfriend in Tampa. He was driving fast on a wet road. Petitioner testified that as he came up on a line of cars in his lane, he was unable to slow down. He attempted to pass, but was forced off the road to avoid a head-on collision with an oncoming car. Petitioner crashed into a telephone pole. The driver of the oncoming car, John Stone, stopped his car and went to petitioner to see if he could help. Stone testified that, as he approached the car, petitioner was zipping up his pants and buckling his belt. Police at the crash site later identified petitioner's car as a 1969 Chevrolet Impala of greenish golden brown color. Petitioner paid a bystander to give him a ride to Tampa. Petitioner later returned with a wrecker, only to find that the car had been towed away by the police.By the time the police arrived at the scene of the accident, petitioner had left. The fact that the car matched the description of the car leaving the scene of the murder, and that the accident had occurred within three and one-half miles of the furniture store and within minutes of the murder, led police Page 477 U. S. 174 to suspect that the car was driven by the murderer. They searched the area. An officer found a pistol -- a revolver -- about 40 feet from the crash site. The arrangement of shells within the chambers exactly matched the pattern that should have been found in the murder weapon: one shot, one misfire, followed by three shots, with a live shell remaining in the next chamber to be fired. A specialist for the Federal Bureau of Investigation examined the pistol and testified that it was a Smith & Wesson .38 special revolver. It had been manufactured as a standard .38; it later was sent to England to be rebored, making it a much rarer type of gun than the standard .38. An examination of the bullet that killed Mr. Turman revealed that it came from a .38 Smith & Wesson special.On the day following the murder, petitioner was arrested at his girlfriend's house in Tampa. A few days later, Mrs. Turman identified him at a preliminary hearing as her husband's murderer. Phillip Arnold selected petitioner's picture out of a spread of six photographs as the man who had shot him. [Footnote 1] By that time, a Public Defender had been appointed to represent petitioner. Page 477 U. S. 175As petitioner's arguments all relate to incidents in the course of his trial, they will be taken up, together with the relevant facts, in chronological order.IIIPetitioner contends that one member of the venire, Mr. Murphy, was excluded improperly under the test enunciated in Wainwright v. Witt, 469 U. S. 412 (1985). That case modified this Court's opinion in Witherspoon v. Illinois, 391 U. S. 510 (1968). Witherspoon had held that potential jurors may be excused for cause when their opposition to the death penalty is such that they automatically would vote against a sentence of death or would be impaired in the task of determining defendant's guilt. Witt held that the proper test is whether the juror's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" 469 U.S. at 469 U. S. 424, quoting Adams v. Texas, 448 U. S. 38, 448 U. S. 45 (1980). Witt also made clear that the trial judge's determination that a potential juror is impermissibly biased is a factual finding entitled to a presumption of correctness under 28 U.S.C. § 2254.Petitioner's argument on this issue relies solely on the wording of a question the trial court asked Murphy before excluding him. The court asked:"Do you have any moral or religious, conscientious moral or religious principles in opposition Page 477 U. S. 176 to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?"App. 9. Petitioner argues that this question does not correctly state the relevant legal standard. As Witt makes clear, however, our inquiry does not end with a mechanical recitation of a single question and answer. 469 U.S. at 469 U. S. 424-426. We therefore examine the context surrounding Murphy's exclusion to determine whether the trial court's decision that Murphy's beliefs would "substantially impair the performance of his duties as a juror" was fairly supported by the record.During voir dire, but prior to individual questioning on this point, the trial court spoke to the entire venire, including Murphy, saying:"Now I am going to ask each of you individually the same question, so listen to me carefully, I want to know if any of you have such strong religious, moral or conscientious principles in opposition to the death penalty that you would be unwilling to vote to return an advisory sentence recommending the death sentence even though the facts presented to you should be such as under the law would require that recommendation? Do you understand my question?"The court then proceeded to question the members of the venire individually, but did so while the entire venire was present in the courtroom. Thus, throughout the individual questioning, all the veniremen could hear the questions and answers. In fact, the prosecution frequently incorporated prior questioning of other veniremen by reference, each time with the assurance from the individual being questioned that he or she had heard and understood the previous questions. See Tr. 89-90, 112, 141-142; see also id. at 150. Page 477 U. S. 177The court repeatedly stated the correct standard when questioning individual members of the venire. [Footnote 2] Murphy was present and heard the court ask the proper Witherspoon question over and over again. [Footnote 3] After many instances of such Page 477 U. S. 178 questioning, Murphy was seated in the jury box. The court first asked Murphy his occupation, and learned that he was retired, but had spent the eight years before retirement working in the administration office of St. Pios Seminary. As previously noted, the court then asked:"Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable, without violating your own principles, to vote to recommend a death penalty regardless of the facts?"After Murphy responded "Yes, I have," he was excused.The precise wording of the question asked of Murphy, and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty. But Witt recognized that "determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism." 469 U.S. at 469 U. S. 424. The trial court, "aided as it undoubtedly was by its assessment of [the potential juror's] demeanor," id. at 469 U. S. 434, was under the obligation to determine whether Murphy's views would "prevent or substantially impair the performance of his duties as a juror,'" id. at 469 U. S. 424. In making this determination, the trial court could take account of the fact that Murphy was present throughout an entire series of questions that made the purpose and meaning of the Witt inquiry absolutely clear. No specific objection was made to the excusal of Murphy by defense counsel. Nor did the court perceive, as it had previously, any need to question further. Viewing the record of voir dire in its entirety, we agree with the reasoning of the Court of Appeals that the trial court's decision to exclude this juror was proper. 767 F.2d at 754.IVPetitioner next contends that the prosecution's closing argument at the guilt-innocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing Page 477 U. S. 179 determination of the reliability that the Eighth Amendment requires.It is helpful as an initial matter to place these remarks in context. Closing argument came at the end of several days of trial. Because of a state procedural rule, [Footnote 4] petitioner's counsel had the opportunity to present the initial summation as well as a rebuttal to the prosecutors' closing arguments. The prosecutors' comments must be evaluated in light of the defense argument that preceded it, which blamed the Polk County Sheriff's Office for a lack of evidence, [Footnote 5] alluded to the death penalty, [Footnote 6] characterized the perpetrator of the crimes as an "animal," [Footnote 7] and contained counsel's personal opinion of the strength of the State's evidence. [Footnote 8]The prosecutors then made their closing argument. That argument deserves the condemnation it has received from every court to review it, although no court has held that the argument rendered the trial unfair. Several comments attempted to place some of the blame for the crime on the Page 477 U. S. 180 Division of Corrections, because Darden was on weekend furlough from a prison sentence when the crime occurred. [Footnote 9] Some comments implied that the death penalty would be the only guarantee against a future similar act. [Footnote 10] Others incorporated the defense's use of the word "animal." [Footnote 11] Prosecutor McDaniel made several offensive comments reflecting an emotional reaction to the case. [Footnote 12] These comments undoubtedly were improper. But as both the District Court and the Page 477 U. S. 181 original panel of the Court of Appeals (whose opinion on this issue still stands) recognized, it "is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright, 699 F.2d at 1036. The relevant question is whether the prosecutors' comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U. S. 637 (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Id. at 416 U. S. 642.Under this standard of review, we agree with the reasoning of every court to consider these comments that they did not deprive petitioner of a fair trial. [Footnote 13] The prosecutors' argument Page 477 U. S. 182 did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused, such as the right to counsel or the right to remain silent. See Darden v. Wainwright, 513 F. Supp. at 958. Much of the objectionable content was invited by, or was responsive to, the opening summation of the defense. As we explained in United States v. Young, 470 U. S. 1 (1985), the idea of "invited response" is used not to excuse improper comments, but to determine their effect on the trial as a whole. Id. at 470 U. S. 13. The trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. The weight of the evidence against petitioner was heavy; the "overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges," 329 So. 2d at 291, reduced the likelihood that the jury's decision was influenced by argument. Finally, defense counsel made the tactical decision not to present any witness other than petitioner. This decision not only permitted them to give their summation prior to the prosecution's closing argument, but also gave them the opportunity to make a final rebuttal argument. Defense counsel were able to use the opportunity for rebuttal very effectively, turning much of the prosecutors' closing argument against them by placing many of the prosecutors' comments and actions in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner. [Footnote 14] Page 477 U. S. 183 For these reasons, we agree with the District Court below that "Darden's trial was not perfect -- few are -- but neither was it fundamentally unfair." 513 F. Supp. at 958. [Footnote 15] Page 477 U. S. 184VPetitioner contends that he was denied effective assistance of counsel at the sentencing phase of trial. That claim must be evaluated against the two-part test announced in Strickland v. Washington, 466 U. S. 668 (1984). First, petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 466 U. S. 688. Second, petitioner must show that "counsel's representation fell below and objective standard of reasonableness." Id. at 466 U. S. 688. Second, petitioner must show that"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 466 U. S. 694. Petitioner argues that his trial counsel did not delve sufficiently into his background, and, as a result, were unprepared to present mitigating evidence at the sentencing hearing.As an initial matter, petitioner contends that the trial counsel devoted only the time between the close of the guilt phase of trial and the start of the penalty phase -- approximately one-half hour -- to preparing the case in mitigation. That argument is without merit. Defense counsel engaged in extensive preparation prior to trial, in a manner that included preparation for sentencing. Mr. Jack Johnson, head of the Public Defender's office at the time, stated to the habeas court that "we had expended hundreds of hours on [petitioner's] behalf trying to represent him," Tr. of Habeas Corpus Proceedings 219, and that his office "worked very hard on the case." Id. at 237. Mr. Goodwill, an experienced criminal trial lawyer, testified that he"spent more time on this case Page 477 U. S. 185 than I spent on . . . any capital case I have been involved in, probably more time than any case I've ever been involved in."Supp.App. 30. That included time investigating petitioner's alibi, and driving petitioner around the scene of events to establish each point of his story. Counsel obtained a psychiatric report on petitioner, with an eye toward using it in mitigation during sentencing. Counsel also learned in pretrial preparation that Mrs. Turman was opposed to the death penalty, and considered the possibility of putting her on the stand at the sentencing phase. The record clearly indicates that a great deal of time and effort went into the defense of this case; a significant portion of that time was devoted to preparation for sentencing.Petitioner also claims that his trial counsel interpreted Fla.Stat. § 921.141(6) (1985), a statutory list of mitigating factors, as an exclusive list. He contends that their failure to introduce any evidence in mitigation was the result of this interpretation of the statute, and that he was thereby deprived of effective assistance of counsel. We express no view about the reasonableness of that interpretation of Florida law, because, in this case, the trial court specifically informed petitioner and his counsel just prior to the sentencing phase of trial that they could"go into any other factors that might really be pertinent to full consideration of your case and the analysis of you and your family situation, your causes, or anything else that might be pertinent to what is the appropriate sentence."Tr. 887. At that point, even if counsel previously believed the list to be exclusive, they knew they were free to offer nonstatutory mitigating evidence, and chose not to do so.As we recognized in Strickland:"Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."466 U.S. at 466 U. S. 689. In particular,"a court Page 477 U. S. 186 must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"Ibid., quoting Michel v. Louisiana, 350 U. S. 91, 350 U. S. 101 (1955). In this case, there are several reasons why counsel reasonably could have chosen to rely on a simple plea for mercy from petitioner himself. Any attempt to portray petitioner as a nonviolent man would have opened the door for the State to rebut with evidence of petitioner's prior convictions. This evidence had not previously been admitted in evidence, and trial counsel reasonably could have viewed it as particularly damaging. The head of the Public Defenders Office testified at the habeas corpus hearing that petitioner "had been in and out of jails and prisons for most of his adult life. . . ." Tr. of Habeas Corpus Proceedings 209. Petitioner had, for example, previously been convicted of assault with intent to commit rape. Darden v. State, 218 So. 2d 485 (Fla.App.1969). In addition, if defense counsel had attempted to offer testimony that petitioner was incapable of committing the crimes at issue here, the State could have responded with a psychiatric report that indicated that petitioner"very well could have committed the crime; that he was, as I recall his [the psychiatrist's] term, sociopathic-type personality; that he would act entirely on impulse, with no premeditation from the standpoint of planning. But that, when a situation arose, the decision would be made simultaneously to commit the act."Supp. App. 76 (testimony of Mr. Goodwill). For that reason, after consultation with petitioner, defense counsel rejected use of the psychiatric testimony. Tr. 886. Similarly, if defense counsel had attempted to put on evidence that petitioner was a family man, they would have been faced with his admission at trial that, although still married, he was spending the weekend furlough with a girlfriend. In sum, petitioner has not "overcome the presumption that, under the circumstances, the challenged action might be considered Page 477 U. S. 187 sound trial strategy.'" 466 U.S. at 466 U. S. 689, quoting Michel v. Louisiana, supra, at 350 U. S. 101. Petitioner has failed to satisfy the first part of the Strickland test, that his trial counsels' performance fell below an objective standard of reasonableness. We agree with both the District Court and the Court of Appeals that petitioner was not deprived of the effective assistance of counsel. 699 F.2d at 1037.VIThe judgment of the Court of Appeals is affirmed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtDarden v. Wainwright, 477 U.S. 168 (1986)Darden v. WainwrightNo 85-5319Argued January 13, 1986Decided June 23, 1986477 U.S. 168SyllabusAfter a jury trial in a Florida court, petitioner was found guilty of murder, robbery, and assault with intent to kill. Pursuant to Florida's capital sentencing statute, the same jury heard further testimony and argument, and made a nonbinding recommendation that the death penalty be imposed. The trial judge followed that recommendation, and the Florida Supreme Court affirmed the conviction and the sentence, rejecting petitioner's contention that the prosecution's closing argument during the guilt phase of the trial rendered the trial fundamentally unfair and deprived the sentencing determination of the reliability required by the Eighth Amendment. The court also rejected petitioner's contention that the trial court erred in excluding a member of the venire for cause on the basis of his affirmative response to the judge's question during voir dire"Do you have any moral or religious, conscientious moral or religious principles in opposition to the death penalty so strong that you would be unable without violating your own principles to vote to recommend a death penalty regardless of the facts?"In subsequent federal habeas corpus proceedings, petitioner raised the same claims, as well as the additional claim that he had been denied effective assistance of counsel at the sentencing phase of his trial. The District Court denied relief, and the Court of Appeals ultimately affirmed the District Court's judgment in all of its aspects.Held:The record of the jury voir dire, viewed in its entirety, shows that the trial court's decision to exclude the juror involved here was proper. Wainwright v. Witt, 469 U. S. 412, held that the proper test is whether a juror's views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Petitioner's argument on this issue rested solely on the wording of the question (quoted above) that the trial court asked the juror before excluding him. However, a proper determination of the issue requires examination of the context surrounding the juror's exclusion. The record shows that, prior to individual questioning, the trial court told the entire venire that they would be questioned on this point, and that the juror in question was present while the court repeatedly Page 477 U. S. 169 stated the correct standard when questioning other individual members of the panel. Pp. 477 U. S. 175-178.2. The record also supports the rejection of petitioner's contention as to the prosecution's closing argument. The prosecution's argument included improper remarks that indicated that petitioner was on weekend furlough from an earlier prison sentence when the crime involved here occurred; implied that the death penalty would be the only guarantee against a future similar act; referred to petitioner as an "animal"; and reflected an emotional reaction to the case. However, the relevant question is whether the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Viewed under this standard, the prosecution's comments did not deprive petitioner of a fair trial. The comments did not manipulate or misstate the evidence, or implicate other specific rights of the accused, and much of their objectionable content was responsive to the opening summation of the defense (available under a state procedural rule). Moreover, defense counsel were able to use their final rebuttal argument to turn much of the prosecution's closing argument against it. Pp. 477 U. S. 178-183.3. With respect to the claim of ineffective assistance of counsel at the sentencing phase of the trial, petitioner failed to satisfy the first part of the two-part test set forth in Strickland v. Washington, 466 U. S. 668, that his trial counsels' performance fell below an objective standard of reasonableness. There is no merit to petitioner's contention that trial counsel devoted only the time between the close of the guilt phase of trial and the start of the penalty phase -- approximately one-half hour -- to prepare the case in mitigation. The record indicates that a great deal of time and effort went into the defense of this case; a significant portion of that time was devoted to preparation for sentencing. Moreover, a defendant must overcome the presumption that, under the circumstances, the challenged action of counsel might be considered sound trial strategy. Petitioner did not overcome that presumption here. The record shows several reasons why counsel reasonably could have chosen to rely on a simple plea for mercy from petitioner himself, rather than to attempt to introduce mitigating evidence. 477 U. S. 184-187.767 F.2d 752, affirmed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p, 477 U. S. 187. BRENNAN, J., filed a dissenting opinion, post, p. 477 U. S. 188. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 477 U. S. 188. Page 477 U. S. 170

1958_326

MR. JUSTICE BRENNAN announced the judgment of the Court, and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS join.This case is here on writ of certiorari, 358 U.S. 892, to review petitioner's suspension from the practice of law for one year, ordered by the Supreme Court of the Territory of Hawaii, 41 Haw. 403, and affirmed on appeal by the Court of Appeals for the Ninth Circuit, 260 F.2d 189. [Footnote 1]Petitioner has been a member of the Territorial Bar in Hawaii since 1941. For many months beginning in late 1952, she participated, in the United States District Court at Honolulu, as one of the defense counsel in the trial of an indictment against a number of defendants for conspiracy under the Smith Act, 18 U.S.C. § 2385. The trial was before Federal District Judge Jon Wiig and a jury. United States v. Fujimoto, 107 F. Supp. 865. Both disciplinary charges against petitioner had to do with the Smith Act trial. One charge related to a speech she made about six weeks after the trial began. The speech was made on the Island of Hawaii at Honokaa, a village some 182 miles from Honolulu, Oahu, on a Sunday morning. The other charge related to interviews she had with one of the jurors after the trial concluded.The Bar Association of Hawaii preferred the charges, [Footnote 2] which were referred by the Territorial Supreme Court to the Association's Legal Ethics Committee for investigation. The prosecutor who represented the Government at the Smith Act trial conducted the investigation and presented the evidence before the Committee. The Committee submitted the record and is findings to the Territorial Supreme Court. Because the suspension seems to us to depend on it, see pp. 360 U. S. 637-638, infra, we deal first with the charge relating to the speech. The gist of the Committee's findings was that the petitioner's speech reflected adversely upon Judge Wiig's impartiality and fairness in Page 360 U. S. 625 the conduct of the Smith Act trial and impugned his judicial integrity. The Committee concluded that petitioner,"in imputing to the judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts, and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association, [Footnote 3] and Page 360 U. S. 626 should be disciplined for the same."The Territorial Supreme Court held that". . . she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and, by direct statement and implication, impugned the integrity of the judge presiding therein . . . , and thus tended to also create disrespect for the courts of justice and judicial officers generally. . . . She has thus committed what this court considers gross misconduct."41 Haw. at 422-423.We think that our review may be limited to the narrow question whether the facts adduced are capable of supporting the findings that the petitioner's speech impugned Judge Wiig's impartiality and fairness in conducting the Smith Act trial, and thus reflected upon his integrity in the dispensation of justice in that case. We deal with the Court's findings, not with "misconduct" in the abstract. Although the opinions in the Court of Appeals and the argument before us have tended in varying degrees to treat the petitioner's suspension as discipline imposed for obstructing or attempting to obstruct the administration of justice in a way to embarrass or influence the tribunal trying the case, such was neither the charge nor the finding or professional misconduct upon which the suspension was based. Since no obstruction or attempt at obstruction of the trial was charged, and since it is clear to us that the finding upon which the suspension rests is not supportable by the evidence adduced, we have no occasion Page 360 U. S. 627 to consider the applicability of Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331; or Craig v. Harney, 331 U. S. 367, which have been extensively discussed in the briefs. We do not reach or intimate any conclusion on the constitutional issues presented.Petitioner's clients included labor unions, among them the International Longshoremen's and Warehousemen's Union. Some of the defendants in the Smith Act trial were officers and members of that union, and their defense was being supported by the union. The meeting at Honokaa was sponsored by the ILWU, and was attended in large part by its members. The petitioner spoke extemporaneously, and no transcript or recording was made of her speech. Precisely what she did say is a matter of dispute. Neither the Territorial Supreme Court nor the Court of Appeals saw the witness, but both courts, on reading the record, resolved matters of evidentiary conflict in the fashion least favorable to the petitioner. For the purposes of our review here, we may do the same. The version of the petitioner's speech principally relied upon by the Court of Appeals, 260 F.2d at 197-198, is derived from notes made by a newspaper reporter, Matsuoka, who attended the meeting and heard what the petitioner said. These were not Matsuoka's original notes -- the originals were lost -- but an expanded version prepared by him at the direction of his newspaper superiors after interest in the speech was aroused by Matsuoka's account of it in the newspaper. [Footnote 4] We Page 360 U. S. 628 set forth the notes in full as an 360 U.S. 622app|>Appendix to this opinion, and summarize them here, as an account of what petitioner said. The summary will illumine the basis of our conclusion that the finding that the petitioner's speech impugned the integrity of Judge Wiig or reflected upon his impartiality and fairness in presiding at the Smith Act trial is without support. The factfinding below does not remove this Court's duty of examining the evidence to see whether it furnishes a rational basis for the characterization put on it by the lower courts. See Fiske v. Kansas, 274 U. S. 380. Speculation cannot take over where the proofs fail. We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government's manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial.Petitioner said that the Honolulu trial was really an effort to get at the ILWU. She wanted to tell about some "rather shocking and horrible things that go on at the trial." The defendants, she said, were being tried for reading books written before they were born. Jack Hall, one of the defendants, she said, was on trial because he had read the Communist Manifesto. She spoke of the nature of criminal conspiracy prosecutions, as she saw Page 360 U. S. 629 them, and charged that, when the Government did not have enough evidence, "it lumps a number together and says they agreed to do something." "Conspiracy means to charge a lot of people for agreeing to do something you have never done." She generally attacked the FBI, saying they spent too much time investigating people's minds, and next dwelt further on the remoteness of the evidence in the case and the extreme youth of some of the defendants at the time to which the evidence directly related. She said"no one has a memory that good, yet they use this kind of testimony. Why? Because they will do anything and everything necessary to convict."Government propaganda carried on for 10 years before the jurors entered the box, she charged, made it "enough to say a person is a communist to cook his goose." She charged that some of the witnesses had given prior inconsistent testimony, but that the Government went ahead and had them "say things in order to convict." "Witnesses testify what Government tells them to." The Government, she claimed, read in evidence for two days Communist books because one of the defendants had once seen them in a duffel bag. Unless people informed on such defendants, the FBI would try to make them lose their jobs. "There's no such thing as a fair trial in a Smith Act case. All rules of evidence have to be scrapped or the Government can't make a case." She related how, in another case (in the territorial courts), she was not allowed to put in evidence of a hearsay nature to exonerate a criminal defendant she was representing, [Footnote 5] but, in Page 360 U. S. 630 the present case,"a federal judge sitting on a federal bench permits Crouch [a witness] to testify about 27 years ago, what was said then . . . ; here they permit a witness to tell what was said when a defendant was five years old."She then declared, "There's no fair trial in the case. They just make up the rules as they go along." She gave the example of the New York Smith Act trial before Judge Medina, see Dennis v. United States, 341 U. S. 494, where she claimed"The Government can't make a case if it tells just what they did, so they widened the rules and tell what other people did years ago, including everything including the kitchen sink."She declared,"Unless we stop the Smith trial in its tracks here, there will be a new crime. People will be charged with knowing what is included in books -- ideas."Petitioner said in conclusion that, if things went on, the freedom to read and freedom of thought and action would be subverted. She urged her auditors to go out and explain what a vicious thing the Smith Act was.The specific utterances in the speech that the Legal Ethics Committee and the Supreme Court found as furnishing the basis for the findings that petitioner impugned Judge Wiig's integrity were the references (which we have quoted in full above) to "horrible and shocking" things at the trial; the impossibility of a fair trial; the necessity, if the Government's case were to be proved, of scrapping the rules of evidence; and the creation of new crimes unless the trial were stopped at once. We examine these points in particular, though, of course, we must do so in the context of the whole speech. In so doing, we accept as obviously correct the ruling of the courts below that petitioner's remarks were not a mere generalized discourse Page 360 U. S. 631 on Smith Act prosecutions, but included particular references to the case going on in Honolulu.I. We start with the proposition that lawyers are free to criticize the state of the law. Many lawyers say that the rules of evidence relative to the admission of statements by those alleged to be co-conspirators are overbroad or otherwise unfair and unwise; [Footnote 6] that there are dangers to defendants, of a sort against which trial judges cannot protect them, in the trial of numerous persons jointly for conspiracy; [Footnote 7] and that a Smith Act trial is apt to become Page 360 U. S. 632 a trial of ideas. [Footnote 8] Others disagree. But all are free to express their views of these matters, and no one would say that this sort of criticism constituted an improper attack on the judges who enforced such rules and who presided at the trials. This is so even though the existence of questionable rules of law might be said in a sense to produce unfair trials. [Footnote 9] Such criticism simply cannot be equated with an attack on the motivation or the integrity or the competence of the judges. And surely permissible criticism may as well be made to a lay audience as to a professional; oftentimes the law is modified through popular criticism; [Footnote 10] Bentham's strictures on the state of the common law and Dickens' novels come to mind. [Footnote 11] And, needless to say, a lawyer may criticize the law enforcement agencies of the Government, and the prosecution, even to the extent of suggesting wrongdoing on their part, without by that token impugning the judiciary. Simply to charge, for example, the prosecution, with the knowing use of perjured testimony in a case, is Page 360 U. S. 633 not to imply in the slightest any complicity by the judge in such actions. To charge that the Government makes overmuch use of the conspiracy form of criminal prosecution, and this to bolster weak cases, is not to suggest any unseemly complicity by the judiciary in the practice. [Footnote 12]In large part, if not entirely, Matsuoka's notes of petitioner's speech do not reveal her as doing more than this. She dwelt extensively on the nature of Smith Act trials and on conspiracy prosecutions. The Honolulu trial, to be sure, was the setting for her remarks, but they do not indicate more than that she referred to it as a typical, present example of the evils thought to be attendant on such trials. The specific statements found censurable (without which the bringing of the charge would have been inconceivable) are not in the least inconsistent with this, even though they must be taken to relate to the trial in progress. These specific statements are hardly damning by themselves, and clearly call for the light examination in context may give them; so examined, they do not furnish any basis for a finding of professional misconduct. She said that there were "horrible" and "shocking" things going on at the trial, but this remark, introductory to the speech, of course was in the context of what she further said about conspiracy prosecutions, Smith Act trials, and the prosecution's conduct. Petitioner's statement that a fair trial was impossible in context obviously related to the state of law and to the conduct of the prosecution and the FBI, not to anything that Judge Wiig personally was doing or failing to do. It occurred immediately after an account of the FBI's alleged pressuring of witnesses. The same seems clearly the case with the remark about the necessity of scrapping Page 360 U. S. 634 the rules of evidence. [Footnote 13] The statement that, if the trial went on to a conviction, new crimes -- those of thought or ideas -- would be created [Footnote 14] could hardly be thought to reflect on the trial judge's integrity, no matter how divorced from context it be considered. How any of this reflected on Judge Wiig, except insofar as he might be thought to lose stature because he was a judge in a legal system said to be full of imperfections, is not shown. To say that "the law is an ass, a idiot" is not to impugn the character of those who must administer it. To say that prosecutors are corrupt is not to impugn the character of judges who might be unaware of it, or be able to find no method under the law of restraining them. Judge Wiig was not, by name, mentioned in the speech, and there was virtually none of petitioner's complaints that was phrased in terms of what "the judge" was doing. For aught that appears from petitioner's speech, Judge Wiig might have been totally out of sympathy, as a personal matter, with the Smith Act, the practice of trying criminal offenses on a conspiracy basis, and the rules of evidence in conspiracy trials, but felt bound to apply the law as laid down by higher courts. [Footnote 15] Page 360 U. S. 635Even if some passages can be found which go so far as to imply that Judge Wiig was taking an erroneous view of the law -- perhaps the comparison made between the case in the Territorial Courts where a hearsay statement was excluded and the admission of evidence in the Smith Act case might be of this nature, and much is made of it here though the Committee and the courts below made nothing of it -- we think there was still nothing in the speech warranting the findings. If Judge Wiig was said to be wrong on his law, it is no matter; appellate courts and law reviews say that of judges daily, and it imputes no disgrace. Dissenting opinions in our reports are apt to make petitioner's speech look like tame stuff indeed. Petitioner did not say Judge Wiig was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country. See In re Ades, 6 F. Supp. 467, 481. It may be said that some of the audience would infer improper collusion with the prosecution from a charge of error prejudicing the defense. Some lay persons may not be able to imagine legal error without venality or collusion, but it will not do to set our standards by their reactions. We can indulge in no involved speculation as to petitioner's guilt by reason of the imaginations of others.But it is said that while it may be proper for an attorney to say the law is unfair or that judges are in error as a general matter, it is wrong for counsel of record to say so during a pending case. The verbalization is that it is impermissible to litigate by day and castigate by night. See 260 F.2d at 202. This line seems central to the Bar Association's argument, as it appears to have been to the Page 360 U. S. 636 reasoning of the court below, [Footnote 16] and the dissent here is much informed by it, but to us it seems totally to ignore the charges made and the findings. The findings were that petitioner impugned the integrity of Judge Wiig and made an improper attack on his administration of justice in the Honolulu trial. A lawyer does not acquire any license to do these things by not being presently engaged in a case. They are equally serious whether he currently in engaged in litigation before the judge or not. We can conceive no ground whereby the pendency of litigation might be thought to make an attorney's out-of-court remarks more censurable, other than that they might tend to obstruct the administration of justice. Remarks made during the course of a trial might tend to such obstruction where remarks made afterwards would not. But this distinction is foreign to this case, because the charges and findings in no way turn on an allegation of obstruction of justice or of an attempt to obstruct justice in a pending case. To the charges made and found, it is irrelevant whether the Smith Act case was still pending. Judge Wiig remained equally protected from statements impugning him, and petitioner remained equally free to make critical statements that did not cross that line. We find that hers cannot be said to have done so. Accordingly, the suspension order, based on the charge relating to the speech, cannot stand.II. Petitioner was also charged by the Committee, and found by the Supreme Court, to have misconducted herself by interviewing a juror shortly after the completion Page 360 U. S. 637 of the Smith Act trial. The juror had become mentally unsettled, in an obvious fashion, very shortly after the rendition of the verdict and apparently as a result of his participation on the jury. It was at this point that petitioner, having been first requested by his sister, several times interviewed him, and spoke with members of his family. The Supreme Court recognized that it had been common practice for attorneys in the Territory to interrogate jurors after the rendition of their verdicts and their discharges. Nevertheless, it found her action professional misconduct. The versions of the witnesses as to exactly what transpired at the interviews varied considerably, but the court made no findings of fact on the matter, and it is difficult to grasp the basis on which it singled petitioner's juror interviews out for censure against the pattern of a common practice of such interviews in the Territory. [Footnote 17] While there is clearly some delicacy involved in approaching a juror who has become mentally unsettled, evidence that a juror was incompetent at the time of the rendition of the verdict might be admissible to impeach a verdict, where evidence of the jury's mental and reasoning processes is not. While the interviews Page 360 U. S. 638 were undertaken under unusual circumstances, it is difficult to say whether the circumstances furnish more or less justification than is present in the average juror interview -- which we do not read the Supreme Court's opinion as holding censurable, except as to the future. [Footnote 18] The Legal Ethics Committee had charged petitioner with concealment of facts in her affidavit as to the juror interview filed with Judge Wiig in support of her motion for a new trial for the Smith Act defendants, but we do not find anything in the Supreme Court's opinion agreeing with these charges.But we need not explore further what the basis was for the Territorial Supreme Court's finding on this charge. As to it, the court said that the suspension order it rendered on the charge relating to the speech would suffice. [Footnote 19] The Court of Appeals was of opinion that, if the charge as to the speech were insupportable, in the present posture of the case, the suspension could not stand, 260 F.2d at 202, and we agree. We cannot read the Supreme Court's opinion as imposing any penalty solely by reason of the interview with the juror. Accordingly, we do not believe it would be appropriate in the posture of the case for us finally to adjudicate the validity of the finding of misconduct by reason of the interviews.III. The Court of Appeals expressed doubt as to its jurisdiction to hear the appeal from the Territorial Supreme Court, and respondent here urges that that court Page 360 U. S. 639 was without jurisdiction. Since our jurisdiction to hear the case on the merits must stand or fall with that of the Court of Appeals, we examine the objections. They are without merit. The Court of Appeals for the Ninth Circuit has jurisdiction of appeals from final judgments of the Supreme Court of the Territory of Hawaii, pursuant to 28 U.S.C. § 1293, in "civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs." [Footnote 20] The suspension order would have the effect of removing petitioner from the practice of law for at least one year, and she filed an uncontroverted affidavit that her annual net income from the practice of law had been for years, and would continue foreseeably, in excess of $5,000. [Footnote 21] It is insisted that petitioner's right cannot be reduced to monetary terms, because it is "priceless," and so it is, in a manner of speaking; but, besides the professional aspects of her status, her continuance in a specific form of gainful employment is in issue, See Bradley v. Fisher, 13 Wall. 335, 80 U. S. 355, and hence the jurisdictional amount was present.Finally, we find no inhibition as to the scope of review we have given the judgment of the Territorial Court. The Territorial Court is one created under the sovereignty of the National Government, O'Donoghue v. United States, 289 U. S. 516, 289 U. S. 535, and hence this Court (once the Page 360 U. S. 640 jurisdictional Act is satisfied) is not limited as it would be in reviewing the judgment of the highest court of a State. Of course, this Court and the Courts of Appeals must give the Territorial Courts freedom in developing principles of local law, and in interpreting local legislation. See Bonet v. Texas Co., 308 U. S. 463; DeCastro v. Board of Commissioners, 322 U. S. 451, 322 U. S. 454-458. But it hardly needs elaboration to make it clear that the question of the total insufficiency of the evidence to sustain a serious charge of professional misconduct, against a backdrop of the claimed constitutional rights of an attorney to speak as freely as another citizen, is not one which can be subsumed under the headings of local practice, customs or law.Reversed

U.S. Supreme CourtIn re Sawyer, 360 U.S. 622 (1959)In re SawyerNo. 326Argued May 19-20, 1959Decided June 29, 1959360 U.S. 622SyllabusWhile actively participating as one of the defense counsel in a protracted and highly publicized trial in a Federal District Court in Hawaii of several defendants for conspiracy under the Smith Act, petitioner appeared with one of the defendants at a public meeting and made a speech which led to charges that she had impugned the impartiality and fairness of the presiding judge in conducting the trial and had thus reflected upon his integrity in dispensing justice in the case. These charges were preferred by the Bar Association of Hawaii before the Territorial Supreme Court; that Court referred the charges to the Ethics Committee of the Bar Association, which held a hearing, and found the charges sustained. The Territorial Supreme Court, upon review of the record, also sustained the charges, and ordered that petitioner be suspended from the practice of law for one year. The Court of Appeals for the Ninth Circuit affirmed.Held: the record does not support the charge and the findings growing out of petitioner's speech, and the judgment is reversed. Pp. 360 U. S. 623-640, 360 U. S. 646-647.260 F.2d 189 reversed.For judgment of the Court and opinion of MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS, see pp. 360 U. S. 623-640.For appendix to the opinion of MR. JUSTICE BRENNAN, see p. 360 U. S. 640.For concurring opinion of MR. JUSTICE BLACK, see p. 360 U. S. 646.For opinion of MR. JUSTICE STEWART, concurring in the result, see p. 360 U. S. 646.For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE WHITTAKER, see p. 360 U. S. 647.For dissenting opinion of MR. JUSTICE CLARK, see p. 360 U. S. 669. Page 360 U. S. 623

2002_01-706

(d) Nor does the FBSA's statutory scheme implicitly pre-empt petitioner's claims. The Act does not require the Coast Guard to promulgate comprehensive regulations covering every aspect of recreational boat safety and design; nor must the Coast Guard certify the acceptability of every recreational boat subject to its jurisdiction. Ray v. Atlantic Richfield Co., 435 U. S. 151, and United States v. Locke, 529 U. S. 89, distinguished. Even if the FBSA could be interpreted as expressly occupying the field of safety regulation of recreational boats with respect to state positive laws and regulations, it does not convey a clear and manifest intent to completely occupy the field so as to foreclose state common-law remedies. This Court's conclusion that the Act's express pre-emption clause does not cover common-law claims suggests the opposite intent. An unembellished statement in a House Report on the Act does not establish an intent to pre-empt common-law remedies. And the FBSA's goal of fostering uniformity in manufacturing regulations, on which respondent ultimately relies for its pre-emption argument, is an important but not unyielding interest, as is demonstrated by the Coast Guard's early grants of broad exemptions for state regulations and by its position in this litigation. Pp. 68-70.197 Ill. 2d 112, 757 N. E. 2d 75, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Leslie A. Brueckner argued the cause for petitioner.With her on the briefs were Arthur H. Bryant, Joseph A. Power, Jr., and Todd A. Smith.Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Katsas, Deputy Solicitor General Kneedler, Douglas N. Letter, Michael E. Robinson, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, Peter J. Plocki, Robert F. Duncan, and G. Alex Weller.Stephen M. Shapiro argued the cause for respondent.With him on the brief were Steffen N. Johnson, Michael W McConnell, Kenneth S. Geller, Timothy S. Bishop, and Daniel J. Connolly. **Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Charles W Hatfield, and by the54JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether a state common-law tort action seeking damages from the manufacturer of an outboard motor is pre-empted either by the enactment of the Federal Boat Safety Act of 1971, 46 U. S. C. §§ 4301-4311 (FBSA, 1971 Act, or Act), or by the decision of the Coast Guard in 1990 not to promulgate a regulation requiring propeller guards on motorboats.IOn July 10, 1995, petitioner's wife, Jeanne Sprietsma, died as a result of a boating accident on an inland lake that spans the Kentucky-Tennessee border. She was riding in an 18foot ski boat equipped with a 115-horsepower outboard motor manufactured by respondent, Mercury Marine, which is a division of the Brunswick Corporation (Brunswick). Apparently when the boat turned, she fell overboard and was struck by the propeller, suffering fatal injuries.Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Bill Lockyer of California, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia Madrid of New Mexico, Roy Cooper of North Carolina, Hardy Myers of Oregon, Mark L. Shurtleff of Utah, Christine O. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; and for the Association of Trial Lawyers of America by Ross Diamond III and Jeffrey Robert White.Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States of America by John G. Roberts, Jr., Catherine E. Stetson, and Robin S. Conrad; for the Maritime Law Association of the United States by Joshua S. Force, Raymond P. Hayden, William R. Dorsey III, and James Patrick Cooney; for the National Association of Manufacturers et al. by Kenneth W Starr, Robert R. Gasaway, Richard A. Cordray, Ashley C. Parrish, Jan S. Amundson, and Quentin Riegel; and for the Product Liability Advisory Council, Inc., by Alan Untereiner.55Petitioner filed a nine-count complaint in an Illinois court 1 seeking damages from Brunswick on state-law theories. Each count alleged that Brunswick had manufactured an unreasonably dangerous product because, among other things, the motor was not protected by a propeller guard.2 The trial court granted respondent's motion to dismiss, and the intermediate appellate court affirmed on the ground that the action was expressly pre-empted by the FBSA. 312 Ill. App. 3d 1040, 729 N. E. 2d 45 (2000). Relying on our intervening decision in Geier v. American Honda Motor Co., 529 U. S. 861 (2000), the Illinois Supreme Court rejected the appellate court's express pre-emption rationale, but affirmed on implied pre-emption grounds. 197 Ill. 2d 112, 757 N. E. 2d 75 (2001). The court's decision added to a split of authority on this precise issue arising from lawsuits against, among a few others, this particular respondent and its corporate subsidiaries.3We granted certiorari, 534 U. S. 1112 (2002), to decide whether the FBSA pre-empts state common-law claims of1 The complaint alleges that the Sprietsmas and the owners of the boat were residents of Illinois and that the boat had been purchased in Illinois. App. 101.2Id., at 100-122.3 Compare Lewis v. Brunswick Corp., 107 F.3d 1494 (CAll) (finding implied pre-emption under the FBSA), cert. granted, 522 U. S. 978 (1997), cert. dismissed, 523 U. S. 1113 (1998); Carstensen v. Brunswick Corp., 49 F. 3d 430 (CA8) (finding express pre-emption under the FBSA), cert. denied, 516 U. S. 866 (1995); and Ryan v. Brunswick Corp., 454 Mich. 20, 557 N. W. 2d 541 (1997) (finding express pre-emption under the FBSA), with Moore v. Brunswick Bowling & Billiards Corp., 889 S. W. 2d 246 (Tex.) (holding that federal law did not pre-empt state law in this context), cert. denied sub nom. Vivian Industrial Plastics, Inc. v. Moore, 513 U. S. 1057 (1994). See also Lady v. Neal Glaser Marine, Inc., 228 F.3d 598 (CA5 2000) (holding that common-law claims based on the manufacturer's failure to provide a propeller guard were impliedly pre-empted by the FBSA; Outboard Marine, the successor to Neal Glaser Marine, declared bankruptcy shortly after the petition for certiorari was filed), cert. denied sub nom. Lady v. Outboard Marine Corp., 532 U. S. 941 (2001).56this character.4 Because the pre-emption defense raises a threshold issue, we have no occasion to consider the merits of petitioner's claims, or even whether the claims are viable as a matter of Illinois law. We must, however, evaluate three distinct theories that may support the pre-emption defense: (1) that the 1971 Act expressly pre-empts common-law claims; (2) that the Coast Guard's decision not to regulate propeller guards pre-empts the claims; and (3) that the potential conflict between diverse state rules and the federal interest in a uniform system of regulation impliedly preempts such claims. Before considering each of these theories, we review the history of federal regulation in this area.IIThe 1971 Act is the most recent and most comprehensive of the several statutes that Congress has enacted to improve the safe operation of recreational boats. A 1910 enactment required three classes of motorboats to carry certain lights, sound signals, life preservers, and fire extinguishers. Act of June 9, 1910, 36 Stat. 462. In 1918, Congress passed a law that required the numbering of motorboats over 16 feet long, Act of June 7, 1918, ch. 93, 40 Stat. 602, and in 1940, it reenacted the above requirements, provided a system of federal inspection, and authorized penalties for the reckless operation of motorboats, Act of Apr. 25, 1940, ch. 155, 54 Stat. 163. In 1958, Congress enacted additional numbering requirements to be administered by the States and directed the States to compile and transmit boating accident statistics to the Secretary of the Treasury. Federal Boating Act of 1958, 72 Stat. 1754. Section 9 of the 1958 Act expressed a policy of encouraging uniformity of boating laws insofar as practicable.The accident statistics compiled by the States presumably were instrumental in persuading the 1971 Congress that ad-4 Brunswick has asserted that federal maritime law governs this case.Because this argument was not raised below, it is waived.57ditional federal legislation was necessary.5 In its statement of purposes, the FBSA recites that it was enacted "to improve boating safety," to authorize "the establishment of national construction and performance standards for boats and associated equipment," and to encourage greater "uniformity of boating laws and regulations as among the several States and the Federal Government." Pub. L. 92-75, § 2, 85 Stat. 213-214. Three of the provisions implementing these goals are particularly relevant to this case.Section 5 of the FBSA, as amended and codified in 46 U. S. C. § 4302, authorizes the Secretary of Transportation to issue regulations establishing "minimum safety standards for recreational vessels and associated equipment," and requiring the installation or use of such equipment.6 The Secretary has delegated this authority to the Coast Guard. See 49 CFR § 1.46(n)(1) (1997). Before exercising that authority,5 The Senate Report on the 1971 Act observed that approximately 40 million Americans engaged in recreational boating activities every year, and that nearly 7,000 persons had died in boating accidents during the preceding 5-year period. S. Rep. No. 92-248, pp. 6-7 (1971) (hereinafter S. Rep.). The Report added: "It seems apparent that the annual loss of life is of sufficiently alarming proportion that the Federal Government should require products involved to be built to standards of safety commensurate with the risks associated with their use. Similar federal legislation exists with regard to other products, including aircraft and motor vehicles. Also, safety standards and requirements for certain categories of larger commercial vessels have existed for many years." Id., at 13.6 Title 46 U. S. C. § 4302 provides:"(a) The Secretary may prescribe regulations-"(1) establishing minimum safety standards for recreational vessels and associated equipment, and establishing procedures and tests required to measure conformance with those standards, with each standard-"(A) meeting the need for recreational vessel safety; and"(E) being stated, insofar as practicable, in terms of performance;"(2) requiring the installation, carrying, or use of associated equipment ... on recreational vessels and classes of recreational vessels subject to this chapter, and prohibiting the installation, carrying, or use of associated equipment that does not conform with safety standards established under this section .... "58the Coast Guard must consider certain factors, such as the extent to which the proposed regulation will contribute to boating safety, and must consult with a special National Boating Safety Advisory Council appointed pursuant to § 33 of the Act, 46 U. S. C. § 13110.7 The Advisory Council consists of 21 members, 7 representatives from each of three different groups: (1) "State officials responsible for State boating safety programs," (2) boat and equipment manufacturers, and (3) "national recreational boating organizations and ... the general public." § 13110(b). The Coast Guard may also issue exemptions from its regulations if it determines that boating safety "will not be adversely affected." §4305.Section 10 of the Act, as codified in 46 U. S. C. § 4306, sets forth the Act's pre-emption clause and thus provides the basis for respondent's express pre-emption argument. It states in full:"Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce7 "In prescribing regulations under this section, the Secretary shall, among other things-"(1) consider the need for and the extent to which the regulations will contribute to recreational vessel safety;"(2) consider relevant available recreational vessel safety standards, statistics, and data, including public and private research, development, testing, and evaluation;"(3) not compel substantial alteration of a recreational vessel or item of associated equipment that is in existence, or the construction or manufacture of which is begun before the effective date of the regulation, but subject to that limitation may require compliance or performance, to avoid a substantial risk of personal injury to the public, that the Secretary considers appropriate in relation to the degree of hazard that the compliance will correct; and"(4) consult with the National Boating Safety Advisory Council established under section 13110 of this title about the considerations referred to in clauses (1)-(3) of this subsection."59a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title."Section 40, 46 U. S. C. § 4311, sets forth the penalties that may be assessed against persons who violate the Act. At the end of that section, Congress included the following saving clause:"Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law." § 4311(g).Federal Regulation Under the FBSAThe day after the President signed the FBSA into law, the Secretary of Transportation took action that was based on the assumption that § 10 would pre-empt existing state regulation that "is not identical to a regulation prescribed" under § 5 of the Act, even if no such federal regulation had been promulgated. On August 11, 1971, the Secretary issued a statement exempting all then-existing state laws from preemption under the Act. 36 Fed. Reg. 15764-15765. He explained that boating safety would "not be adversely affected by continuing in effect those existing laws and regulations of the various States and political subdivisions" until new federal regulations could be issued. Id., at 15765.One year later, on August 4, 1972, the Coast Guard issued its first regulations under § 5 of the Act. See 37 Fed. Reg. 15777-15785. Those regulations included boat performance and safety standards such as requirements for hull identifi-60cation numbers, maximum capacity and warnings of such capacity, and minimum boat flotation. They did not include any propeller guard requirement. After those federal regulations became effective, the Secretary limited the scope of his original blanket exemption to pre-empt those "State statutes and regulations" that concerned requirements covered by the 1972 regulations. See 38 Fed. Reg. 6914-6915 (1973). Existing state laws that regulated matters not covered by the federal regulations continued to be exempted from preemption. Ibid.In the years since, the Coast Guard has promulgated a host of detailed regulations. Some prescribe the use of specified equipment, such as personal flotation devices and visual distress signals, 33 CFR pts. 175(B), (C) (2001), and certain procedures, such as compliance labeling by manufacturers and prompt accident reporting by operators, pts. 181(B), 173(C). See generally pts. 173-181. Other regulations impose precise standards governing the design and manufacture of boats themselves and of associated equipment, such as electrical and fuel systems, ventilation, and "start-in-gear protection" devices. Pt. 183; cf. Chao v. Mallard Bay Drilling, Inc., 534 U. S. 235, 242 (2002) ("Congress has assigned a broad and important mission to the Coast Guard .... [T]he Coast Guard possesses authority to promulgate and enforce regulations promoting the safety of vessels ... ").Coast Guard Consideration of Propeller Guard Regulation In May 1988, the Coast Guard decided that the number of recreational boating accidents in which persons in the water were struck by propellers merited a special study.8 Acting8 Between 1976 and 1990, the Coast Guard officially reported about 100 propeller-strike injuries in the United States per year. App. in Lewis v. Brunswick, O. T. 1997, No. 97-288, p. 170. A 1992 study by members of the Johns Hopkins University Injury Prevention Center and the Institute for Injury Reduction concluded that, when adjusted for underreporting,61at the request of the Coast Guard, the National Boating Safety Advisory Council appointed a special Propeller Guard Subcommittee. The subcommittee was directed to review "the available data on the prevention of propeller-strike accidents" and to study the "various methods of shrouding propellers to prevent contact with [a] person in the water." App.43.After 18 months of study, the subcommittee recommended that the Coast Guard "should take no regulatory action to require propeller guards." Id., at 40. Its recommendation rested upon findings that, given current technology, feasible propeller guards might prevent penetrating injuries but increase the potential for blunt trauma caused by collision with the guard, which enlarges the boat's underwater profile; feasible models would cause power and speed loss at higher speeds; and it would be "prohibitive[ly]" expensive to retrofit all existing boats with propeller guards because "[n]o simple universal design suitable for all boats and motors in existence" had been proved feasible. Id., at 36-38.The Advisory Council endorsed the subcommittee's recommendation, as did the Coast Guard. In a 1990 letter to the Council, the Chief of the Coast Guard's Office of Navigation Safety and Waterway Services agreed that the available accident data did not support the adoption of a regulation requiring propeller guards on motorboats, but stated that the Coast Guard would continue to review information "regarding development and testing of new propeller guarding devices or other information on the state of the art." Id., at 81. In 1995, 1996, and 1997, the Coast Guard invited public comment on various proposals to reduce the number of injuries involving propeller strikes.In April 2001, the Advisory Council recommended that the Coast Guard develop four specific regulations. See 66 Fed."the true number of propeller injuries and fatalities may be closer to ... 2,000-3,000 per year." Id., at 199.62Reg. 63645, 63647.9 In response, in December 2001, the Coast Guard published a notice of proposed rulemaking addressing one of the recommendations. The proposed rule, if adopted, would require an owner of a nonplaning houseboat for rent to equip her vessel with either a propeller guard or "a combination of three propeller injury avoidance measures." Ibid. The Advisory Council also recommended that the Coast Guard require "manufacturers and importers of new planing vessels 12 feet to 26 feet in length with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods." Ibid. Although the Coast Guard has indicated that this recommendation, along with the Advisory Council's other recommendations, will be addressed in "subsequent regulatory projects," ibid., it has not yet issued any regulation either requiring or prohibiting propeller guards on recreational planing vessels such as the boat involved in this case.IIIBecause the FBSA contains an express pre-emption clause, our "task of statutory construction must in the first instance focus on the plain wording of the clause, which nec-9 "After discussing the alternatives and their cost, the Council recommended that the Coast Guard ... develop four specific regulations:"(1) Require owners of all propeller driven vessels 12 feet in length and longer with propellers aft of the transom to display propeller warning labels and to employ an emergency cut-off switch, where installed;"(2) Require manufacturers and importers of new planing vessels 12 feet to 26 feet in length with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods;"(3) Require manufacturers and importers of new non-planing vessels 12 feet in length and longer with propellers aft of the transom to select and install one of several factory installed propeller injury avoidance methods; and"(4) Require owners of all non-planing rental boats with propellers aft of the transom to install either a jet propulsion system or a propeller guard or all of several propeller injury avoidance measures." 66 Fed. Reg., at 63647.63essarily contains the best evidence of Congress' pre-emptive intent." CSX Transp., Inc. v. Easterwood, 507 U. S. 658, 664 (1993). Here, the express pre-emption clause in § 10 applies to "a [state or local] law or regulation." 46 U. S. C. § 4306. We think that this language is most naturally read as not encompassing common-law claims for two reasons. First, the article "a" before "law or regulation" implies a discreteness-which is embodied in statutes and regulations-that is not present in the common law. Second, because "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), the terms "law" and "regulation" used together in the pre-emption clause indicate that Congress pre-empted only positive enactments. If "law" were read broadly so as to include the common law, it might also be interpreted to include regulations, which would render the express reference to "regulation" in the pre-emption clause superfluous.The Act's saving clause buttresses this conclusion. See Geier v. American Honda Motor Co., 529 U. S., at 867-868. It states that "[c]ompliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law." § 4311(g). As we held in Geier, the "saving clause assumes that there are some significant number of commonlaw liability cases to save [and t]he language of the preemption provision permits a narrow reading that excludes common-law actions." Id., at 868.The saving clause is also relevant for an independent reason. The contrast between its general reference to "liability at common law" and the more specific and detailed description of what is pre-empted by § 10-including the exception for state regulations addressing "uniquely hazardous conditions"-indicates that § 10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation.64Our interpretation of the statute's language does not produce anomalous results. It would have been perfectly rational for Congress not to pre-empt common-law claims, which-unlike most administrative and legislative regulations-necessarily perform an important remedial role in compensating accident victims. Cf. Silkwood v. KerrMcGee Corp., 464 U. S. 238, 251 (1984). Indeed, compensation is the manifest object of the saving clause, which focuses not on state authority to regulate, but on preserving "liability at common law or under State law." In context, this phrase surely refers to private damages remedies.10 We thus agree with the Illinois Supreme Court's conclusion that petitioner's common-law tort claims are not expressly preempted by the FBSA.IVEven if § 10 of the FBSA does not expressly pre-empt state common-law claims, respondent contends that such claims are implicitly pre-empted by the entire statute, and more specifically by the Coast Guard's decision not to regulate propeller guards. Both are viable pre-emption theories:"We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), or when state law is in actual conflict with federal law. We have found implied conflict preemption where it is 'impossible for a private party to comply with both state and federal requirements,' id., at 79, or where 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.10 The FBSA itself imposes civil money penalties payable to the United States, as well as imprisonment for willful violations, 46 U. S. C. § 4311, but does not authorize any private damages remedies for persons injured by noncomplying operators, boats, or equipment.6552, 67 (1941)." Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995).Moreover, Congress' inclusion of an express pre-emption clause "does not bar the ordinary working of conflict preemption principles," Geier, 529 U. S., at 869 (emphasis in original), that find implied pre-emption "where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Freightliner Corp., 514 U. S., at 287 (internal quotation marks and citations omitted). We are not persuaded, however, that the FBSA has any such pre-emptive effect.We first consider, and reject, respondent's reliance on the Coast Guard's decision not to adopt a regulation requiring propeller guards on motorboats. It is quite wrong to view that decision as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation. The decision in 1990 to accept the subcommittee's recommendation to "take no regulatory action," App. 80, left the law applicable to propeller guards exactly the same as it had been before the subcommittee began its investigation. Of course, if a state common-law claim directly conflicted with a federal regulation promulgated under the Act, or if it were impossible to comply with any such regulation without incurring liability under state common law, pre-emption would occur. This, however, is not such a case.Indeed, history teaches us that a Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority pending the adoption of specific federal standards. That was the course the Coast Guard followed in 1971 immediately after the Act was passed, and again when it imposed its first regulations in 1972 and 1973. The Coast Guard has never taken the position that the litigation of state common-law66claims relating to an area not yet subject to federal regulation would conflict with "the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67 (1941).The Illinois Supreme Court concluded "that the Coast Guard's failure to promulgate a propeller guard requirement here equates to a ruling that no such regulation is appropriate pursuant to the policy of the FBSA." 197 Ill. 2d, at 128, 757 N. E. 2d, at 85. With regard to policies defined by Congress, we have recognized that "a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decision to regulate." Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Servo Comm'n, 461 U. S. 375, 384 (1983); see also Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767, 774 (1947) (state law is pre-empted "where failure of the federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute"). In this instance, however, the Illinois Supreme Court's conclusion does not accurately reflect the Coast Guard's entire explanation for its decision:"The regulatory process is very structured and stringent regarding justification. Available propeller guard accident data do not support imposition of a regulation requiring propeller guards on motorboats. Regulatory action is also limited by the many questions about whether a universally acceptable propeller guard is available or technically feasible in all modes of boat operation. Additionally, the question of retrofitting millions of boats would certainly be a major economic consideration." App. 80.This statement reveals only a judgment that the available data did not meet the FBSA's "stringent" criteria for federal67regulation. The Coast Guard did not take the further step of deciding that, as a matter of policy, the States and their political subdivisions should not impose some version of propeller guard regulation, and it most definitely did not reject propeller guards as unsafe.ll The Coast Guard's apparent focus was on the lack of any "universally acceptable" propeller guard for "all modes of boat operation." But nothing in its official explanation would be inconsistent with a tort verdict premised on a jury's finding that some type of propeller guard should have been installed on this particular kind of boat equipped with respondent's particular type of motor. Thus, although the Coast Guard's decision not to require propeller guards was undoubtedly intentional and carefully considered, it does not convey an "authoritative" message of a federal policy against propeller guards. And nothing in the Coast Guard's recent regulatory activities alters this conclusion.The Coast Guard's decision not to impose a propeller guard requirement presents a sharp contrast to the decision of the Secretary of Transportation that was given pre-emptive effect in Geier v. American Honda Motor Co., 529 U. S. 861 (2000). As the Solicitor General had argued in that case, the promulgation of Federal Motor Vehicle Safety Standard (FMVSS) 208 embodied an affirmative "policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets rather than one particular system in every car." Id., at 881. In finding pre-emption, we expressly placed "weight upon the DOT's interpretation of FMVSS 208's objectives and its conclusion, as set forth in the Government's brief, that a tort suit such as this one would'" 'stan[d] as an obstacle to the accomplish-11 Indeed, in response to the Propeller Guard Subcommittee's recommendation in favor of "educational and awareness campaigns," the Coast Guard indicated that it would publish a series of articles "aimed at avoiding boat/propeller strike accidents," which could include the topic of "available propeller guards." App. 82-83.68ment and execution'''' of those objectives .... Congress has delegated to DOT authority to implement the statute; the subject matter is technical; and the relevant history and background are complex and extensive. The agency is likely to have a thorough understanding of its own regulation and its objectives and is 'uniquely qualified' to comprehend the likely impact of state requirements." Id., at 883. In the case before us today, the Solicitor General, joined by counsel for the Coast Guard, has informed us that the agency does not view the 1990 refusal to regulate or any subsequent regulatory actions by the Coast Guard as having any preemptive effect. Our reasoning in Geier therefore provides strong support for petitioner's submission.vEven though the refusal to regulate propeller guards in 1990 had no pre-emptive effect, it is possible that the statutory scheme as a whole implicitly pre-empted common-law claims such as petitioner's when it was enacted in 1971. If that were so, the exemption carried forward by the Secretary in 1973 after the first federal regulations were adopted might have saved existing state common-law rules "in effect on the effective date" of the 1971 Act, so far as those rules relate to propeller guards. 38 Fed. Reg., at 6915. But even if that is not the case, we think it clear that the FBSA did not so completely occupy the field of safety regulation of recreational boats as to foreclose state common-law remedies.In Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978), we considered a federal statute that directed the Secretary of Transportation to determine "which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States," and after inspection to certify "each vessel as sufficiently safe to protect the marine environment." Id., at 163, 165. We held that this scheme of mandatory federal regulation implicitly pre-empted the power of the State of Washington "to exclude from Puget Sound ves-69sels certified by the Secretary as having acceptable design characteristics, unless they satisfy the different and higher design requirements imposed by state law." Id., at 165. As we explained in United States v. Locke, 529 U. S. 89 (2000), the analysis in Ray was governed by field-preemption rules because the rules at issue were in a "field reserved for federal regulation" and "Congress ha[d] left no room for state regulation of these matters." 529 U. S., at 111. In particular, Title II of the Ports and Waterways Safety Act of 1972 (PWSA) required the Secretary to issue "such rules and regulations as may be necessary with respect to the design, construction, and operation of the covered vessels." 435 U. S., at 161.The Illinois Supreme Court relied on both Ray and Locke to find petitioner's claims impliedly pre-empted. But the FBSA, unlike Title II of the PWSA, does not require the Coast Guard to promulgate comprehensive regulations covering every aspect of recreational boat safety and design; nor must the Coast Guard certify the acceptability of every recreational boat subject to its jurisdiction. Moreover, neither Title II of the PWSA nor the holding in either Ray or Locke purported to pre-empt possible common-law claims, whereas the FBSA expressly preserves such claims.The FBSA might be interpreted as expressly occupying the field with respect to state positive laws and regulations but its structure and framework do not convey a "clear and manifest" intent, English v. General Elec. Co., 496 U. S. 72, 79 (1990) (internal quotation marks and citations omitted), to go even further and implicitly pre-empt all state common law relating to boat manufacture. Rather, our conclusion that the Act's express pre-emption clause does not cover common-law claims suggests the opposite intent. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992); id., at 547 (SCALIA, J., concurring in judgment in part and dissenting in part). Nor is a clear and manifest intent to sweep away state common law established by an unembellished70statement in a House Report that the 1971 Act "preempts the field on boating standards or regulations." H. R. Rep. No. 92-324, p. 11 (1971). The statement was made prior to the amendment containing the saving clause, and nothing in the entire report suggests that it meant the occupied "field" to include judge-made common law.Respondent ultimately relies upon one of the FBSA's main goals: fostering uniformity in manufacturing regulations. Uniformity is undoubtedly important to the industry, and the statute's pre-emption clause was meant to "assur[e] that manufacture for the domestic trade will not involve compliance with widely varying local requirements." S. Rep. 20. Yet this interest is not unyielding, as is demonstrated both by the Coast Guard's early grants of broad exemptions for state regulations and by the position it has taken in this litigation. Absent a contrary decision by the Coast Guard, the concern with uniformity does not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act's more prominent objective, emphasized by its title, of promoting boating safety.The judgment of the Illinois Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusSPRIETSMA, ADMINISTRATOR OF THE ESTATE OF SPRIETSMA, DECEASED v. MERCURY MARINE, A DIVISION OF BRUNSWICK CORP.CERTIORARI TO THE SUPREME COURT OF ILLINOISNo. 01-706. Argued October 15, 2002-Decided December 3, 2002Petitioner's wife was killed in a boating accident when she was struck by the propeller of an outboard motor manufactured by respondent, Mercury Marine, a division of Brunswick Corporation (Brunswick). In his subsequent common-law tort action in Illinois state court, petitioner claimed that Brunswick's motor was unreasonably dangerous because, among other things, it was not protected by a propeller guard. The trial court dismissed the complaint, and the intermediate court affirmed, finding the action expressly pre-empted by the Federal Boat Safety Act of 1971 (FBSA or Act). The Illinois Supreme Court rejected that rationale, but affirmed on implied pre-emption grounds.Held: The FBSA does not pre-empt state common-law claims such as petitioner's. Pp. 56-70.(a) The FBSA was enacted to improve boating safety, to authorize the establishment of national construction and performance standards for boats and associated equipment, and to encourage greater uniformity of boating laws and regulations as among the States and the Federal Government. The Secretary of Transportation has delegated the authority to promulgate regulations establishing minimum safety standards for recreational vessels and associated equipment to the Coast Guard, which must, inter alia, consult with a special National Boating Safety Advisory Council before exercising that authority. The Coast Guard may issue exemptions from its regulations if boating safety will not be adversely affected. Section 10 of the Act sets forth an express pre-emption clause, and § 40's saving clause provides that compliance with the Act or standards, regulations, or orders prescribed under the Act does not relieve a person from liability at common law or under state law. When the Coast Guard issued its first regulations in 1972, the Secretary exempted from pre-emption state laws that regulate matters not covered by the federal regulations. The Coast Guard has since promulgated a host of detailed regulations, but it determined in 1990, after an 18-month inquiry by an Advisory Council subcommittee, that available data did not support adoption of a regulation requiring propel-52Syllabusler guards. In 2001, the Advisory Council recommended specific propeller guard regulations, but no regulations regarding their use on recreational boats such as the one in this case are currently pending. Pp.56-62.(b) The FBSA does not expressly pre-empt petitioner's common-law tort claims. Section 10's express pre-emption clause-which applies to "a [state or local] law or regulation"-is most naturally read as not encompassing common-law claims for two reasons. First, the article "a" implies a discreteness that is not present in common law. Second, because "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575, the terms "law" and "regulation" used together indicate that Congress only pre-empted positive enactments. The Act's saving clause buttresses this conclusion. It assumes that there are some significant number of common-law liability cases to save, and § 1O's language permits a narrow reading excluding common-law actions. See Geier v. American Honda Motor Co., 529 U. S. 861, 868. And the contrast between its general reference to "liability at common law" and § 1O's more specific and detailed description of what is pre-emptedincluding an exception for state regulations addressing "uniquely hazardous conditions"-indicates that § 10 was drafted to pre-empt performance standards and equipment requirements imposed by statute or regulation. This interpretation does not produce anomalous results. It would have been perfectly rational for Congress not to pre-empt common-law claims, which necessarily perform an important remedial role in compensating accident victims. pp. 62-64.(c) The Coast Guard's 1990 decision not to regulate propeller guards also does not pre-empt petitioner's claims. That decision left applicable propeller guard law exactly the same as it had been before the subcommittee began its investigation. A Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority pending adoption of specific federal standards. The Coast Guard's explanation for its propeller guard decision reveals only that the available data did not meet the FBSA's stringent criteria for federal regulation. The Coast Guard did not take the further step of deciding that, as a matter of policy, the States and their political subdivisions should not impose some version of propeller guard regulation, and it did not reject propeller guards as unsafe. Although undoubtedly intentional and carefully considered, the 1990 decision does not convey an authoritative message of a federal policy against propeller guards, and nothing in the Coast Guard's recent regulatory activities alters this conclusion. Geier v. American Honda Motor Co., 529 U. S. 861, distinguished. pp. 64-68.53Full Text of Opinion

1955_23

MR. JUSTICE CLARK.This appeal brings into question the constitutionality of § 903 of the Charter of the City of New York. That section provides that whenever an employee of the City utilizes the privilege against self-incrimination to avoid answering a question relating to his official conduct,"his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency. [Footnote 1]"Appellant Slochower invoked the privilege against self-incrimination Page 350 U. S. 553 under the Fifth Amendment before an investigating committee of the United States Senate, and was summarily discharged from his position as associate professor at Brooklyn College, an institution maintained by the City of New York. He now claims that the charter provision, as applied to him, violates both the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment.On September 24, 1952, the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate held open hearings in New York City. The investigation, conducted on a national scale, related to subversive influences in the American educational system. At the beginning of the hearings, the Chairman stated that education was primarily a state and local function, and therefore the inquiry would be limited to "considerations affecting national security, which are directly within the purview and authority of the subcommittee." Hearings before the Subcommittee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of Senate Committee on the Judiciary, 82d Cong., 2d sess. 1. Professor Slochower, when called to testify, stated that he was not a member of the Communist Party, and indicated complete willingness to answer all questions about his associations or political beliefs since 1941. But he refused to answer questions concerning his membership during 1940 and 1941 on the ground that his answers might tend to incriminate him. The Chairman of the Senate Subcommittee accepted Slochower's claim as a valid assertion of an admitted constitutional right.It had been alleged that Slochower was a Communist in 1941 in the testimony of one Bernard Grebanier before the Rapp-Coudert Committee of the New York Legislature. See Report of the Subcommittee of the Joint Legislative Committee to Investigate Procedures and Methods of Page 350 U. S. 554 Allocating State Moneys for Public School Purposes and Subversive Activities, Legislative Document (1942), No. 49, State of New York at 318. Slochower testified that he had appeared twice before the Rapp-Coudert Committee, and had subsequently testified before the Board of Faculty relating to this charge. He also testified that he had answered questions at these hearings relating to his Communist affiliations in 1940 and 1941.Shortly after testifying before the Internal Security Subcommittee, Slochower was notified that he was suspended from his position at the College; three days later, his position was declared vacant "pursuant to the provisions of Section 903 of the New York City charter." *Slochower had 27 years' experience as a college teacher, and was entitled to tenure under state law. McKinney's New York Laws, c. 16, Education Law, § 6206(2). Under this statute, appellant may be discharged only for cause, and after notice, hearing, and appeal. § 6206(10). The Court of Appeals of New York, however, has authoritatively interpreted § 903 to mean that "The assertion of the privilege against self-incrimination is equivalent to a resignation." Daniman v. Board of Education of City of New York, 306 N.Y. 532, 538, 119 N.E.2d 373, 377. Dismissal under this provision is therefore automatic, and there is no right to charges, notice, hearing, or opportunity to explain.The Supreme Court of New York, County of Kings, concluded that appellant's behavior fell within the scope of § 903, and upheld its application here. 202 Misc. 915, 118 N.Y.S.2d 487. The Appellate Division, 282 App.Div. 718, 122 N.Y.S.2d 286, reported sub nom. Shlakman v. Board of Higher Education of City of New York, and the Court of Appeals, reported Page 350 U. S. 555 sub nom. Daniman v. Board of Education of City of New York, supra, each by a divided court, affirmed. We noted probable jurisdiction, 348 U.S. 935, because of the importance of the question presented. [Footnote 2]Slochower argues that § 903 abridges a privilege or immunity of a citizen of the United States, since it, in effect, imposes a penalty on the exercise of a federally guaranteed right in a federal proceeding. It also violates due process, he argues, because the mere claim of privilege under the Fifth Amendment does not provide a reasonable basis for the State to terminate his employment. Appellee insists that no question of "privileges or immunities" was raised or passed on below, and therefore directs its argument solely to the proposition that § 903 does not operate in an arbitrary or capricious manner. We do not decide whether a claim under the "privileges or immunities" clause was considered below, since we conclude the summary dismissal of appellant in the circumstances of this case violates due process of law.The problem of balancing the State's interest in the loyalty of those in its service with the traditional safeguards of individual rights is a continuing one. To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities. Adler v. Board of Education, 342 U. S. 485, upheld the New York Feinberg Law which authorized the public school authorities to Page 350 U. S. 556 dismiss employees who, after notice and hearing, were found to advocate the overthrow of the Government by unlawful means, or who were unable to explain satisfactorily membership in certain organizations found to have that aim. [Footnote 3] Likewise, Garner v. Los Angeles Board, 341 U. S. 716, 341 U. S. 720, upheld the right of the city to inquire of its employees as to "matters that may prove relevant to their fitness and suitability for the public service," including their membership, past and present, in the Communist Party or the Communist Political Association. There, it was held that the city had power to discharge employees who refused to file an affidavit disclosing such information to the school authorities. [Footnote 4]But, in each of these cases, it was emphasized that the State must conform to the requirements of due process. In Wieman v. Updegraff, 344 U. S. 183, we struck down a so-called "loyalty oath" because it based employability solely on the fact of membership in certain organizations. We pointed out that membership itself may be innocent, and held that the classification of innocent and guilty together was arbitrary. [Footnote 5] This case rests squarely on the proposition that"constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory."344 U.S. at 344 U. S. 192.Here, the Board, in support of its position, contends that only two possible inferences flow from appellant's claim Page 350 U. S. 557 of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that, in order to avoid answering the question, he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury. Either inference, it insists, is sufficient to justify the termination of his employment. The Court of Appeals, however, accepted the Committee's determination that the privilege had been properly invoked, and it further held that no inference of Communist Party membership could be drawn from such a refusal to testify. It found the statute to impose merely a condition on public employment, and affirmed the summary action taken in the case. With this conclusion, we cannot agree.At the outset, we must condemn the practice of imputing a sinister meaning to the exercise of a person's constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as "one of the most valuable prerogatives of the citizen." Brown v. Walker, 161 U. S. 591, 161 U. S. 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U. S. 155. In Ullmann v. United States, 350 U. S. 422, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might Page 350 U. S. 558 be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).With this in mind, we consider the application of § 903. As interpreted and applied by the state courts, it operates to discharge every city employee who invokes the Fifth Amendment. In practical effect, the questions asked are taken as confessed, and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence, or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive. Such action falls squarely within the prohibition of Wieman v. Updegraff, supra.It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at "the property, affairs, or government of the city, or . . . official conduct of city employees." In this respect, the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record, the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.Without attacking Professor Slochower's qualification for his position in any manner, and apparently with full knowledge of the testimony he had given some 12 years Page 350 U. S. 559 before at the state committee hearing, the Board seized upon his claim of privilege before the federal committee and converted it through the use of § 903 into a conclusive presumption of guilt. Since no inference of guilt was possible from the claim before the federal committee, the discharge falls of its own weight as wholly without support. There has not been the "protection of the individual against arbitrary action" which Mr. Justice Cardozo characterized as the very essence of due process. Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U. S. 292, 301 U. S. 302.This is not to say that Slochower has a constitutional right to be an associate professor of German at Brooklyn College. The State has broad powers in the selection and discharge of its employees, and it may be that proper inquiry would show Slochower's continued employment to be inconsistent with a real interest of the State. But there has been no such inquiry here. We hold that the summary dismissal of appellant violates due process of law.The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtSlochower v. Board of Education, 350 U.S. 551 (1956)Slochower v. Board of Higher Education of New York CityNo. 23Argued October 18-19, 1955Decided April 9, 1956350 U.S. 551SyllabusSection 903 of the New York City Charter provides that, whenever a city employee utilizes the privilege against self-incrimination to avoid answering before a legislative committee, a question relating to his official conduct, his employment shall terminate. A teacher in a college operated by the City was summarily discharged under this section, without notice or hearing, because, while testifying before a federal legislative committee, he refused to answer questions concerning his membership in the Communist Party in 1940 and 1941 on the ground that his answers might tend to incriminate him. Under the New York Education Law, he was entitled to tenure, and could be discharged only for cause and after notice, hearing and appeal.Held: in the circumstances of this case, his summary dismissal violated the Due Process Clause of the Fourteenth Amendment. Pp. 350 U. S. 552-559.(a) The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. Pp. 350 U. S. 556-558.(b) On the record in this case, it cannot be claimed that the Board's action in dismissing the teacher was part of a bona fide attempt to gain needed and relevant information regarding his qualifications for his position. Pp. 350 U. S. 558-559.(c) Since no inference of guilt was possible from the claim of the privilege against self-incrimination before the federal committee, the discharge falls of its own weight as wholly without support. P. 350 U. S. 559.(d) Adler v. Board of Education, 342 U. S. 485, and Garner v. Los Angeles Board, 341 U. S. 716, distinguished. Pp. 350 U. S. 555-556.(e) Wieman v. Updegraff, 344 U. S. 183, followed. Pp. 350 U. S. 556-558.306 N.Y. 532, 119 N.E.2d 373, 307 N.Y. 806, 121 N.E.2d 629, reversed and remanded. Page 350 U. S. 552

1977_77-510

MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Rio Mimbres rises in the southwestern highlands of New Mexico and flows generally southward, finally disappearing in a desert sink just north of the Mexican border. The river originates in the upper reaches of the Gila National Forest, but during its course, it winds more than 50 miles past privately owned lands and provides substantial water for both irrigation and mining. In 1970, stream adjudication was begun by the State of New Mexico to determine the exact rights of each user to water from the Rio Mimbres. [Footnote 1] In this Page 438 U. S. 698 adjudication the United State claimed reserved water rights for use in the Gila National Forest. The State District Court held that the United States, in setting aside the Gila National Forest from other public lands, reserved the use of such water "as may be necessary for the purposes for which [the land was] withdrawn," but that these purposes did not include recreation, aesthetics, wildlife preservation, or cattle grazing. The United States appealed unsuccessfully to the Supreme Court of New Mexico. Mimbres Valley Irrigation Co. v. Salopek, 90 N.M. 410, 564 P.2d 615 (1977). We granted certiorari to consider whether the Supreme Court of New Mexico had applied the correct principles of federal law in determining petitioner's reserved rights in the Mimbre. 434 U.S. 1008. We now affirm.IThe question posed in this case -- what quantity of water, if any, the United States reserved out of the Rio Mimbres when it set aside the Gila National Forest in 1899 -- is a question of implied intent, and not power. In California v. United States, ante at 438 U. S. 653-663, we had occasion to discuss the respective authority of Federal and State Governments over waters in the Western States. [Footnote 2] The Court has previously concluded that whatever powers the States acquired over their water as a result of congressional Acts and admission into the Union, however, Congress did not intend thereby to relinquish its authority to reserve unappropriated water in the future for use on appurtenant lands withdrawn from the public domain for specific federal purposes. Winters v. United States, 207 U. S. 564, 207 U. S. 577 (1908); Arizona v. California, 373 U. S. 546, 373 U. S. 597-598 (1963); Cappaert v. United States, 426 U. S. 128, 426 U. S. 143-146 (1976). Page 438 U. S. 699Recognition of Congress' power to reserve water for land which is itself set apart from the public domain, however, does not answer the question of the amount of water which has been reserved or the purposes for which the water may be used. Substantial portions of the public domain have been withdrawn and reserved by the United States for use as Indian reservations, forest reserves, national parks, and national monuments. And water is frequently necessary to achieve the purposes for which these reservations are made. But Congress has seldom expressly reserved water for use on these withdrawn lands. If water were abundant, Congress' silence would pose no problem. In the arid parts of the West, however, claims to water for use on federal reservations inescapably vie with other public and private claims for the limited quantities to be found in the rivers and streams. This competition is compounded by the sheer quantity of reserved lands in the Western States, which lands form brightly colored swaths across the maps of these States. [Footnote 3]The Court has previously concluded that Congress, in giving Page 438 U. S. 700 the President the power to reserve portions of the federal domain for specific federal purposes, impliedly authorized him to reserve "appurtenant water then unappropriated to the extent needed to accomplish the purpose o the reservation." Cappaert, supra, at 426 U. S. 138 (emphasis added). See Arizona v. California, supra at 373 U. S. 595-601; United States v. District Court for Eagle County, 401 U. S. 520, 401 U. S. 522-523 (1971); Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 424 U. S. 805 (1976). While many of the contours of what has come to be called the "implied reservation of water doctrine" remain unspecified, the Court has repeatedly emphasized that Congress reserved "only that amount of water necessary to fulfill the purpose of the reservation, no more." Cappaert, supra at 426 U. S. 141. See Arizona v. California, supra at 373 U. S. 600-601; District Court for Eagle County, supra at 401 U. S. 523. Each time this Court has applied the "implied reservation of water doctrine," it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that, without the water, the purposes of the reservation would be entirely defeated. [Footnote 4] Page 438 U. S. 701This careful examination is required both because the reservation is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state Page 438 U. S. 702 jurisdiction with respect to allocation of water. Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. [Footnote 5] See California v. United States, ante at 438 U. S. 653-670, 438 U. S. 678-679. Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress' express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator.Congress indeed has appropriated funds for the acquisition under state law of water to be used on federal reservations. Thus, in the National Park Service Act of Aug. 7, 1946, 60 Stat. 885, as amended, 16 U.S.C. § 17j-2 (1976 ed.), Congress authorized appropriations for the"[i]nvestigation and establishment of water rights in accordance with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands or interests in lands or rights-of-way for use and protection of water rights necessary or beneficial in the Page 438 U. S. 703 administration and public use of the national parks and monuments."(Emphasis added.) [Footnote 6] The agencies responsible for administering the federal reservations have also recognized Congress' intent to acquire under state law any water not essential to the specific purposes of the reservation. [Footnote 7]The State District Court referred the issues in this case to a Special Master, who found that the United States was diverting 6.9 acre-feet per annum of water for domestic residential use, 6.5 acre-feet for road-water use, 3.23 acre-feet for domestic recreational use, and .10 acre-foot for "wildlife" purposes. [Footnote 8] The Special Master also found that specified Page 438 U. S. 704 amounts of water were being used in the Gila National Forest for stockwatering, and that an "instream flow" of six cubic feet per second was being "used" for the purposes of fish preservation. The Special Master apparently believed that all of these uses fell within the reservation doctrine, and also concluded that the United States might have reserved rights for future water needs, ordering it to submit a report on future requirements within one year of his decision.The District Court of Luna County disagreed with many of the Special Master's legal conclusions, but agreed with the Special Master that the Government should prepare within one year a report covering any future water requirements that might support a claim of reserved right in the waters of the Rio Mimbres. The District Court concluded that the United States had not established a reserved right to a minimum instream flow for any of the purposes for which the Gila National Forest was established, and that any water rights arising from cattle grazing by permittees on the forest should be adjudicated "to the permittee under the law of prior appropriation and not to the United States."The United States appealed this decision to the Supreme Court of New Mexico. The United States contended that it was entitled to a minimum instream flow for "aesthetic, environmental, recreational and fish' purposes." 90 N.M. at 412, 564 P.2d at 617. The Supreme Court of New Mexico concluded that, at least before the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. § 528 et seq. (1976 ed.), national forests could only be created "to insure favorable conditions of water flow and to furnish a continuous supply of timber," and not for the purposes upon which the United States was now basing its asserted reserved rights in a minimum instream flow. 90 N.M. at 412-413, 564 P.2d at 617-619. The United States also argued that it was entitled to a reserved right for stockwatering purposes. The State Supreme Court again disagreed, holding that stockwatering Page 438 U. S. 705 was not a purpose for which the national forests were created. Id. at 414, 564 P.2d at 619.IIAThe quantification of reserved water rights for the national forests is of critical importance to the West, where, as noted earlier, water is scarce and where more than 50% of the available water either originates in or flows through national forests. [Footnote 9] When, as in the case of the Rio Mimbres, a river is fully appropriated, federal reserved water rights will frequently require a gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators. This reality has not escaped the attention of Congress, and must be weighed in determining what, if any, water Congress reserved for use in the national forests.The United States contends that Congress intended to reserve minimum instream flows for aesthetic, recreational, and fish-preservation purposes. An examination of the limited purposes for which Congress authorized the creation of national forests, however, provides no support for this claim. In the mid- and late 1800's, many of the forest on the public domain were ravaged, and the fear arose that the forest lands might soon disappear, leaving the United States with a shortage both of timber and of watersheds with which to encourage stream flows while preventing floods. [Footnote 10] It was in answer to these fears that, in 1891, Congress authorized the President to"set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations."Creative Act of Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U.S.C. § 471 (repealed 1976). Page 438 U. S. 706The Creative Act of 1891 unfortunately did not solve the forest problems of the expanding Nation. To the dismay of the conservationists, the new national forests were not adequately attended and regulated; fires and indiscriminate timber cutting continued their toll. [Footnote 11] To the anguish of Western settlers, reservations were frequently made indiscriminately. President Cleveland, in particular, responded to pleas of conservationists for greater protective measures by reserving some 21 million acres of "generally settled" forest land on February 22, 1897. [Footnote 12] President Cleveland's action drew immediate and strong protest from Western Congressmen who felt that the "hasty and ill-considered" reservation might prove disastrous to the settlers living on or near these lands. [Footnote 13]Congress' answer to these continuing problems was threefold. It suspended the President's Executive Order of February 22, 1897; it carefully defined the purposes for which national forests could in the future be reserved; and it provided a charter for forest management and economic uses within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34, 16 U.S.C. § 473 et seq. (1976 ed.). In particular, Congress provided:"No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use Page 438 U. S. 707 and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of [the Creative Act of 1891], to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes."30 Stat. 35, as codified, 16 U.S.C. § 475 (1976 ed.) (emphasis added) .The legislative debates surrounding the Organic Administration Act of 1897 and its predecessor bills demonstrate that Congress intended national forests to be reserved for only two purposes -- "[t]o conserve the water flows, and to furnish a continuous supply of timber for the people." [Footnote 14] 30 Cong.Rec. Page 438 U. S. 708 967 (1897) (Cong. McRae). See United States v. Grimaud, 220 U. S. 506, 220 U. S. 515 (1911). National forests were not to be reserved for aesthetic, environmental, recreational, or wildlife preservation purposes. [Footnote 15]"The objects for which the forest reservations should be made are the protection of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which water conditions and water flow are dependent. The purpose, therefore, of this bill is to maintain favorable forest conditions, without excluding the use of these reservations for other purposes. They are not parks set aside for nonuse, but have been established for economic reasons."30 Cong.Rec. 966 (1897) (Cong. McRae). Administrative regulations at the turn of the century confirmed that national forests were to be reserved for only these two limited purposes. [Footnote 16] Page 438 U. S. 709Any doubt as to the relatively narrow purposes for which national forests were to be reserved is removed by comparing the broader language Congress used to authorize the establishment of national parks. [Footnote 17] In 1916, Congress created the National Park Service and provided that the"fundamental purpose of the said parks, monuments, and reservations . . . is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same . . . unimpaired for the enjoyment of future generations."National Park Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U.S.C. § 1 (1976 ed.). [Footnote 18] Page 438 U. S. 710 When it was Congress' intent to maintain minimum instream flows within the confines of a national forest, it expressly so directed, as it did in the case of the Lake Superior National Forest:"In order to preserve the shorelines, rapids, waterfalls, beaches and other natural features of the region in an unmodified state of nature, no further alteration of the natural water level of any lake or stream . . . shall be authorized."16 U.S.C. § 577b (1976 ed.).National park legislation is not the only instructive comparison. In the Act of Mar. 10, 1934, 48 Stat. 400, 16 U.S.C. § 64 (1976 ed.), Congress authorized the establishment within individual national forests of fish and game sanctuaries, but only with the consent of the state legislatures. The Act specifically provided:"For the purpose of providing breeding places for game birds, game animals, and fish on lands and waters in the national forests not chiefly suitable for agriculture, the President of the United States is authorized, upon recommendation of the Secretary of Agriculture and the Secretary of Commerce and with the approval of the State legislatures of the respective States in which said national forests are situated, to establish by public proclamation certain specified and limited areas within said forests as fish and game sanctuaries or refuges which shall Page 438 U. S. 711 be devoted to the increase of game birds, game animals, and fish of all kinds naturally adapted thereto."(Emphasis added.) If, as the dissent contends, post at 438 U. S. 722, Congress in the Organic Administration Act of 1897 authorized the reservation of forests to "improve and protect" fish and wildlife, the 1934 Act would have been unnecessary. Nor is the dissent's position consistent with Congress' concern in 1934 that fish and wildlife preserves only be created "with the approval of the State legislatures."As the dissent notes, in creating what would ultimately become Yosemite National Park, Congress, in 1890, explicitly instructed the Secretary of the Interior to provide against the wanton destruction of fish and game inside the forest and against their taking "for the purposes of merchandise or profit." Act of Oct. 1, 1890, § 2, 26 Stat. 651. Congress also instructed the Secretary to protect all "the natural curiosities, or wonders within such reservation, . . . in their natural condition." By comparison, Congress, in the 1897 Organic Act, expressed no concern for the preservation of fish and wildlife within national forests generally. Nor is such a concern found in any of the comments made during the legislative debate on the 1897 Act. Cf. also H.R. 119, 54th Cong., 1st Sess., 28 Cong.Rec. 6410 (1896). [Footnote 19]BNot only is the Government's claim that Congress intended to reserve water for recreation and wildlife preservation inconsistent with Congress' failure to recognize these goals as purposes of the national forests, it would defeat the very Page 438 U. S. 712 purpose for which Congress did create the national forest system. [Footnote 20]"[F]orests exert a most important regulating influence upon the flow of rivers, reducing floods and increasing the water supply in the low stages. The importance of their conservation on the mountainous watersheds which collect the scanty supply for the arid regions of North America can hardly be overstated. With the natural regimen of the streams replaced by destructive floods in the spring, and by dry beds in the months when the irrigating flow is most needed, the irrigation of wide areas now proposed will be impossible, and regions now supporting prosperous communities will become depopulated."S.Doc. No. 105, 55th Cong., 1st Sess., 10 (1897). The water that would be "insured" by preservation of the forest was to"be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder."Organic Administration Act of 1897, 30 Stat. 36, 16 U.S.C. Page 438 U. S. 713 § 481 (1976 ed.). As this provision and its legislative history evidence, Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West. The Government, however, would have us now believe that Congress intended to partially defeat this goal by reserving significant amounts of water for purposes quite inconsistent with this goal.CIn 1960, Congress passed the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. § 528 et seq. (1976 ed.), which provides:"It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897.]"The Supreme Court of New Mexico concluded that this Act did not give rise to any reserved rights not previously authorized in the Organic Administration Act of 1897."The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect, nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897."90 N.M. at 413, 564 P.2d at 618. While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress did not intend to thereby expand the reserved rights of the United States. [Footnote 21] Page 438 U. S. 714The Multiple-Use Sustained-Yield Act of 1960 establishes the purposes for which the national forests "are established and shall be administered." (Emphasis added.) The Act directs the Secretary of Agriculture to administer all forests, including those previously established, on a multiple-use and sustained-yield basis. H.R. 10572, 86th Cong., 2d Sess., 1 (1960). In the administration of the national forests, therefore, Congress intended the Multiple-Use Sustained-Yield Act of 1960 to broaden the benefits accruing from all reserved national forests.The House Report accompanying the 1960 legislation, however, indicates that recreation, range, and "fish" purposes are "to be supplemental to, but not in derogation of, the purposes for which the national forests were established" in the Organic Administration Act of 1897."The addition of the sentence to follow the first sentence in section 1 is to make it clear that the declaration of congressional policy that the national forests are established and shall be administered for the purposes enumerated is supplemental to, but is not in derogation of, the purposes of improving and protecting the forest or for securing favorable conditions of water flows and to furnish a continuous supply of timber as set out in the Page 438 U. S. 715 cited provision of the act of June 4, 1897. Thus, in any establishment of a national forest, a purpose set out in the 1897 act must be present, but there may also exist one or more of the additional purposes listed in the bill. In other words, a national forest could not be established just for the purpose of outdoor recreation, range, or wildlife and fish purposes, but such purposes could be a reason for the establishment of the forest if there also were one or more of the purposes of improving and protecting the forest, securing favorable conditions of water flows, or to furnish a continuous supply of timber as set out in the 1897 act."H.R.Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960). As discussed earlier, the "reserved rights doctrine" is a doctrine built on implication, and is an exception to Congress' explicit deference to state water law in other areas. Without legislative history to the contrary, we are led to conclude that Congress did not intend in enacting the Multiple-Use Sustained-Yield Act of 1960 to reserve water for the secondary purposes there established. [Footnote 22] A reservation of additional water could mean a substantial loss in the amount of water available for irrigation and domestic use, thereby defeating Congress' principal purpose of securing favorable conditions of water flow. Congress intended the national forests to be administered for broader purposes after 1960, but there is no indication that it believed the new purposes to be so crucial as to require a reservation of additional water. By reaffirming the primacy of a favorable water flow, it indicated the opposite intent.IIIWhat we have said also answers the Government's contention that Congress intended to reserve water from the Rio Page 438 U. S. 716 Mimbres for stockwatering purposes. The United States issues permits to private cattle owners to graze their stock on the Gila National Forest and provides for stockwatering at various locations along the Rio Mimbres. The United States contends that, since Congress clearly foresaw stockwatering on national forests, reserved rights must be recognized for this purpose. The New Mexico courts disagreed, and held that any stockwatering rights must be allocated under state law to individual stockwaterers. We agree.While Congress intended the national forests to be put to a variety of uses, including stockwatering, not inconsistent with the two principal purposes of the forests, stockwatering was not, itself, a direct purpose of reserving the land. [Footnote 23] If stockwatering could not take place in the Gila National Forest, Congress' purposes in reserving the land would not be defeated. Congress, of course, did intend to secure favorable water flows, and one of the uses to which the enhanced water supply was intended to be placed was probably stockwatering. But Congress intended the water supply from the Rio Mimbres to Page 438 U. S. 717 be allocated among private appropriators under state law. 16 U.S.C. § 481 (1976 ed.). [Footnote 24] There is no indication in the legislative histories of any of the forest Acts that Congress foresaw any need for the Forest Service to allocate water for stockwatering purposes, a task to which state law was well suited. Page 438 U. S. 718IVCongress intended that water would be reserved only where necessary to preserve the timber or to secure favorable water flows for private and public uses under state law. This intent is revealed in the purposes for which the national forest system was created and Congress' principled deference to state water law in the Organic Administration Act of 1897 and other legislation. The decision of the Supreme Court of New Mexico is faithful to this congressional intent, and is thereforeAffirmed

U.S. Supreme CourtUnited States v. New Mexico, 438 U.S. 696 (1978)United States v. New MexicoNo. 77-510Argued April 24, 25, 1978Decided July 3, 1978438 U.S. 696SyllabusThe United States, in setting aside the Gila National Forest from other public lands, held to have reserved the use of water out of the Rio Mimbres only where necessary to preserve the timber in the forest or to secure favorable water flows, and hence not to have a reserved right for aesthetic, recreational, wildlife preservation, and stockwatering purposes. That this was Congress' intent is revealed in the limited purposes for which the national forest system was created and in Congress' deference to state water law in the Organic Administration Act of 1897 and other legislation. While the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, Congress did not intend thereby to reserve additional water in forests previously withdrawn under the 1897 Act. Pp. 438 U. S. 698-718.90 N.M. 410, 564 P.2d 615, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed an opinion dissenting in part, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 438 U. S. 718. Page 438 U. S. 697

1976_75-6933

MR. JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent.IOn November 29, 1973, the petitioner, Nathaniel Brown, stole a 1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine days later, on December 8, 1973, Brown was caught driving the car in Wickliffe, Ohio. The Wickliffe police charged him with "joyriding" -- taking or operating the car without the owner's consent -- in violation of Ohio Rev.Code Ann. § 4549.04(D) (1973, App. 342). [Footnote 1] The complaint charged that,"on or about December 8, 1973, . . . Nathaniel H. Brown did unlawfully and purposely take, drive or operate a certain motor vehicle to wit; a 1965 Chevrolet . . . without the consent of the owner one Gloria Ingram. . . ."App. 3. Brown pleaded guilty to this charge and was sentenced to 30 days in jail and a $100 fine.Upon his release from jail on January 8, 1974, Brown was returned to East Cleveland to face further charges, and, on February 5, he was indicted by the Cuyahoga County grand jury. The indictment was in two counts, the first charging Page 432 U. S. 163 the theft of the car "on or about the 29th day of November 1973," in violation of Ohio Rev.Code Ann. § 4549.04(A) (1973, App. 342), [Footnote 2] and the second charging joyriding on the same date in violation of § 4549.04(D). A bill of particulars filed by the prosecuting attorney specified that"on or about the 29th day of November, 1973, . . . Nathaniel Brown unlawfully did steal a Chevrolet motor vehicle, and take, drive or operate such vehicle without the consent of the owner, Gloria Ingram. . . ."App. 10. Brown objected to both counts of the indictment on the basis of former jeopardy.On March 18, 1974, at a pretrial hearing in the Cuyahoga County Court of Common Pleas, Brown pleaded guilty to the auto theft charge on the understanding that the court would consider his claim of former jeopardy on a motion to withdraw the plea. [Footnote 3] Upon submission of the motion, the court overruled Brown's double jeopardy objections. The court sentenced Brown to six months in jail but suspended the sentence and placed Brown on probation for one year.The Ohio Court of Appeals affirmed. It held that, under Ohio law, the misdemeanor of joyriding was included in the felony of auto theft:"Every element of the crime of operating a motor vehicle without the consent of the owner is also an element of the crime of auto theft. 'The difference between the crime of stealing a motor vehicle, and operating a motor vehicle without the consent of the owner is that conviction for stealing requires proof of an intent on the part of the thief to permanently deprive the owner of possession.' . . . [T]he crime of operating a motor vehicle without the Page 432 U. S. 164 consent of the owner is a lesser included offense of auto theft. . . ."Id. at 22. Although this analysis led the court to agree with Brown that, "for purposes of double jeopardy the two prosecutions involve the same statutory offense," id. at 23, [Footnote 4] it nonetheless held the second prosecution permissible:"The two prosecutions are based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant has not shown that both prosecutions are based on the same act or transaction, the second prosecution is not barred by the double jeopardy clause."Ibid. The Ohio Supreme Court denied leave to appeal.We granted certiorari to consider Brown's double jeopardy claim, 429 U.S. 893 (1976), and we now reverse.IIThe Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." It has long been understood that separate statutory crimes need not be identical -- either in constituent elements or in actual proof -- in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the "same offence" under the Double Jeopardy Clause. Page 432 U. S. 165Because it was designed originally to embody the protection of the common law pleas of former jeopardy, see United States v. Wilson, 420 U. S. 332, 420 U. S. 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. [Footnote 5]The Double Jeopardy Clause"protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U. S. 386 (1958); Bell v. United States, 349 U. S. 81 (1955); Ex parte Lange, 18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves "a constitutional policy of finality for the defendant's benefit." United States v. Jorn, 400 U. S. 470, 400 U. S. 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, See Ashe v. Swenson, 397 U.S. Page 432 U. S. 166 436 (1970); cf. United States v. Martin Linen Supply Co., 430 U. S. 564 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957); cf. North Carolina v. Pearce, supra.The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U. S. 299, 284 U. S. 304 (1932):"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . ."This test emphasizes the elements of the two crimes."If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . ."Iannelli v. United States, 420 U. S. 770, 420 U. S. 785 n. 17 (1975).If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U. S. 176, 131 U. S. 187-188 (1889); cf. Gavieres v. United States, 220 U. S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless "each statute requires proof of an additional fact which the other does not," Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment. [Footnote 6] Page 432 U. S. 167We are mindful that the Ohio courts "have the final authority to interpret . . . that State's legislation." Garner v. Louisiana, 368 U. S. 157, 368 U. S. 169 (1961). Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: joyriding consists of taking or operating a vehicle without the owner's consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; Page 432 U. S. 168 the prosecutor who has established auto theft necessarily has established joyriding as well.Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that "each [statute] requires proof of a fact which the other does not." 284 U.S. at 284 U. S. 304. As is invariably true of a greater and lesser included offense, the lesser offense -- joyriding -- requires no proof beyond that which is required for conviction of the greater -- auto theft. The greater offense is therefore, by definition, the "same" for purposes of double jeopardy as any lesser offense included in it.This conclusion merely restates what has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case, the Court endorsed the rule that"where . . . a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence."131 U.S. at 131 U. S. 188. Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id. at 131 U. S. 188, 131 U. S. 190, citing Morey v. Commonwealth, supra at 434. And as another application of the same rule, the Court cited, 131 U.S. at 131 U. S. 190, with approval the decision of State v. Cooper, 13 N.J.L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony murder indictment based on the death of a man killed in the fire. Cf. 397 U. S. Florida, 397 U.S. Page 432 U. S. 169 387, 397 U. S. 390 (1970): whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense. [Footnote 7]IIIAfter correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. App. 23. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. Cf. Braverman v. United States, 317 U. S. 49, 317 U. S. 52 (1942). The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown's offense, it was still only one offense under Ohio law. [Footnote 8] Accordingly, the specification of Page 432 U. S. 170 different dates in the two charges on which Brown was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth AmendmentsReversed

U.S. Supreme CourtBrown v. Ohio, 432 U.S. 161 (1977)Brown v. OhioNo. 75-6933Argued March 21, 1977Decided June 16, 1977432 U.S. 161SyllabusThe Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth, held to bar prosecution and punishment for the crime of stealing an automobile following prosecution and punishment for the lesser included offense of operating the same vehicle without the owner's consent. Pp. 432 U. S. 164-170.(a) "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not," Blockburger v. United States, 284 U. S. 299, 284 U. S. 304. In line with that test, the Double Jeopardy Clause generally forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Pp. 432 U.S. 166-169.(b) Here, though the Ohio Court of Appeals properly held that, under state law, joyriding (taking or operating a vehicle without the owner's consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession) constitute "the same statutory offense" within the meaning of the Double Jeopardy Clause, it erroneously concluded that petitioner could be convicted of both crimes because the charges against him had focused on different parts of the 9-day interval between petitioner's taking of the car and his apprehension. There was still only one offense under Ohio law, and the specification of different dates in the two charges against petitioner cannot alter the fact that he was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Pp. 432 U.S. 169-170.Reversed.POWELL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 432 U. S. 170. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 432 U. S. 170. Page 432 U. S. 162

1998_97-9361

ing factor been precisely defined. See Clemons v. Mississippi, 494 U. S. 738, 753-754. The Fifth Circuit performed the first sort of analysis, and its explanation appears sufficient. Even if its analysis was too perfunctory, it is plain, under the alternative mode of harmless-error analysis, that the error indeed was harmless. Had the nonstatutory aggravating factors been precisely defined in writing, the jury would have reached the same recommendation as it did. The Government's argument to the jury cured the factors of any infirmity as written. Pp. 402-405.THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-B, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part III-A, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, and in which BREYER, J., joined as to Parts I, II, III, and V, post, p. 405.Timothy Crooks argued the cause for petitioner. With him on the briefs was Timothy W Floyd.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Matthew D. Roberts, and Sean Connelly. *JUSTICE THOMAS delivered the opinion of the Court, except as to Part III -A. tPetitioner was sentenced to death for committing a kidnaping resulting in death to the victim. His sentence was imposed under the Federal Death Penalty Act of 1994, 18 U. S. C. § 3591 et seq. (1994 ed. and Supp. III). We are presented with three questions: whether petitioner was entitled to an instruction as to the effect of jury deadlock; whether there is a reasonable likelihood that the jury was led to believe that petitioner would receive a court-imposed sentence* Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. tJUSTICE SCALIA joins all but Part III-A of the opinion.376less than life imprisonment in the event that they could not reach a unanimous sentence recommendation; and whether the submission to the jury of two allegedly duplicative, vague, and overbroad nonstatutory aggravating factors was harmless error. We answer "no" to the first two questions. As for the third, we are of the view that there was no error in allowing the jury to consider the challenged factors. Assuming error, arguendo, we think it clear that such error was harmless.IPetitioner Louis Jones, Jr., kidnaped Private Tracie Joy McBride at gunpoint from the Goodfellow Air Force Base in San Angelo, Texas. He brought her to his house and sexually assaulted her. Soon thereafter, petitioner drove Private McBride to a bridge just outside of San Angelo, where he repeatedly struck her in the head with a tire iron until she died. Petitioner administered blows of such severe force that, when the victim's body was found, the medical examiners observed that large pieces of her skull had been driven into her cranial cavity or were missing.The Government charged petitioner with, inter alia, kidnaping with death resulting to the victim, in violation of 18 U. S. C. § 1201(a)(2), an offense punishable by life imprisonment or death. Exercising its discretion under the Federal Death Penalty Act of 1994, 18 U. S. C. § 3591 et seq., the Government decided to seek the latter sentencing option. Petitioner was tried in the District Court for the Northern District of Texas and found guilty by the jury.The District Court then conducted a separate sentencing hearing pursuant to § 3593. As an initial matter, the sentencing jury was required to find that petitioner had the requisite intent, see § 3591(a)(2); it concluded that petitioner intentionally killed his victim and intentionally inflicted serious bodily injury resulting in her death. Even on a finding of intent, however, a defendant is not death eligible unless the sentencing jury also finds that the Government377has proved beyond a reasonable doubt at least one of the statutory aggravating factors set forth at § 3592. See § 3593(e). Because petitioner was charged with committing a homicide, the Government had to prove 1 of the 16 statutory aggravating factors set forth at 18 U. S. C. § 3592(c) (1994 ed. and Supp. III) (different statutory aggravating factors for other crimes punishable by death are set forth at §§ 3592(b), (d)). The jury unanimously found that two such factors had been proved beyond a reasonable doubt-it agreed that petitioner caused the death of his victim during the commission of another crime, see § 3592(c)(1), and that he committed the offense in an especially heinous, cruel, and depraved manner, see § 3592(c)(6).1Once petitioner became death eligible, the jury had to decide whether he should receive a death sentence. In making the selection decision, the Act requires that the sentencing jury consider all of the aggravating and mitigating factors and determine whether the former outweigh the latter (or, if there are no mitigating factors, whether the aggravating factors alone are sufficient to warrant a death sentence). §§ 3591(a), 3592, 3593(e). The Act, however, requires more exacting proof of aggravating factors than mitigating onesalthough a jury must unanimously agree that the Government established the existence of an aggravating factor beyond a reasonable doubt, § 3593(c), the jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence, §§ 3593(c), (d). In addition to the1 As phrased on the Special Findings Form returned by the jury, the statutory aggravating factors read:"2(A). The defendant LOUIS JONES caused the death of Tracie Joy McBride, or injury resulting in the death of Tracie Joy McBride, which occurred during the commission of the offense of Kidnapping.""2(C). The defendant LOUIS JONES committed the offense in an especially heinous, cruel, and depraved manner in that it involved torture or serious physical abuse to Tracie Joy McBride." App.51-52.378two statutory aggravators that established petitioner's death eligibility, the jury also unanimously found two aggravators of the nonstatutory variety 2 had been proved: One set forth victim impact evidence and the other victim vulnerability evidence.3 As for mitigating factors, at least one juror found 10 of the 11 that petitioner proposed and seven jurors wrote in a factor petitioner had not raised on the Special Findings Form.42 The term "nonstatutory aggravating factor" is used to refer to any aggravating factor that is not specifically described in 18 U. S. C. § 3592. Section 3592(c) provides that the jury may consider "whether any other aggravating factor for which notice has been given exists." Pursuant to § 3593(a), when the Government decides to seek the death penalty, it must provide notice of the aggravating factors that it proposes to prove as justifying a sentence of death.3 As phrased on the Special Findings Form, the nonstatutory aggravating factors read:"3(B). Tracie Joy McBride's young age, her slight stature, her background, and her unfamiliarity with San Angelo, Texas."3(C). Tracie Joy McBride's personal characteristics and the effect of the instant offense on Tracie Joy McBride's family constitute an aggravating factor of the offense." App.53.4 The mitigating factors that the jury found as set forth on the Special Findings Form (along with the number of jurors that found for each factor in brackets) are as follows:"1. That the defendant Louis Jones did not have a significant prior criminal record." [6]"2. That the defendant Louis Jones' capacity to appreciate the wrongfulness of the defendant's conduct or to conform to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge." [2]"3. That the defendant Louis Jones committed the offense under severe mental or emotional disturbance." [1]"4. That the defendant Louis Jones was subjected to physical, sexual, and emotional abuse as a child (and was deprived of sufficient parental protection that he needed)." [4]"5. That the defendant Louis Jones served his country well in Desert Storm, Grenada, and for 22 years in the United States Army." [8]"6. That the defendant Louis Jones is likely to be a well-behaved inmate." [3]379After weighing the aggravating and mitigating factors, the jury unanimously recommended that petitioner be sentenced to death. App. 57-58. The District Court imposed sentence in accordance with the jury's recommendation pursuant to § 3594. The United States Court of Appeals for the Fifth Circuit affirmed the sentence. 132 F.3d 232 (1998). We granted certiorari, 525 U. S. 809 (1998), and now affirm.II AWe first decide the question whether petitioner was entitled to an instruction as to the consequences of jury deadlock. Petitioner requested, in relevant part, the following instruction:"In the event, after due deliberation and reflection, the jury is unable to agree on a unanimous decision as to the sentence to be imposed, you should so advise me and I will impose a sentence of life imprisonment without possibility of release ...."In the event you are unable to agree on [a sentence of] Life Without Possibility of Release or Death, but you are unanimous that the sentence should not be less than Life Without Possibility of Release, you should report that vote to the Court and the Court will sentence the defendant to Life Without the Possibility of Release." App.14-15."7. That the defendant Louis Jones is remorseful for the crime he committed." [4]"8. That the defendant Louis Jones' daughter will be harmed by the emotional trauma of her father's execution." [9]"9. That the defendant Louis Jones was under unusual and substantial internally generated duress and stress at the time of the offense." [3]"10. That the defendant Louis Jones suffered from numerous neurologicalor psychological disorders at the time of the offense." [1] Id., at 54-56.Seven jurors added petitioner's ex-wife as a mitigating factor without further elaboration. Id., at 56.380In petitioner's view, the Eighth Amendment requires that the jurors be instructed as to the effect of their inability to agree. He alternatively argues that we should invoke our supervisory power over the federal courts and require that such an instruction be given.Before we turn to petitioner's Eighth Amendment argument, a question of statutory interpretation calls for our attention. The Fifth Circuit held that the District Court did not err in refusing petitioner's requested instruction because it was not substantively correct. See 132 F. 3d, at 242-243. According to the Court of Appeals, § 3593(b)(2)(C), which provides that a new jury shall be impaneled for a new sentencing hearing if the guilt phase jury is discharged for "good cause," requires the District Court to impanel a second jury and hold a second sentencing hearing in the event of jury deadlock. Id., at 243. The Government interprets the statute the same way (although its reading is more nuanced) and urges that the judgment below be affirmed on this ground.Petitioner, however, reads the Act differently. In his view, whenever the jury reaches a result other than a unanimous verdict recommending a death sentence or life imprisonment without the possibility of release, the duty of sentencing falls upon the district court pursuant to § 3594, which reads:"Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release."381Petitioner's argument is based on his construction of the term "[o]therwise." He argues that this term means that when the jury, after retiring for deliberations, reports itself as unable to reach a unanimous verdict, the sentencing determination passes to the court.As the dissent also concludes, post, at 417-418, petitioner's view of the statute is the better one. The phrase "good cause" in § 3593(b)(2)(C) plainly encompasses events such as juror disqualification, but cannot be read so expansively as to include the jury's failure to reach a unanimous decision. Nevertheless, the Eighth Amendment does not require that the jurors be instructed as to the consequences of their failure to agree.To be sure, we have said that the Eighth Amendment requires that a sentence of death not be imposed arbitrarily. See, e. g., Buchanan v. Angelone, 522 U. S. 269, 275 (1998). In order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon an individualized inquiry. Ibid. The instruction that petitioner requested has no bearing on what we have called the "eligibility phase" of the capital sentencing process. As for what we have called the "selection phase," our cases have held that in order to satisfy the requirement that capital sentencing decisions rest upon an individualized inquiry, a scheme must allow a "broad inquiry" into all "constitutionally relevant mitigating evidence." Id., at 276. Petitioner does not argue, nor could he, that the District Court's failure to give the requested instruction prevented the jury from considering such evidence.In theory, the District Court's failure to instruct the jury as to the consequences of deadlock could give rise to an Eighth Amendment problem of a different sort: We also have held that a jury cannot be "affirmatively misled regarding its382role in the sentencing process." Romano v. Oklahoma, 512 U. S. 1, 9 (1994). In no way, however, was the jury affirmatively misled by the District Court's refusal to give petitioner's proposed instruction. The truth of the matter is that the proposed instruction has no bearing on the jury's role in the sentencing process. Rather, it speaks to what happens in the event that the jury is unable to fulfill its role-when deliberations break down and the jury is unable to produce a unanimous sentence recommendation. Petitioner's argument, although less than clear, appears to be that a death sentence is arbitrary within the meaning of the Eighth Amendment if the jury is not given any bit of information that might possibly influence an individual juror's voting behavior. That contention has no merit. We have never suggested, for example, that the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process. On the contrary, we have long been of the view that "[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves." Allen v. United States, 164 U. S. 492, 501 (1896).5 We further have recognized that in a capital sentencing proceeding, the Government has "a strong interest in having the jury express the conscience of the community on the ultimate question of life or death." Lowenfield v. Phelps, 484 U. S. 231, 238 (1988) (citation and internal quotation marks omitted). We are of the view that a charge to the jury of the sort proposed by petitioner might well have the effect of undermining this strong governmental interest.65 We have thus approved of the use of a supplemental charge to encourage a jury reporting itself as deadlocked to engage in further deliberations, see Allen v. United States, 164 U. S., at 501, even capital sentencing juries, see Lowenfield v. Phelps, 484 U. S. 231, 237-241 (1988).6 It is not insignificant that the Courts of Appeals to have addressed this question, as far as we are aware, are uniform in rejecting the argument that the Constitution requires an instruction as to the consequences of a jury's inability to agree. See, e. g., Coe v. Bell, 161 F.3d 320, 339-340383We similarly decline to exercise our supervisory powers to require that an instruction on the consequences of deadlock be given in every capital case. In drafting the Act, Congress chose not to require such an instruction. Cf. § 3593(f) (district court "shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be"). Petitioner does point us to a decision from the New Jersey Supreme Court requiring, in an exercise of that court's supervisory authority, that the jury be informed of the sentencing consequences of nonunanimity. See New Jersey v. Ramseur, 106 N. J. 123, 304-315, 524 A. 2d 188, 280-286 (1987). Of course, New Jersey's practice has no more relevance to our decision than the power to persuade. Several other States have declined to require a similar instruction. See, e. g., North Carolina v. McCarver, 341 N. C. 364, 394, 462 S. E. 2d 25, 42 (1995); Brogie v. Oklahoma, 695 P. 2d 538,547 (Okla. Crim. App. 1985); Calhoun v. Maryland, 297 Md. 563, 593-595, 468 A. 2d 45, 58-60 (1983); Coulter v. Alabama, 438 So. 2d 336, 346 (Ala. Crim. App. 1982); Justus v. Virginia, 220 Va. 971, 979, 266 S. E. 2d 87, 92-93 (1980). We find the reasoning of the Virginia Supreme Court in Justus far more persuasive than that of the New Jersey Supreme Court, especially in light of the strong governmental interest that we have recognized in having the jury render a unanimous sentence recommendation:(CA6 1998); Green v. French, 143 F.3d 865,890 (CA4 1998); United States v. Chandler, 996 F.2d 1073, 1088-1089 (CAll 1993); Evans v. Thompson, 881 F.2d 117, 123-124 (CA4 1989). Indeed, the Fifth Circuit, in the alternative, reached the same conclusion in this very case. See 132 F.3d 232, 245 (1998).384"The court properly refused an instruction offered by the defendant which would have told the jury that if it could not reach agreement as to the appropriate punishment, the court would dismiss it and impose a life sentence. While this was a correct statement of law it concerned a procedural matter and was not one which should have been the subject of an instruction. It would have been an open invitation for the jury to avoid its responsibility and to disagree." Id., at 979, 266 S. E. 2d, at 92.In light of the legitimate reasons for not instructing the jury as to the consequences of deadlock, and in light of congressional silence, we will not exercise our supervisory powers to require that an instruction of the sort petitioner sought be given in every case. Cf. Shannon v. United States, 512 U. S. 573, 587 (1994).BPetitioner further argues that the jury was led to believe that if it could not reach a unanimous sentence recommendation he would receive a judge-imposed sentence less severe than life imprisonment, and his proposed instruction as to the consequences of deadlock was necessary to correct the jury's erroneous impression. Moreover, he contends that the alleged confusion independently warrants reversal of his sentence under the Due Process Clause, the Eighth Amendment, and the Act itself. He grounds his due process claim in the assertion that sentences may not be based on materially untrue assumptions, his Eighth Amendment claim in his contention that the jury is entitled to accurate sentencing information, and his statutory claim in an argument that jury confusion over the available sentencing options constitutes an "arbitrary factor" under § 3595(c)(2)(A).To put petitioner's claim in the proper context, we must briefly review the jury instructions and sentencing proce-385dures used at trial. After instructing the jury on the aggravating and mitigating factors and explaining the process of weighing those factors, the District Court gave the following instructions pertaining to the jury's sentencing recommendation:"Based upon this consideration, you the jury, by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without the possibility of release, or sentenced to some other lesser sentence."If you unanimously conclude that the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of any mitigating factors, that the aggravating factors are themselves sufficient to justify a sentence of death, you may recommend a sentence of death. Keep in mind, however, that regardless of your findings with respect to aggravating and mitigating factors, you are never required to recommend a death sentence."If you recommend the imposition of a death sentence, the court is required to impose that sentence. If you recommend a sentence of life without the possibility of release, the court is required to impose that sentence. If you recommend that some other lesser sentence be imposed, the court is required to impose a sentence that is authorized by the law. In deciding what recommendation to make, you are not to be concerned with the question of what sentence the defendant might receive in the event you determine not to recommend a death sentence or a sentence of life without the possibility of release. That is a matter for the court to decide in the event you conclude that a sentence of death or life without the possibility of release should not be recommended." App.43-44.386The District Court also provided the jury with four decision forms on which to record its recommendation.7 In its instructions explaining those forms, the District Court told the jury that its choice of form depended on its recommendation:"The forms are self-explanatory: Decision Form A should be used if you determine that a sentence of death should not be imposed because the government failed to prove beyond a reasonable doubt the existence of the required intent on the part of the defendant or a required aggravating factor. Decision Form B should be used if you unanimously recommend that a sentence of death should be imposed. Decision Form C or Decision Form D should be used if you determine that a sentence of death should not be imposed because: (1) you do not unanimously find that the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist; (2) you do not unanimously find that the aggravating factor or factors found to exist are7 The decision forms read as follows:"DECISION FORM A"We the jury have determined that a sentence of death should not be imposed because the government has failed to prove beyond a reasonable doubt the existence of the required intent on the part of the defendant or a required aggravating factor.""DECISION FORM B"Based upon consideration of whether the aggravating factor or factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of any mitigating factors, whether the aggravating factor or factors are themselves sufficient to justify a sentence of death, we recommend, by unanimous vote, that a sentence of death be imposed.""DECISION FORM C"We the jury recommend, by unanimous verdict, a sentence of life imprisonment without the possibility of release.""DECISION FORM D"We the jury recommend some other lesser sentence." App. 57-59.387themselves sufficient to justify a sentence of death where no mitigating factor has been found to exist; or (3) regardless of your findings with respect to aggravating and mitigating factors you are not unanimous in recommending that a sentence of death should be imposed. Decision Form C should be used if you unanimously recommend that a sentence of imprisonment for life without the possibility of release should be imposed."Decision Form D should be used if you recommend that some other lesser sentence should be imposed." Id., at 47-48.Petitioner maintains that the instructions in combination with the decision forms led the jury to believe that if it failed to recommend unanimously a sentence of death or life imprisonment without the possibility of release, then it would be required to use Decision Form D and the court would impose a sentence less than life imprisonment.8 The scope of our review is shaped by whether petitioner properly raised and preserved an objection to the instructions at trial. A party generally may not assign error to a jury instruction if he fails to object before the jury retires or to "stat[e] distinctly the matter to which that party objects and the grounds of the objection." Fed. Rule Crim. Proc. 30. These timeliness and specificity requirements apply during the sentencing phase as well as the trial. See 18 U. S. C. § 3595(c)(2)(C); see also Fed. Rules Crim. Proc. 1, 54(a). They enable a trial court to correct any instructional mis-8 Petitioner does not argue that the District Court's instructions on the lesser sentence option, standing alone, constituted reversible error although the parties agree that, after the jury found petitioner guilty of kidnaping resulting in death, the only possible sentences were death and a life sentence. See Brief for Petitioner 18-19; Brief for United States 13, n. 2; see also 18 U. S. C. § 1201. Petitioner made such an argument below; the Fifth Circuit, however, concluded that the instructions as to the lesser sentence option did not rise to the level of plain error. 132 F. 3d, at 246-248.388takes before the jury retires and in that way help to avoid the burdens of an unnecessary retrial. While an objection in a directed verdict motion before the jury retires can preserve a claim of error, Leary v. United States, 395 U. S. 6, 32 (1969), objections raised after the jury has completed its deliberations do not. See Singer v. United States, 380 U. S. 24, 38 (1965); Lopez v. United States, 373 U. S. 427, 436 (1963); cf. United States v. Socony- Vacuum Oil Co., 310 U. S. 150, 238-239 (1940). Nor does a request for an instruction before the jury retires preserve an objection to the instruction actually given by the court. Otherwise, district judges would have to speculate on what sorts of objections might be implied through a request for an instruction and issue rulings on "implied" objections that a defendant never intends to raise. Such a rule would contradict Rule 30's mandate that a party state distinctly his grounds for objection.Petitioner did not voice the objections to the instructions and decision forms that he now raises before the jury retired. See App. 16-33. While Rule 30 could be read literally to bar any review of petitioner's claim of error, our decisions instead have held that an appellate court may conduct a limited review for plain error. Fed. Rule Crim. Proc. 52(b); Johnson v. United States, 520 U. S. 461, 465-466 (1997); United States v. Olano, 507 U. S. 725, 731-732 (1993); Lopez, supra, at 436-437; Namet v. United States, 373 U. S. 179, 190-191 (1963). Petitioner, however, contends that the Federal Death Penalty Act creates an exception. He relies on language in the Act providing that an appellate court shall remand a case where it finds that "the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor." § 3595(c)(2)(A). According to petitioner, the alleged jury confusion over the available sentencing options is an arbitrary factor and thus warrants resentencing even if he did not properly preserve the objection.This argument rests on an untenable reading of the Act.The statute does not explicitly announce an exception to389plain-error review, and a congressional intent to create such an exception cannot be inferred from the overall scheme. Statutory language must be read in context and a phrase "gathers meaning from the words around it." Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); see also Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995). Here, the same subsection that petitioner relies upon further provides that reversal is warranted where "the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure." § 3595(c)(2)(C). This language makes clear that Congress sought to impose a timely objection requirement at sentencing and did not intend to equate the phrase "arbitrary factor" with legal error. Petitioner's broad interpretation of § 3595(c)(2)(A) would drain § 3595(c)(2)(C) of any independent meaning.We review the instructions, then, for plain error. Under that review, relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights. Johnson, supra, at 467; Olano, supra, at 732. Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(b) sparingly. See United States v. Young, 470 U. S. 1, 15 (1985); United States v. Frady, 456 U. S. 152, 163, and n. 14 (1982); cf. Henderson v. Kibbe, 431 U. S. 145, 154 (1977) ("It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court"). An appellate court should exercise its discretion to correct plain error only if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Olano, supra, at 732 (internal quotation marks omitted); Young, supra, at 15; United States v. Atkinson, 297 U. S. 157, 160 (1936).Petitioner's argument-which depends on the premise that the instructions and decision forms led the jury to believe that it did not have to recommend unanimously a lesser390sentence-falls short of satisfying even the first requirement of the plain-error doctrine, for we cannot see that any error occurred. We have considered similar claims that allegedly ambiguous instructions caused jury confusion. See, e. g., Victor v. Nebraska, 511 U. S. 1 (1994); Estelle v. McGuire, 502 U. S. 62 (1991); Boyde v. California, 494 U. S. 370 (1990). The proper standard for reviewing such claims is "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, supra, at 72 (quoting Boyde, supra, at 380); see also Victor, supra, at 6 (applying reasonable likelihood standard to direct review of state criminal conviction).9There is no reasonable likelihood that the jury applied the instructions incorrectly. The District Court did not expressly inform the jury that it would impose a lesser sentence in case of deadlock. It simply told the jury that, if it recommended a lesser sentence, the court would impose a sentence "authorized by the law." App. 44. Nor did the District Court expressly require the jury to select Decision Form D if it could not reach agreement. Instead, it exhorted the jury "to discuss the issue of punishment with one9 Petitioner concedes that the Boyde standard applies to the extent that he is advancing a constitutional claim, but relying on our prior decision in Andres v. United States, 333 U. S. 740, 752 (1948), he contends that a more lenient standard applies to the extent that he seeks relief under the statute directly. Our decisions in Boyde and Estelle, however, foreclose that reading of Andres. In Boyde we noted that our prior decisions, including Andres, had been "less than clear" in articulating a single workable standard for evaluating claims that an instruction prevented the jury's consideration of constitutionally relevant evidence. 494 U. S., at 378. In order to supply "a single formulation for this Court and other courts to employ in deciding this kind of federal question," we announced the "reasonable likelihood" standard. Id., at 379. We made this same point later in Estelle, noting that "[i]n Boyde ... we made it a point to settle on a single standard of review for jury instructions-the 'reasonable likelihood' standard-after considering the many different phrasings that had previously been used by this Court." 502 U. S., at 72-73, n. 4.391another in an effort to reach agreement, if you can do so." Id., at 46.Notwithstanding the absence of an explicit instruction on the consequences of nonunanimity, petitioner identifies several passages which, he believes, support the inference that the jury was confused on this point. He trains on that portion of the instructions telling the jurors that the court would decide the sentence if they did not recommend a sentence of death or life without the possibility of release. Petitioner argues that this statement, coupled with two earlier references to a "lesser sentence" option, caused the jurors to infer that the District Court would impose a lesser sentence if they could not unanimously agree on a sentence of death or life without the possibility of release. He maintains that this inference is strengthened by a later instruction: "In order to bring back a verdict recommending the punishment of death or life without the possibility of release, all twelve of you must unanimously vote in favor of such specific penalty." Id., at 45. According to petitioner, the failure to mention the "lesser sentence" option in this statement strongly implied that, in contradistinction to the first two options, the "lesser sentence" option did not require jury unanimity.Petitioner parses these passages too finely. Our decisions repeatedly have cautioned that instructions must be evaluated not in isolation but in the context of the entire charge. See, e. g., Bryan v. United States, 524 U. S. 184, 199 (1998); United States v. Park, 421 U. S. 658, 674 (1975); Cupp v. Naughten, 414 U. S. 141, 147 (1973); Boyd v. United States, 271 U. S. 104, 107 (1926). We agree with the Fifth Circuit that when these passages are viewed in the context of the entire instructions, they lack ambiguity and cannot be given the reading that petitioner advances. See 132 F. 3d, at 244. We previously have held that instructions that might be ambiguous in the abstract can be cured when read in conjunction with other instructions. Bryan, supra, at 199; Victor,392supra, at 14-15; Estelle, supra, at 74-75. Petitioner's claim is far weaker than those we evaluated in Bryan, Victor, and Estelle because the jury in this case received an explicit instruction that it had to be unanimous. Just prior to its admonition that the jury should not concern itself with the ultimate sentence if it does not recommend death or life without the possibility of release, the trial court expressly instructed the jury in unambiguous language that any sentencing recommendation had to be by a unanimous vote. Specifically, it stated that "you the jury, by unanimous vote, shall recommend whether the defendant should be sentenced to death, sentenced to life imprisonment without the possibility of release, or sentenced to some other lesser sentence." App.43. Other instructions, by contrast, specified when the jury did not have to act unanimously. For example, the District Court explicitly told the jury that its findings on the mitigating circumstances, unlike those on the aggravating circumstances, did not have to be unanimous.1o To be sure, the District Court could have used the phrase "unanimously" more frequently. But when read alongside an unambiguous charge that any sentencing recommendation be unanimous and other instructions explicitly identifying when the jury need not be unanimous, the passages identified by petitioner do not create a reasonable likelihood that the jury believed that deadlock would cause the District Court to impose a lesser sentence.10 The relevant portion of the instruction read: "You will also recall that I previously told you that all twelve of you had to unanimously agree that a particular aggravating circumstance was proved beyond a reasonable doubt before you consider it. Quite the opposite is true with regard to mitigating factors. A finding with respect to a mitigating factor may be made by anyone or more of the members of the jury, and any member who finds by a preponderance of the evidence the existence of a mitigating factor may consider such factor established for his or her weighing of aggravating and mitigating factors regardless of the number of other jurors who agree that such mitigating factor has been established." App. 43.393Petitioner also relies on alleged ambiguities in the decision forms and the explanatory instructions. He stresses the fact that Decision Form D (lesser sentence recommendation), unlike Decision Forms B (death sentence) and C (life without the possibility of release), did not contain the phrase "by unanimous vote" and required only the fore person's signature. These features of Decision Form D, according to petitioner, led the jury to conclude that nonunanimity would result in a lesser sentence. According to petitioner, the instructions accompanying Decision Form D, unlike those respecting Decision Forms Band C, did not mention unanimity, thereby increasing the likelihood of confusion.With respect to this aspect of petitioner's argument, we agree with the Fifth Circuit that "[a]lthough the verdict forms standing alone could have persuaded a jury to conclude that unanimity was not required for the lesser sentence option, any confusion created by the verdict forms was clarified when considered in light of the entire jury instruction." 132 F. 3d, at 245. The District Court's explicit instruction that the jury had to be unanimous and its exhortation to the jury to discuss the punishment and attempt to reach agreement, App. 46, make it doubtful that the jury thought it was compelled to employ Decision Form D in the event of disagreement.Petitioner also places too much weight on the fact that Decision Form D required only the foreperson's signature. Although it only contained a space for the foreperson's signature, Form D, like the others, used the phrase "We the jury recommend ... ," thereby signaling that Form D represented the jury's recommendation. Id., at 59. Moreover, elsewhere, the jury foreperson alone signed the jury forms to indicate the jury's unanimous agreement. Specifically, only the jury foreperson signed the special findings form on which the jury was required to indicate its unanimous agreement that an aggravating factor had been proved beyond a reasonable doubt. Id., at 51-53. In these circumstances, we do394not think that the decision forms or accompanying instructions created a reasonable likelihood of confusion over the effect of nonunanimity.llEven assuming, arguendo, that an error occurred (and that it was plain), petitioner cannot show that it affected his substantial rights. Any confusion among the jurors over the effect of a lesser sentence recommendation was allayed by the District Court's admonition that the jury should not concern itself with the effect of such a recommendation. See supra, at 390 (quoting App. 44). The jurors are presumed to have followed these instructions. See Shannon, 512 U. S., at 585; Richardson v. Marsh, 481 U. S. 200, 206 (1987). Even if the jurors had some lingering doubts about the effect of deadlock, therefore, the instructions made clear that they should set aside their concerns and either report that they were unable to reach agreement or recommend a lesser sentence if they believed that this was the only option.Moreover, even assuming that the jurors were confused over the consequences of deadlock, petitioner cannot show the confusion necessarily worked to his detriment. It is just as likely that the jurors, loath to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence. Where the effect of an al-11 Petitioner also urges us to take cognizance of two affidavits prepared after the jury had returned its sentencing recommendation. One affidavit, attached to petitioner's new trial motion, was executed by an investigator for the federal public defender after a juror had contacted the public defender's office. Id., at 66-68. The other affidavit, attached to petitioner's motion to reconsider the District Court's order denying his motion for a new trial, was executed by one of the jurors. Id., at 78-80. The Fifth Circuit ruled that petitioner could not rely on these affidavits to undermine the jury's sentencing recommendation. 132 F. 3d, at 245-246. Petitioner did not raise this independent determination in any of his questions presented, and we do not believe that the issue is fairly included within them. We therefore decline review of this ruling by the Fifth Circuit. See this Court's Rule 14.1(a); Berkemer v. McCarty, 468 U. S. 420, 443, n. 38 (1984).395leged error is so uncertain, a defendant cannot meet his burden of showing that the error actually affected his substantial rights. Cf. Romano, 512 U. S., at 14. In Romano, we considered a similar argument, namely, that jurors had disregarded a trial judge's instructions and given undue weight to certain evidence. In rejecting that argument, we noted that, even assuming that the jury disregarded the trial judge's instructions, "[i]t seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so." Ibid. Any speculation on the effect of a lesser sentence recommendation, like the evidence in Romano, would have had such an indeterminate effect on the outcome of the proceeding that we cannot conclude that any alleged error in the District Court's instructions affected petitioner's substantial rights. See Park, 421 U. S., at 676; Lopez, 373 U. S., at 436-437.III AApart from the claimed instructional error, petitioner argues that the nonstatutory aggravating factors found and considered by the jury, see n. 2, supra, were vague, overbroad, and duplicative in violation of the Eighth Amendment, and that the District Court's error in allowing the jury to consider them was not harmless beyond a reasonable doubt.The Eighth Amendment, as the Court of Appeals correctly recognized, see 132 F. 3d, at 250, permits capital sentencing juries to consider evidence relating to the victim's personal characteristics and the emotional impact of the murder on the victim's family in deciding whether an eligible defendant should receive a death sentence. See Payne v. Tennessee, 501 U. S. 808, 827 (1991) ("A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be im-396Opinion of THOMAS, J.posed. There is no reason to treat such evidence differently than other relevant evidence is treated"). Petitioner does not dispute that, as a general matter, such evidence is appropriate for the sentencing jury's consideration. See Reply Brief for Petitioner 15. His objection is that the two nonstatutory aggravating factors were duplicative, vague, and overbroad so as to render their use in this case unconstitutional, a point with which the Fifth Circuit agreed, 132 F. 3d, at 250-251, although it ultimately ruled in the Government's favor on the ground that the alleged error was harmless beyond a reasonable doubt, id., at 251-252.The Government here renews its argument that the nonstatutory aggravators in this case were constitutionally valid. At oral argument, however, it was suggested that this case comes to us on the assumption that the nonstatutory aggravating factors were invalid because the Government did not cross-appeal on the question. Tr. of Oral Arg. 25. As the prevailing party, the Government is entitled to defend the judgment on any ground that it properly raised below. See, e. g., El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 479 (1999); Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 364 (1994) ("A prevailing party need not cross-petition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment"). It further was suggested that because we granted certiorari on the Government's rephrasing of petitioner's questions and because the third question-"whether the court of appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt"-presumes error, we must assume the nonstatutory aggravating factors were erroneous. Tr. of Oral Arg. 25-27. We are not convinced that the reformulated question presumes error. The question whether the nonstatutory aggravating factors were constitutional is fairly included within the third question pre-397sented-we might answer "no" to the question "[w]hether the Court of Appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt," 525 U. S. 809 (1998), by explaining that the Fifth Circuit was incorrect in holding that there was error. Without a doubt, the Government would have done better to call our attention to the fact that it planned to argue that the nonstatutory aggravating factors were valid at the petitioning stage. But it did not affirmatively concede that the nonstatutory aggravators were invalid, see Brief in Opposition 18-22, and absent such a concession, we think that the Government's argument is properly presented.1212 The dissent would treat this aspect of the Government's argument as waived. Post, at 420-421, n. 24. As JUSTICE GINSBURG explained, for a unanimous Court, in Caterpillar Inc. v. Lewis, 519 U. S. 61 (1996): "Under this Court's Rule 15.2, a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari 'may be deemed waived.''' Id., at 75, n. 13 (emphasis added). But we have not done so when the issue not raised in the brief in opposition was "predicate to an intelligent resolution of the question presented." Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted); see also Caterpillar, 519 U. S., at 75, n. 13. In those instances, we have treated the issue not raised in opposition as fairly included within the question presented. This is certainly such a case. Assessing the error (including whether there was error at all) is essential to an intelligent resolution of whether any such error was harmless. Moreover, here, as in Caterpillar, "[t]he parties addressed the issue in their briefs and at oral argument." Ibid. By contrast, in the cases that the dissent looks to for support for its position, there were good reasons to decline to exercise our discretion. In Roberts v. Galen of Va., Inc., 525 U. S. 249, 253-254 (1999) (per curiam), the "claims [we declined to consider did] not appear to have been sufficiently developed below for us to assess them," and in South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999), the argument respondent raised for the first time in its merits brief was "so far-reaching an argument" that "[w]e would normally expect notice [of it]," especially when, unlike this case, the respondent's argument did not appear to have been raised or considered below.398Opinion of THOMAS, J.We first address petitioner's contention that the two nonstatutory aggravating factors were impermissibly duplicative. The Fifth Circuit reasoned that "[t]he plain meaning of the term 'personal characteristics,' used in [nonstatutory aggravator] 3(C), necessarily includes 'young age, slight stature, background, and unfamiliarity,' which the jury was asked to consider in 3(B)." 132 F. 3d, at 250. The problem, the court thought, was that this duplication led to "double counting" of aggravating factors. Following a Tenth Circuit decision, United States v. McCullah, 76 F.3d 1087, 1111 (1996), the Fifth Circuit was of the view that in a weighing scheme, "double counting" has a tendency to skew the process so as to give rise to the risk of an arbitrary, and thus unconstitutional, death sentence. 132 F. 3d, at 251. In the Fifth Circuit's words, there may be a thumb on the scale in favor of death "[i]f the jury has been asked to weigh the same aggravating factor twice." Ibid.We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the "double counting" theory that the Tenth Circuit advanced in McCullah 13 and the Fifth Circuit appears to have followed here. What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. See Stringer v. Black, 503 U. S. 222, 232 (1992). Petitioner's argument (and the reasoning of the Fifth and Tenth Circuits) would have us reach a quite different proposition-that if two aggravating factors are "duplicative," then the weighing process necessarily is skewed, and the factors are therefore invalid.Even accepting, for the sake of argument, petitioner's "double counting" theory, there are nevertheless several13 The Tenth Circuit, in a decision subsequent to McCullah, has emphasized that factors do not impermissibly overlap unless one "necessarily subsumes" the other. Cooks v. Ward, 165 F.3d 1283, 1289 (1998).399problems with the Fifth Circuit's application of the theory in this case. The phrase "personal characteristics" as used in factor 3(C) does not obviously include the specific personal characteristics listed in 3(B)-"young age, her slight stature, her background, and her unfamiliarity with San Angelo"especially in light of the fact that 3(C) went on to refer to the impact of the crime on the victim's family. In the context of considering the effect of the crime on the victim's family, it would be more natural to understand "personal characteristics" to refer to those aspects of the victim's character and personality that her family would miss the most. More important, to the extent that there was any ambiguity arising from how the factors were drafted, the Government's argument to the jury made clear that 3(B) and 3(C) went to entirely different areas of aggravation-the former clearly went to victim vulnerability while the latter captured the victim's individual uniqueness and the effect of the crime on her family. See, e. g., 25 Record 2733-2734 ("[Y]ou can consider [the victim's] young age, her slight stature, her background, her unfamiliarity with the San Angelo area .... She is barely five feet tall [and] weighs approximately 100 pounds. [She is] the ideal victim"); id., at 2734 ("[Y]ou can consider [the victim's] personal characteristics and the effects of the instant offense on her family .... You heard about this young woman, you heard about her from her mother, you heard about her from her friends that knew her. She was special, she was unique, she was loving, she was caring, she had a lot to offer this world"). As such, even if the phrase "personal characteristics" as used in factor 3(C) was understood to include the specific personal characteristics listed in 3(B), the factors as a whole were not duplicativeat best, certain evidence was relevant to two different aggravating factors. Moreover, any risk that the weighing process would be skewed was eliminated by the District Court's instruction that the jury "should not simply count the number of aggravating and mitigating factors and reach a deci-400Opinion of THOMAS, J.sion based on which number is greater [but rather] should consider the weight and value of each factor." App.45.2We also are of the view that the Fifth Circuit incorrectly concluded that factors 3(B) and 3(C) were unconstitutionally vague. In that court's view, the nonstatutory aggravating factors challenged here "fail[ed] to guide the jury's discretion, or [to] distinguish this murder from any other murder." 132 F. 3d, at 251. The Court of Appeals, relying on our decision in Maynard v. Cartwright, 486 U. S. 356, 361-362 (1988), also was of the opinion that "[t]he use of the terms 'background,' 'personal characteristics,' and 'unfamiliarity' without further definition or instruction left the jury with ... open-ended discretion." 132 F. 3d, at 251 (internal quotation marks omitted).Ensuring that a sentence of death is not so infected with bias or caprice is our "controlling objective when we examine eligibility and selection factors for vagueness." Tuilaepa v. California, 512 U. S. 967, 973 (1994). Our vagueness review, however, is "quite deferential." Ibid. As long as an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass constitutional muster. Ibid. Assessed under this deferential standard, the factors challenged here surely are not vague. The jury should have had no difficulty understanding that factor 3(B) was designed to ask it to consider whether the victim was especially vulnerable to petitioner's attack. Nor should it have had difficulty comprehending that factor 3(C) asked it to consider the victim's personal traits and the effect of the crime on her family.14 Even if the factors as written14 Petitioner argues that the term "personal characteristics" was so vague that the jury may have thought it could consider the victim's race and the petitioner's race under factor 3(e). In light of the remainder of the factor and the Government's argument with respect to the factor, we fail to see that possibility. In any event, in accordance with the Death401were somewhat vague, the Fifth Circuit was wrong to conclude that the factors were not given further definition, see 132 F. 3d, at 251; as we have explained, the Government's argument made absolutely clear what each nonstatutory factor meant. 153Finally, we turn to petitioner's contention that the challenged nonstatutory factors were overbroad. An aggravating factor can be overbroad if the sentencing jury "fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty." Arave v. Creech, 507 U. S. 463, 474 (1993). We have not, however, specifically considered what it means for a factor to be overbroad when it is important only for selection purposes and especially when it sets forth victim vulnerability or victim impact evidence. Of course, every murder will have an impact on the victim's family and friends and victims are often chosen because of their vulnerability. It might seem, then, that the factors 3(B) and 3(C) apply to every eligible defendant and thus fall within the Eighth Amendment's proscription against overbroad factors. But that cannot be correct; if it were, we would not have decided Payne as we did. Even though the concepts of victim impact and victim vulnerability may well be relevant in every case, evidence of victim vulnerability and victim impact in a particular case is inherently individualized. And such evidence is surely relevant to the selection phase decision, given that the sentencerPenalty Act's explicit command in § 3593(f), the District Court instructed the jury not to consider race at all in reaching its decision. App. 47. Jurors are presumed to have followed their instructions. See Richardson15We reiterate the point we made in Tuilaepa v. California, 512 U. S. 967 (1994)-we have held only a few, quite similar factors vague, see, e. g., Maynard v. Cartwright, 486 U. S. 356 (1988) (whether murder was "especially heinous, atrocious, or cruel"), while upholding numerous other factors against vagueness challenges, see 512 U. S., at 974 (collecting cases).402should consider all of the circumstances of the crime in deciding whether to impose the death penalty. See Tuilaepa, 512 U. S., at 976.What is of common importance at the eligibility and selection stages is that "the process is neutral and principled so as to guard against bias or caprice in the sentencing decision." Id., at 973. So long as victim vulnerability and victim impact factors are used to direct the jury to the individual circumstances of the case, we do not think that principle will be disturbed. Because factors 3(B) and 3(C) directed the jury to the evidence specific to this case, we do not think that they were overbroad in a way that offended the Constitution.BThe error in this case, if any, rests in loose drafting of the nonstatutory aggravating factors; as we have made clear, victim vulnerability and victim impact evidence are appropriate subjects for the capital sentencer's consideration. Assuming that use of these loosely drafted factors was indeed error, we conclude that the error was harmless.Harmless-error review of a death sentence may be performed in at least two different ways. An appellate court may choose to consider whether absent an invalid factor, the jury would have reached the same verdict or it may choose instead to consider whether the result would have been the same had the invalid aggravating factor been precisely defined. See Clemons v. Mississippi, 494 U. S. 738, 753-754 (1990). The Fifth Circuit chose to perform the first sort of analysis, and ultimately concluded that the jury would have returned a recommendation of death even had it not considered the two supposedly invalid nonstatutory aggravating factors:"After removing the offensive non-statutory aggravating factors from the balance, we are left with two403statutory aggravating factors and eleven mitigating factors to consider when deciding whether, beyond a reasonable doubt, the death sentence would have been imposed had the invalid aggravating factors never been submitted to the jury. At the sentencing hearing, the government placed great emphasis on the two statutory aggravating factors found unanimously by the juryJones caused the death of the victim during the commission of the offense of kidnapping; and the offense was committed in an especially heinous, cruel, and depraved manner in that it involved torture or serious physical abuse of the victim. Under part two of the Special Findings Form, if the jury had failed to find that the government proved at least one of the statutory aggravating factors beyond a reasonable doubt, then the deliberations would have ceased leaving the jury powerless to recommend the death penalty. Therefore, the ability of the jury to recommend the death penalty hinged on a finding of a least one statutory aggravating factor. Conversely, jury findings regarding the non-statutory aggravating factors were not required before the jury could recommend the death penalty. After removing the two non-statutory aggravating factors from the mix, we conclude that the two remaining statutory aggravating factors unanimously found by the jury support the sentence of death, even after considering the eleven mitigating factors found by one or more jurors. Consequently, the error was harmless because the death sentence would have been imposed beyond a reasonable doubt had the invalid aggravating factors never been submitted to the jury." 132 F. 3d, at 252.Petitioner claims that the court's analysis was so perfunctory as to be infirm. His argument is largely based on the following passage from Clemons: "Under these circumstances, it would require a detailed explanation based on the record for404us possibly to agree that the error in giving the invalid 'especially heinous' instruction was harmless." 494 U. S., at 753754 (emphasis added). Clemons, however, involved quite different facts. There, an "especially heinous" aggravating factor was determined to be unconstitutionally vague. The only remaining aggravating factor was that the murder was committed during a robbery for pecuniary gain. The State had repeatedly emphasized the invalid factor and said little about the valid aggravator. See id., at 753. Despite this, all that the Mississippi Supreme Court said was: "'We likewise are of the opinion beyond a reasonable doubt that the jury's verdict would have been the same with or without the "especially heinous, atrocious or cruel" aggravating circumstance.'" Ibid. (quoting Clemons v. State, 535 So. 2d 1354, 1364 (Miss. 1988)). We quite understandably required a "detailed explanation based on the record" in those circumstances.The same "detailed explanation ... on the record" that we required in Clemons may not have been necessary in this case. Cf. Sochor v. Florida, 504 U. S. 527, 540 (1992) (there is no federal requirement that state courts adopt "a particular formulaic indication" before their review for harmless error will pass scrutiny). But even if the Fifth Circuit's harmless-error analysis was too perfunctory, we think it plain, under the alternative mode of harmless-error analysis, that the error indeed was harmless beyond a reasonable doubt. See § 3595(c)(2) (federal death sentences are not to be set aside on the basis of errors that are harmless beyond a reasonable doubt). Had factors 3(B) and 3(C) been precisely defined in writing, the jury surely would have reached the same recommendation as it did. The Government's argument to the jury, see, e. g., 25 Record 2733-2734, cured the nonstatutory factors of any infirmity as written. We are satisfied that the jury in this case actually understood what each factor was designed to put before it, and therefore have405no doubt that the jury would have reached the same conclusion had the aggravators been precisely defined in writing.***For the foregoing reasons, the judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1998SyllabusJONES v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 97-9361. Argued February 22, 1999-Decided June 21, 1999Petitioner was sentenced to death for the crime of kidnaping resulting in the victim's death. Petitioner's sentence was imposed pursuant to the Federal Death Penalty Act of 1994, 18 U. S. C. § 3591 et seq. At the sentencing hearing, the District Court instructed the jury and provided it with four decision forms on which to record its sentencing recommendation. The court refused petitioner's request to instruct the jury as to the consequences of jury deadlock. The jury unanimously recommended that petitioner be sentenced to death. The District Court imposed sentence in accordance with the jury's recommendation, and the Fifth Circuit affirmed.Held: The judgment is affirmed. 132 F.3d 232, affirmed.JUSTICE THOMAS delivered the opinion of the Court with respect to Parts I, II, and III -B, concluding:1. The Eighth Amendment does not require that a jury be instructed as to the consequences of their failure to agree. Pp. 379-384.(a) As petitioner argues, the Federal Death Penalty Act requires judge sentencing when the jury, after retiring for deliberations, reports itself as unable to reach a unanimous verdict. In such a case, the sentencing duty falls upon the District Court pursuant to 18 U. S. C. § 3594. Pp. 379-381.(b) The Eighth Amendment, however, does not require that a jury be instructed as to the consequences of a breakdown in the deliberative process. Such an instruction has no bearing on the jury's role in the sentencing process. Moreover, the jury system's very object is to secure unanimity, and the Government has a strong interest in having the jury express the conscience of the community on the ultimate life or death question. A charge of the sort petitioner suggests might well undermine this strong governmental interest. In addition, Congress chose not to require such an instruction be given. The Court declines to invoke its supervisory powers over the federal courts and require that such an instruction be given in every capital case in these circumstances. Pp. 381-384.2. There is no reasonable likelihood that the jury was led to believe that petitioner would receive a court-imposed sentence less than life374Syllabusimprisonment in the event they could not recommend unanimously a sentence of death or life imprisonment without the possibility of release. Pp. 384-395.(a) Petitioner claims that the instruction pertaining to the jury's sentencing recommendation, in combination with the Decision Forms, led to confusion warranting reversal of his sentence under the Due Process Clause, the Eighth Amendment, and the Act. Because petitioner did not voice the objections that he now raises before the jury retired, see Fed. Rule Crim. Proc. 30, his claim of error is subject to a limited appellate review for plain error, e. g., Johnson v. United States, 520 U. S. 461,465-466. Pp. 384-389.(b) Under that review, relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights. Petitioner's argument falls short of satisfying even the first requirement, for no error occurred. The proper standard for reviewing claims that allegedly ambiguous instructions caused jury confusion is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. There is no such likelihood here. The District Court gave no explicit instructions on the consequences of nonunanimity; and the passages that petitioner argues led to jury confusion, when viewed in the context of the entire instructions, lack any ambiguity. Nor did the Decision Forms or their accompanying instructions create a reasonable likelihood of confusion over the effect of nonunanimity. The District Court's explicit instruction that the jury had to be unanimous and its exhortation to the jury to discuss the punishment and to attempt to reach agreement make it doubtful that the jury thought it was compelled to recommend a lesser sentence in the event of a disagreement. Even assuming, arguendo, that a plain error occurred, petitioner cannot show that it affected his substantial rights. The District Court admonished the jury not to concern itself with the effect of a lesser sentence recommendation. Moreover, assuming that the jurors were confused over the consequences of deadlock, petitioner cannot show the confusion necessarily worked to his detriment. It is just as likely that the jurors, loathe to recommend a lesser sentence, would have compromised on a life imprisonment sentence as on a death sentence. Cf. Romano v. Oklahoma, 512 U. S. 1, 14. Pp. 389-395.3. Assuming, arguendo, that the District Court erred in allowing the jury to consider nonstatutory aggravating factors that were vague, overbroad, or duplicative in violation of the Eighth Amendment, such error was harmless beyond a reasonable doubt. An appellate court may conduct harmless-error review by considering either whether absent an invalid factor, the jury would have reached the same verdict or whether the result would have been the same had the invalid aggravat-375Full Text of Opinion

1961_488

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.A grand jury returned an indictment charging the National Dairy Products Corporation with engaging"in a combination and conspiracy to eliminate price competition in the sale of milk in the Greater Kansas City market in unreasonable restraint of . . . trade and commerce, in violation of Section 1"of the Sherman Act, 15 U.S.C. § 1. Two counts incorporated by reference the alleged illegal acts of the corporation and named the appellee as codefendant. In a bill of particulars, the Government charged that the appellee had "been acting solely in his capacity as an officer, director, or agent who authorized, ordered, or did some of the acts" constituting the violation. The appellee moved for a dismissal on the ground that the indictment, as particularized by the bill, failed to charge a crime. According to appellee, the Sherman Act does not apply to corporate officers acting in a representative capacity; he contends that the statute exclusively applicable to these officers is § 14 of the Clayton Act, 15 U.S.C. § 24. Over the Government's opposition, the dismissal was ordered by the district judge. 196 F. Supp. 155. An appeal was perfected pursuant to 18 U.S.C. § 3731, and we noted probable jurisdiction. 368 U.S. 945.Although the Sherman Act has been in existence for over 70 years, and although corporate officers have been indicted under that Act for almost as long, see, e.g., United States v. Greenhut, 50 F. 469 (D.C.D. Mass.1892); United States v. Patterson, 55 F. 605 (D.C.D. Page 370 U. S. 407 Mass.1893), [Footnote 1] this question is one of first impression for this Court. The impetus for raising this issue at such a late date comes from the fact that, in 1955, the Congress raised the penalty provision in the Sherman Act from $5,000 to $50,000 without making a corresponding increase in the $5,000 penalty found in the Clayton Act.Section 1 of the Sherman Act imposes criminal sanctions upon "every person" who violates that provision, 15 U.S.C. § 1. [Footnote 2] The Government contends that a corporate officer is obviously a "person" within the Act. The appellee, however, distinguishes between a corporate officer who represents his corporation and one who acts on his own account. In the latter case, the appellee agrees that the Sherman Act applies. But, when the officer is acting solely for his corporation, the appellee contends that he is no longer a "person" within the Act. The rationale for this distinction is that the activities of an officer, however illegal and culpable, are chargeable to the corporation as the principal, but not to the individual who perpetrates them.No substantial support for such an artificial interpretation of a seemingly clear statute is provided by the legislative history. The most that can be said for the appellee's position is that the Reagan Bill, an unsuccessful competitor of the Sherman Bill, specifically included corporate Page 370 U. S. 408 officers in its penal section while the Sherman Bill had no penal section at one time. The penal provision of the Reagan Bill was offered as an amendment to the Sherman Bill, and the Senate Committee on the Judiciary then redrafted and resubmitted a bill in the form which became the Sherman Act. 21 Cong.Rec. 2731, 3152. That Act outlawed certain acts by "persons," and there is nothing to indicate that the Congress intended to restrict the meaning as applied to corporate officers. See Trailmobile Co. v. Whirls, 331 U. S. 40.The appellee points to § 8 of the Sherman Act, 15 U.S.C. § 7, which defines "person" "to include corporations and associations." He argues that, since corporations are included within the term, individual corporate officers are thereby excluded. This is a non sequitur. The mere fact that the term is given a broad construction does not alter its basic meaning, and no such inference can be drawn from the express inclusion of corporations as "persons." The reason for this inclusion is readily understandable. The doctrine of corporate criminal responsibility for the acts of the officers was not well established in 1890. See New York Central & H. R.R. Co. v. United States, 212 U. S. 481. When a criminal statute proscribed conduct by "persons," corporate defendants contended that only natural persons were included. United States v. Amedy, 11 Wheat. 392. The same issue raised in other cases was not always resolved by a unanimous Court. Beaston v. Farmers' Bank of Delaware, 12 Pet. 102. Cf. United States v. Shirey, 359 U. S. 255. The dissent by Mr. Justice Story in the Beaston case would be sufficient reason for a careful draftsman to avoid the whole problem of a provision such as § 8. Further reason for caution lay in the language found in cases then recent. Sinking-Fund Cases, 99 U. S. 700, 99 U. S. 718-719, and Canada Southern R. Co. v. Gebhard, 109 U. S. 527, 109 U. S. 542 (dissenting opinion), which distinguished between persons Page 370 U. S. 409 and corporations when considering the application of the Fourteenth Amendment's protection to "persons." See Philadelphia Fire Assn. v. New York, 119 U. S. 110, 119 U. S. 120 (dissenting opinion). Therefore, we attribute no significance to the specific inclusion of corporations in the definition of "persons" in determining whether a corporate officer is within the term.This Court was faced with the same problem in United States v. Dotterweich, 320 U. S. 277, involving the construction of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-392. An earlier version of the Act stated that the acts of a corporate officer would be chargeable both to him and to the corporation. In a 1938 revision, the statute made any "person" responsible and specifically included corporations within that term. 52 Stat. 1040. The Court of Appeals reversed the conviction of a corporate officer on the ground that only a corporation was a "person" within the Act. This Court reversed the Court of Appeals, rejecting substantially the same argument that is advanced by the appellee in this case. The reason for the rejection is equally applicable to the case at bar. No intent to exculpate a corporate officer who violates the law is to be imputed to Congress without clear compulsion; else the fines established by the Sherman Act to deter crime become mere license fees for illegitimate corporate business operations. Following Dotterweich, we construe § 1 of the Sherman Act in its common sense meaning to apply to all officers who have a responsible share in the proscribed transaction. Cf. Carolene Products Co. v. United States, 323 U. S. 18, 323 U. S. 21.This construction is supported by the decisions of the lower federal courts which considered the problem of whether corporate officers were "persons" within the Sherman Act in the interim before the passage of the Clayton Act. The most significant case is United States v. MacAndrews & Forbes Co., 149 F. 823 (C.C.S.D.N.Y 1906), Page 370 U. S. 410 in which the Court, considered the joint indictment of a corporation and some of its officers for violations of the Sherman Act. The defendants demurred to the joinder, the corporation pleading that only the human agents could be held responsible for the misdemeanor, while the officers pleaded that only the corporation was responsible. The Court refused to hold as a matter of law that either proposition was correct, because responsibility was, in each case, a matter of fact. The Court noted that the officers may or may not be convicted, depending upon whether they were personally responsible for the crime. [Footnote 3]In United States v. Winslow, 195 F. 578 (D.C.D.Mass.1912), the same contention by corporate officers was given short disposition:"The indictment, however, expressly charges them [the corporate officers] as actors, and two fundamental principles are thoroughly settled. One is that neither in the civil nor the criminal law can an officer protect himself behind a corporation where he is the actual, present, and efficient actor; and the second is that all parties active in promoting a misdemeanor, whether agents or not, are principals."195 F. at 581. Page 370 U. S. 411We have found no case between 1890 and 1914 in which a corporate officer successfully secured the dismissal of an indictment or the reversal of a conviction on the ground that he was not a "person" within the Sherman Act when he acted solely as a representative of the corporation.Unless subsequent statutes have repealed or amended this aspect of the Sherman Act, our inquiry is at an end.The appellee seeks succor in the subsequent legislative history accompanying attempts to amend the Sherman Act between 1890 and 1914. He particularly relies upon H.R. 10539, 56th Cong., 1st Sess. (1900). This bill would have expressly included corporate officers and agents in the definition of "persons" found in § 8. The report accompanying that bill stated that the existing law did not subject agents, officers, and attorneys to penalties. H.R. Rep. No. 1506, 56th Cong., 1st Sess. However, statutes are construed by the courts with reference to the circumstances existing at the time of the passage. The interpretation placed upon an existing statute by a subsequent group of Congressmen who are promoting legislation and who are unsuccessful has no persuasive significance here. United States v. Price, 361 U. S. 304, 361 U. S. 313; United States v. Turley, 352 U. S. 407, 415, n. 14; Fogarty v. United States, 340 U. S. 8, 340 U. S. 13-14; Wong Yang Sung v. McGrath, 339 U. S. 33, 339 U. S. 47; United States v. United Mine Workers, 330 U. S. 258, 330 U. S. 281-282; Gemsco, Inc., v. Walling, 324 U. S. 244, 324 U. S. 265. Logically, several equally tenable inferences could be drawn from the failure of the Congress to adopt an amendment in the light of the interpretation placed upon the existing law by some of its members, including the inference that the existing legislation already incorporated the offered change.In 1914, the Congress passed "An Act To supplement existing laws against unlawful restraints and monopolies, Page 370 U. S. 412 and for other purposes," commonly called the Clayton Act. Section 14 of that Act provided:"That whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation, and such violation shall be deemed a misdemeanor, and upon conviction therefor of any such director, officer, or agent he shall be punished by a fine of not exceeding $5,000 or by imprisonment for not exceeding one year, or by both, in the discretion of the court."38 Stat. 736.The appellee contends that § 14 is an entirely new provision added by Congress to provide for the criminal responsibility of corporate officers who act in a representative capacity. The Government contends that § 14 is merely supplemental, and that appellee's construction results in an implied repeal of part of § 1 of the Sherman Act. [Footnote 4]Appellee asserts that § 14 would not literally apply to the officer who acted on his own account because, his misconduct would not be attributed to the corporation. From this premise, he argues that, since § 14 of the Clayton Act applies only to an officer acting in a representative capacity, § 1 of the Sherman Act only applies to an officer acting on his own account.We do not agree. The reasons for § 14 are sufficiently revealed by the legislative history. The provision originated Page 370 U. S. 413 in the House, and, after conferences with the Senate, survived substantially intact. The reports provide no assistance, but the debates do. Whether any supplementary legislation was necessary was the essence of the debates. As Senate Shields, an opponent, said,"[§ 14] is merely a reenactment of the Sherman law, sections 1, 2, and 3. In other words, it has always been held that the officers of corporations violating the law were punishable under these sections. . . ."51 Cong.Rec. 14214. See 51 Cong.Rec. 9079, 9080, 9169, 9201, 9202, 9595, 9610, 14225, 15820, 16143. The proponents of the bill agreed that the Sherman Act did cover officers whose conduct constituted the offense (without distinction as to the capacity in which the officer was acting), but were disappointed in the sympathy shown to corporate officers by judges, juries, and prosecutors. Second, the proponents feared that the present Sherman Act did not cover officers who merely authorized or ordered the commission of the offense. These ideas were clearly expressed by Representative Floyd, a House manager:"The purpose we had was to make it clear that, when a corporation had been guilty, those officers, agents, and directors of the corporation that either authorized, ordered, or did the thing prohibited should be guilty. Under the existing law, and without that provision of the statute, the person who did the things would undoubtedly be guilty; but in the enforcement of the criminal provisions of the Sherman law, experience has demonstrated that both juries and courts are slow to convict men who have simply done acts authorized or ordered by some officers of the concern higher up, and the words 'authorized' and 'ordered' were introduced to reach the real offenders, the men who caused the things to be done. . . ."51 Cong.Rec. 9609. See 51 Cong.Rec. 9074, 9185, 9676, 9677, 9678, 9679, 16317. Page 370 U. S. 414 Third, the proponents were fearful that the Sherman Act might not cover the activities of an officer which made a single "link" in the "chain" of events constituting the antitrust violation. Hence, the provision fixing responsibility for an act constituting "in whole or in part" the violations. 51 Cong.Rec. 9679, 16275, 16317.We examine this legislative history in order to ascertain the intent of Congress as to the ultimate purpose of § 14 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586, 353 U. S. 591-592; Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 341 U. S. 390-395; Federal Trade Comm'n v. Morton Salt Co., 334 U. S. 37, 334 U. S. 43-46, 334 U. S. 49; Corn Products Refining Co. v. Federal Trade Comm'n, 324 U. S. 726, 324 U. S. 734-737. How members of the 1914 Congress may have interpreted the 1890 Act is not of weight for the purpose of construing the Sherman Act. Federal Housing Administration v. Darlington, Inc., 358 U. S. 84; Rainwater v. United States, 356 U. S. 590; Koshkonong v. Burton, 104 U. S. 668; Ogden v. Blackledge, 2 Cranch 272, 6 U. S. 277. See United States v. Stafoff, 260 U. S. 477; Penn Mutual Life Ins. Co. v. Lederer, 252 U. S. 523; Levindale Lead & Zinc Mining Co. v. Coleman, 241 U. S. 432; Talbot v. Seeman, 1 Cranch 1. But see Sioux Tribe v. United States, 316 U. S. 317; Stockdale v. Insurance Co., 20 Wall. 323, 87 U. S. 331 (separate opinion); United States v. Freeman, 3 How. 556. Cf. United States v. E. I. du Pont de Nemours & Co., 353 U. S. 586.Section 14 was intended to be a reaffirmation of the Sherman Act's basic penal provisions and a mandate to prosecutors to bring all responsible persons to justice. In the light of the congressional purpose revealed on the face of the statute and by the legislative history, this Court cannot construe § 14 as a restriction of § 1 of the Sherman Act. Thus, insofar as § 14 relates to the corporate officer who participants in the Sherman Act violation, whether or not in a representative capacity, no change was either intended or effected. Page 370 U. S. 415The cases subsequent to the Clayton Act reveal an understanding in accord with our own. The Government continued to seek indictments of corporate officers under the Sherman Act, not the Clayton Act, and many convictions were obtained. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U. S. 150; United States v. Trenton Potteries Co., 273 U. S. 392; American Tobacco Co. v. United States, 147 F.2d 93 (C.A.6th Cir.), affirmed, 328 U. S. 328 U.S. 781.The appellee does not call to our attention any case during this time in which the contention he now makes was successfully urged. He suggests that the dearth of cases on this point reflects the belief on the part of corporate officers that, because of the identical penalties of the Clayton Act, the successful challenge to a Sherman Act indictment would be an academic victory. We cannot even attempt to evaluate the motives of individual defendants in raising or not raising defenses, even if we regarded the matter as being significant, which we do not.The Government, on the other hand, relies upon United States v. Atlantic Comm'n Co., 45 F. Supp. 187 (D.C.E.D.N.C.); United States v. General Motors Corp., 26 F. Supp. 353 (D.C.N.D.Ind.), affirmed, 121 F.2d 376 (C.A.7th Cir.); and United States v. National Malleable & Steel Castings Co., 6 F.2d 40 (D.C.N.D.Ohio), holding that nothing in § 14 of the Clayton Act altered the existing liability for prosecution of all officers who participate in the violation of the Sherman Act. With this, we agree.We also agree that there is nothing in the 1955 amendment to the Sherman Act nor in its legislative history to indicate that the Congress intended to restrict the applicability of the increased fine to corporations. See 69 Stat. 282; S.Rep.No.618, 84th Cong., 1st Sess. Page 370 U. S. 416Based upon the foregoing, we hold that a corporate officer is subject to prosecution under § 1 of the Sherman Act whenever he knowingly participates in effecting the illegal contract, combination, or conspiracy -- be he one who authorizes, orders, or helps perpetrate the crime -- regardless of whether he is acting in a representative capacity. It follows that the District Court erred when it dismissed the indictment against the appellee. The case is reversed and remanded for proceedings consistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. Wise, 370 U.S. 405 (1962)United States v. WiseNo. 488Argued April 16, 1962Decided June 25, 1962370 U.S. 405SyllabusA grand jury indicted appellee and a corporation of which he was an officer for engaging in a combination and conspiracy to eliminate price competition in the sale of milk in the Kansas City area, in violation of § 1 of the Sherman Act. In a bill of particulars, the Government charged that appellee had been acting "solely in his capacity as an officer, director, or agent who authorized, ordered, or did" some of the acts constituting a violation. The District Court dismissed the indictment as to appellee, on the ground that § 1 of the Sherman Act does not apply to corporate officers acting in a representative capacity.Held: a corporate officer is subject to prosecution under § 1 of the Sherman Act whenever he knowingly participates in effecting an illegal contract, combination or conspiracy -- be he one who authorizes, orders or helps to perpetrate the crime -- regardless of whether he is acting in a representative capacity. Pp. 370 U. S. 406-416.(a) An officer of a corporation acting solely in his representative capacity is a "person" within the meaning of § 1 of the Sherman Act, which imposes criminal sanctions upon "every person" who violates its provisions. Pp. 370 U. S. 407-408.(b) A different conclusion is not required by § 8, which defines "person" to include "corporations and associations." Pp. 370 U. S. 408-411.(c) A different conclusion is not required by § 14 of the Clayton Act or its legislative history. Pp. 370 U. S. 411-415.(d) Nothing in the language or legislative history of the 1955 amendment to the Sherman Act, increasing the penalty for violation thereof from $5,000 to $50,000 without making a corresponding increase in the $5,000 penalty under the Clayton Act, indicates that Congress intended to restrict the applicability of the increased fine to corporations. P. 370 U. S. 415.196 F. Supp. 155 reversed. Page 370 U. S. 406

1993_93-489

ally insured bank, it is a federal-law or rather a state-law rule of decision that governs the tort liability of attorneys who provided services to the bank.IAmerican Diversified Savings Bank (ADSB or S&L) is a California-chartered and federally insured savings and loan. The following facts have been stipulated to, or are uncontroverted, by the parties to the case, and we assume them to be true for purposes of our decision. ADSB was acquired in 1983 by Ranbir Sahni and Lester Day, who respectively obtained 96% and 4% of its stock, and who respectively served as its chairman/CEO and president. Under their leadership, ADSB engaged in many risky real estate transactions, principally through limited partnerships sponsored by ADSB and its subsidiaries. Together, Sahni and Day also fraudulently overvalued ADSB's assets, engaged in sham sales of assets to create inflated "profits," and generally "cooked the books" to disguise the S&Us dwindling (and eventually negative) net worth.In September 1985, petitioner O'Melveny & Myers, a Los Angeles-based law firm, represented ADSB in connection with two real estate syndications. At that time, ADSB was under investigation by state and federal regulators, but that fact had not been made public. In completing its work for the S&L, petitioner did not contact the accounting firms that had previously done work for ADSB, nor state and federal regulatory authorities, to inquire about ADSB's financial status. The two real estate offerings on which petitioner worked closed on December 31,1985. On February 14,1986, federal regulators concluded that ADSB was insolvent and that it had incurred substantial losses because of violations of law and unsound business practices. Respondent stepped82in as receiver for ADSB,l and on February 19, 1986, filed suit against Messrs. Sahni and Day in Federal District Court, alleging breach of fiduciary duty and, as to Sahni, Racketeer Influenced and Corrupt Organizations Act violations. Soon after taking over as receiver, respondent began receiving demands for refunds from investors who claimed that they had been deceived in connection with the two real estate syndications. Respondent caused ADSB to rescind the syndications and to return all of the investors' money plus interest.On May 12, 1989, respondent sued petitioner in the United States District Court for the Central District of California, alleging professional negligence and breach of fiduciary duty. The parties stipulated to certain facts and petitioner moved for summary judgment, arguing that (1) it owed no duty to ADSB or its affiliates to uncover the S&Us own fraud; (2) that knowledge of the conduct of ADSB's controlling officers must be imputed to the S&L, and hence to respondent, which, as receiver, stood in the shoes of the S&L; and (3) that respondent was estopped from pursuing its tort claims against petitioner because of the imputed knowledge. On May 15, 1990, the District Court granted summary judgment, explaining only that petitioner was "entitled to judgment in its favor ... as a matter of law." The Court of Appeals for the Ninth Circuit reversed, on grounds that we shall discuss below. 969 F.2d 744 (1992). Petitioner filed a petition for writ of certiorari, which we granted. 510 U. S. 989 (1993).1 For simplicity's sake, we refer to a "receiver" throughout, which we identify as the FDIC. The reality was more complicated. The first federal entity involved was the Federal Savings and Loan Insurance Corporation (FSLIC), which was appointed conservator of ADSB in 1986 and receiver in June 1988. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. 101-73, 103 Stat. 183, abolished FSLIC, and caused FDIC, the manager of the FSLIC resolution fund, to be substituted as receiver and party to this case. See id., §§ 215, 401(a)(1), 401(f)(2).83IIIt is common ground that the FDIC was asserting in this case causes of action created by California law. Respondent contends that in the adjudication of those causes of action (1) a federal common-law rule and not California law determines whether the knowledge of corporate officers acting against the corporation's interest will be imputed to the corporation; and (2) even if California law determines the former question, federal common law determines the more narrow question whether knowledge by officers so acting will be imputed to the FDIC when it sues as receiver of the corporation.2The first of these contentions need not detain us long, as it is so plainly wrong. "There is no federal general common law," Erie R. Go. v. Tompkins, 304 U. S. 64, 78 (1938), and (to anticipate somewhat a point we will elaborate more fully in connection with respondent's second contention) the remote possibility that corporations may go into federal receivership is no conceivable basis for adopting a special federal common-law rule divesting States of authority over the entire law of imputation. See Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 33-34 (1956). The Ninth Circuit believed that its conclusion on this point was in harmony with Schacht v. Brown, 711 F.2d 1343 (CA7 1983), Genco Inc. v. Seidman & Seidman, 686 F.2d 449 (CA71982), and In re Investors Funding Gorp. of N. Y. Securities Litigation, 523 F. Supp. 533 (SDNY 1980), 969 F. 2d, at 750, but even a cursory examination of those cases shows the contrary. In Genco, where the cause of action similarly arose under state common law, the Seventh Circuit's analysis of2 The Court of Appeals appears to have agreed with the first of these contentions. Instead of the second, however, it embraced the proposition that federal common law prevents the attributed knowledge of corporate officers acting against the corporation's interest from being used as the basis for an estoppel defense against the FDIC as receiver. Since there is nothing but a formalistic distinction between this argument and the second one described in text, we do not treat it separately.84the "circumstances under which the knowledge of fraud on the part of the plaintiff's directors [would] be imputed to the plaintiff corporation [was] merely an attempt to divine how Illinois courts would decide that issue." Schacht, supra, at 1347 (citing Genco, supra, at 455). Likewise, in Investors Funding, the District Court analyzed the potential affirmative defenses to the state-law claims by applying "[t]he controlling legal principles [of] New York law." 523 F. Supp., at 540. In Schacht, the Seventh Circuit expressly noted that "the cause of action [at issue] arises under RICO, a federal statute; we therefore write on a clean slate and may bring to bear federal policies in deciding the estoppel question." 711 F. 2d, at 1347.In seeking to defend the Ninth Circuit's holding, respondent contends (to quote the caption of its argument) that "The Wrongdoing Of ADSB's Insiders Would Not Be Imputed To ADSB Under Generally Accepted Common Law Principles," Brief for Respondent 12-in support of which it attempts to show that nonattribution to the corporation of dishonest officers' knowledge is the rule applied in the vast bulk of decisions from 43 jurisdictions, ranging from Rhode Island to Wyoming. See, e. g., id., at 21-22, n. 9 (distinguishing, inter alia, Gook v. American Tubing & Webbing Go., 28 R. I. 41, 65 A. 641 (1905), and American Nat. Bank of Powell v. Foodbasket, 497 P. 2d 546 (Wyo. 1972)). The supposed relevance of this is set forth in a footnote: "It is our position that federal common law does govern this issue, but that the content of the federal common law rule corresponds to the rule that would independently be adopted by most jurisdictions." Brief for Respondent 15, n. 3. If there were a federal common law on such a generalized issue (which there is not), we see no reason why it would necessarily conform to that "independently ... adopted by most jurisdictions." But the short of the matter is that California law, not federal law, governs the imputation of knowledge to corporate victims of85alleged negligence, and that is so whether or not California chooses to follow "the majority rule."We turn, then, to the more substantial basis for the decision below, which asserts federal pre-emption not over the law of imputation generally, but only over its application to the FDIC suing as receiver. Respondent begins its defense of this principle by quoting United States v. Kimbell Foods, Inc., 440 U. S. 715, 726 (1979), to the effect that "federal law governs questions involving the rights of the United States arising under nationwide federal programs." But the FDIC is not the United States, and even if it were we would be begging the question to assume that it was asserting its own rights rather than, as receiver, the rights of ADSB. In any event, knowing whether "federal law governs" in the Kimbell Foods sense-a sense which includes federal adoption of state-law rules, see id., at 727-729-does not much advance the ball. The issue in the present case is whether the California rule of decision is to be applied to the issue of imputation or displaced, and if it is applied it is of only theoretical interest whether the basis for that application is California's own sovereign power or federal adoption of California's disposition. See Boyle v. United Technologies Corp., 487 U. S. 500, 507, n. 3 (1988).In answering the central question of displacement of California law, we of course would not contradict an explicit federal statutory provision. Nor would we adopt a court-made rule to supplement federal statutory regulation that is comprehensive and detailed; matters left unaddressed in such a scheme are presumably left subject to the disposition provided by state law. See Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 97 (1981); Milwaukee v. Illinois, 451 U. S. 304, 319 (1981). Petitioner asserts that both these principles apply in the present case, by reason of 12 U. S. C. § 1821(d)(2)(A)(i) (1988 ed., Supp. IV), and the comprehensive legislation of which it is a part, the Financial Institutions86Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183.Section 1821(d)(2)(A)(i), which is part of a title captioned "Powers and duties of [the FDIC] as ... receiver," states that "the [FDIC] shall, ... by operation of law, succeed toall rights, titles, powers, and privileges of the insured depository institution .... " 12 U. S. C. § 1821(d)(2)(A)(i) (1988 ed., Supp. IV). This language appears to indicate that the FDIC as receiver "steps into the shoes" of the failed S&L, cf. Coit Independence Joint Venture v. FSLIC, 489 U. S. 561, 585 (1989), obtaining the rights "of the insured depository institution" that existed prior to receivership. Thereafter, in litigation by the FDIC asserting the claims of the S&Lin this case California tort claims potentially defeasible by a showing that the S&L's officers had knowledge-" 'any defense good against the original party is good against the receiver.'" 969 F. 2d, at 751 (quoting Allen v. Ramsay, 179 Cal. App. 2d 843, 854, 4 Cal. Rptr. 575, 583 (1960)).Respondent argues that § 1821(d)(2)(A)(i) should be read as a nonexclusive grant of rights to the FDIC receiver, which can be supplemented or modified by federal common law; and that FIRREA as a whole, by demonstrating the high federal interest in this area, confirms the courts' authority to promulgate such common law. This argument is demolished by those provisions of FIRREA which specifically create special federal rules of decision regarding claims by, and defenses against, the FDIC as receiver. See 12 U. S. C. § 1821(d)(14) (1988 ed., Supp. IV) (extending statute of limitations beyond period that might exist under state law); §§ 1821(e)(1), (3) (precluding state-law claims against the FDIC under certain contracts it is authorized to repudiate); § 1821(k) (permitting claims against directors and officers for gross negligence, regardless of whether state law would require greater culpability); § 1821(d)(9) (excluding certain state-law claims against FDIC based on oral agreements by the S&L). Inclusio unius, exclusio alterius. It is hard to87avoid the conclusion that § 1821(d)(2)(A)(i) places the FDIC in the shoes of the insolvent S&L, to work out its claims under state law, except where some provision in the extensive framework of FIRREA provides otherwise. To create additional "federal common-law" exceptions is not to "supplement" this scheme, but to alter it.We have thought it necessary to resolve the effect of FIRREA because respondent argued that the statute not only did not prevent but positively authorized federal common law. We are reluctant to rest our judgment on FIRREA alone, however, since that statute was enacted into law in 1989, while respondent took over as receiver for ADSB in 1986. The FDIC is willing to "assume ... that FIRREA would have taken effect in time to be relevant to this case," Brief for Respondent 35, n. 21, but it is not selfevident that that assumption is correct. See Landgraf v. USI Film Products, 511 U. S. 244, 268-270, 274 (1994); cf. id., at 290-291 (SCALIA, J., concurring in judgment). It seems to us imprudent to resolve the retroactivity question without briefing, and inefficient to pretermit the retroactivity issue on the basis of the FDIC's concession, since that would make our decision of limited value in other cases. As we proceed to explain, even assuming the inapplicability of FIRREA this is not one of those cases in which judicial creation of a special federal rule would be justified.Such cases are, as we have said in the past, "few and restricted," Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963), limited to situations where there is a "significant conflict between some federal policy or interest and the use of state law." Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). Our cases uniformly require the existence of such a conflict as a precondition for recognition of a federal rule of decision. See, e. g., Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991); Boyle, supra, at 508; Kimbell Foods, 440 U. S., at 728. Not only the permissibility but also the scope of judicial displacement of state rules88turns upon such a conflict. See, e. g., Kamen, supra, at 98; Boyle, supra, at 508. What is fatal to respondent's position in the present case is that it has identified no significant conflict with an identifiable federal policy or interest. There is not even at stake that most generic (and lightly invoked) of alleged federal interests, the interest in uniformity. The rules of decision at issue here do not govern the primary conduct of the United States or any of its agents or contractors, but affect only the FDIC's rights and liabilities, as receiver, with respect to primary conduct on the part of private actors that has already occurred. Uniformity of law might facilitate the FDIC's nationwide litigation of these suits, eliminating state-by-state research and reducing uncertainty-but if the avoidance of those ordinary consequences qualified as an identifiable federal interest, we would be awash in "federal common-law" rules. See United StatesThe closest respondent comes to identifying a specific, concrete federal policy or interest that is compromised by California law is its contention that state rules regarding the imputation of knowledge might "deplet[e] the deposit insurance fund," Brief for Respondent 32. But neither FIRREA nor the prior law sets forth any anticipated level for the fund, so what respondent must mean by "depletion" is simply the forgoing of any money which, under any conceivable legal rules, might accrue to the fund. That is a broad principle indeed, which would support not just elimination of the defense at issue here, but judicial creation of new, "federalcommon-law" causes of action to enrich the fund. Of course we have no authority to do that, because there is no federal policy that the fund should always win. Our cases have previously rejected "more money" arguments remarkably similar to the one made here. See Kimbell Foods, supra, at 737-738; Yazell, supra, at 348; cf. Robertson v. Wegmann, 436 U. S. 584, 593 (1978).89Even less persuasive-indeed, positively probative of the dangers of respondent's facile approach to federal-commonlaw-making-is respondent's contention that it would "disserve the federal program" to permit California to insulate "the attorney's or accountant's malpractice," thereby imposing costs "on the nation's taxpayers, rather than on the negligent wrongdoer." Brief for Respondent 32. By presuming to judge what constitutes malpractice, this argument demonstrates the runaway tendencies of "federal common law" untethered to a genuinely identifiable (as opposed to judicially constructed) federal policy. What sort of tort liability to impose on lawyers and accountants in general, and on lawyers and accountants who provide services to federally insured financial institutions in particular, "'involves a host of considerations that must be weighed and appraised,'" Northwest Airlines, Inc., 451 U. S., at 98, n. 41 (quoting United States v. Gilman, 347 U. S. 507, 512-513 (1954))-including, for example, the creation of incentives for careful work, provision of fair treatment to third parties, assurance of adequate recovery by the federal deposit insurance fund, and enablement of reasonably priced services. Within the federal system, at least, we have decided that that function of weighing and appraising "'is more appropriately for those who write the laws, rather than for those who interpret them.'" Northwest Airlines, supra, at 98, n. 41 (quoting Gilman, supra, at 513).We conclude that this is not one of those extraordinary cases in which the judicial creation of a federal rule of decision is warranted. As noted earlier, the parties are in agreement that if state law governs it is the law of California; but they vigorously disagree as to what that law provides. We leave it to the Ninth Circuit to resolve that point. The judgment is reversed and the case remanded

OCTOBER TERM, 1993SyllabusO'MELVENY & MYERS v. FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR AMERICAN DIVERSIFIED SAVINGS BANK, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 93-489. Argued March 21, 1994-Decided June 13, 1994Respondent Federal Deposit Insurance Corporation (FDIC), receiver for an insolvent California savings and loan (S&L), caused the S&L to make refunds to investors in certain fraudulent real estate syndications in which the S&L had been represented by petitioner law firm. The FDIC filed suit against petitioner in the Federal District Court and alleged state causes of action for professional negligence and breach of fiduciary duty. Petitioner moved for summary judgment, alleging, inter alia, that knowledge of the fraudulent conduct of the S&Us officers must be imputed to the S&L, and hence to the FDIC, which, as receiver, stood in the S&Us shoes; and thus the FDIC was estopped from pursuing its tort claims. The court granted the motion, but the Court of Appeals reversed, indicating that a federal common-law rule of decision controlled.Held: The California rule of decision, rather than a federal rule, governs petitioner's tort liability. Pp. 83-89.(a) State law governs the imputation of corporate officers' knowledge to a corporation that is asserting causes of action created by state law. There is no federal general common law, Erie R. Co. v. Tompkins, 304 U. S. 64, 78, and the remote possibility that corporations may go into federal receivership is no conceivable basis for adopting a special federal common-law rule divesting States of authority over the entire law of imputation. Pp. 83-85.(b) California law also governs the narrower question whether corporate officers' knowledge can be imputed to the FDIC suing as receiver. This Court will not adopt a judge-made federal rule to supplement comprehensive and detailed federal statutory regulation; matters left unaddressed in such a scheme are presumably left to state law. Title 12 U. S. C. § 1821(d)(2)(A)(i)-which states that "the [FDIC] shall, ... by operation of law, succeed to-all rights, titles, powers, and privileges of the insured depository institution"-places the FDIC in the insolvent S&L's shoes to pursue its claims under state law, except where some provision in the extensive framework of the Financial Institutions Re-80form, Recovery, and Enforcement Act of 1989 (FIRREA) specifically creates a special federal rule of decision. Pp. 85-87.(c) Judicial creation of a special federal rule would not be justified even if FIR REA is inapplicable to the instant receivership, which began in 1986. Instances where a special federal rule is warranted are few and restricted, limited to situations where there is a significant conflict between some federal policy or interest and the use of state law. The FDIC has identified no significant conflict here, not even one implicating the most lightly invoked federal interest: uniformity. Pp. 87-89.969 F.2d 744, reversed and remanded.SCALIA, J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion, in which BLACKMUN, O'CONNOR, and SOUTER, JJ., joined, post, p. 90.Rex E. Lee argued the cause for petitioner. With him on the briefs were Robert D. McLean, Carter G. Phillips, Joseph R. Guerra, Peter D. Keisler, Richard D. Bernstein, Gregory R. Smith, Joseph M. Lipner, and Elliot Brown.Deputy Solicitor General Bender argued the cause for respondents. With him on the brief were Solicitor General Days, James A. Feldman, Ann S. DuRoss, RichardJUSTICE SCALIA delivered the opinion of the Court.The issue in this case is whether, in a suit by the Federal Deposit Insurance Corporation (FDIC) as receiver of a feder-*Briefs of amici curiae urging reversal were filed for Arthur Andersen & Co. et al. by Carl D. Liggio, Kathryn A. Oberly, Jon N Ekdahl, Harris J. Amhowitz, Howard J. Krongard, Edwin D. Scott, and Eldon Olson; for Banking and Business Lawyers by Keith R. Fisher, John C. Deal, David S. Willenzik, Neal L. Petersen, Henry H. Fox, and MichaelC. Edward Simpson, Theodore H. Focht, and Michael E. Don filed a brief for the Securities Investor Protection Corporation et al. as amici curiae urging affirmance.Briefs of amici curiae were filed for the American Bar Association by R. William Ide III, John J. Curtin, Jr., and Arthur W Leibold, Jr.; and for Shrader & York et al. by Eugene B. Wilshire, Jr., and Patrick J. Dyer.81Full Text of Opinion

1976_75-1255

MR. JUSTICE MARSHALL delivered the opinion of the Court.The issue in this case is the validity of two Virginia statutes that limit the right of nonresidents and aliens to catch fish in the territorial waters of the Commonwealth.IPersons or corporations wishing to fish commercially in Virginia must obtain licenses. Section 28.1-81.1 of the Virginia Code (§ 81.1) (Supp. 1976), [Footnote 1] enacted in 1975, limits the Page 431 U. S. 268 issuance of commercial fishing licenses to United States citizens. Under this law, participants in any licensed partnership, firm, or association must be citizens. A fishing business organized in corporate form may be licensed only if it is chartered in this country; American citizens own and control at least 75% of its stock; and its president, board chairman, and controlling board majority are citizens.Section 28.1-60 of the Virginia Code (§ 60) (Supp. 1976) [Footnote 2] Page 431 U. S. 269 governs licensing of nonresidents of Virginia to fish for menhaden, an inedible but commercially valuable species of fin fish. [Footnote 3] Section 60 allows nonresidents who meet the citizenship requirements of § 81.1 to obtain licenses to fish for menhaden in the three-mile-wide belt of Virginia's territorial sea off the Commonwealth's eastern coastline. At the same time, however, § 60 prohibits nonresidents from catching menhaden in the Virginia portion of Chesapeake Bay.Appellee Seacoast Products, Inc., is one of three companies that dominate the menhaden industry. The other two firms, unlike Seacoast, have fish-processing plants in Virginia and are owned by American citizens. Hence, they are not affected by either of the restrictions challenged in this case. Seacoast was founded in New Jersey in 1911, and maintains its principal offices in that State; it is incorporated in Delaware and qualified to do business in Virginia. The other appellees are subsidiaries of Seacoast; they are incorporated and maintain plants and offices in States other than Virginia. In 1973, Page 431 U. S. 270 the family of Seacoast's founder sold the business to Hanson Trust, Ltd., a United Kingdom company almost entirely owned by alien stockholders. Seacoast continued its operations unchanged after the sale. All of its officers, directors, boat captains, and crews are American citizens, as are over 95% of its plant employees.At the time of its sale, Seacoast's fishing vessels were enrolled and licensed American-flag ships. See infra at 431 U. S. 272-274. Under 46 U.S.C. §§ 808, 835, the transfer of these vessels to a foreign-controlled corporation required the approval of the Department of Commerce. This was granted unconditionally over the opposition of Seacoast's competitors after a full public hearing that considered the effect of the transfer on fish conservation and management, on American workers and consumers, and on competition and other social and economic concerns. See 38 Fed.Reg. 29239-29240 (1973); 39 Fed.Reg. 7819, 33812-33813 (1974); App. 29-32. Following this approval, appellees' fishing vessels were reenrolled and relicensed pursuant to 46 U.S.C. §§ 251-252, 263. They remain subject to all United States laws governing maritime commerce.In past decades, although not recently, Seacoast had operated processing plants in Virginia, and was thereby entitled to fish in Chesapeake Bay as a resident. Tr. of Oral Arg. 282-9, 34. More recently, Seacoast obtained nonresident menhaden licenses as restricted by § 60 to waters outside Chesapeake Bay. In 1975, however, § 81.1 was passed by the Virginia Legislature, c. 338, 1975 Va.Acts, and appellant James E. Douglas, Jr., the Commissioner of Marine Resources for Virginia, denied appellees' license applications on the basis of the new law. Seacoast and its subsidiaries were thereby completely excluded from the Virginia menhaden fishery.Appellees accordingly filed a complaint in the District Court for the Eastern District of Virginia, seeking to have §§ 60 and 81.1 declared unconstitutional and their enforcement enjoined. A three-judge court was convened, and it Page 431 U. S. 271 struck down both statutes. It held that the citizenship requirement of § 81.1 was preempted by the Bartlett Act, 16 U.S.C. § 1081 et seq., and that the residency restriction of § 60 violated the Equal Protection Clause of the Fourteenth Amendment. We noted probable jurisdiction of the Commissioner's appeal, 425 U.S. 949 (1976), and we affirm. [Footnote 4]IISeacoast advances a number of theories to support affirmance of the judgment below. See Fusari v. Steinberg, 419 U. S. 379, 419 U. S. 387 n. 13 (1975); Dandridge v. Williams, 397 U. S. 471, 397 U. S. 475 n. 6 (1970). Among these is the claim that the Virginia statutes are preempted by federal enrollment and licensing laws for fishing vessels. [Footnote 5] The United States has filed a brief as amicus curiae supporting this contention. Although Page 431 U. S. 272 the claim is basically constitutional in nature, deriving its force from the operation of the Supremacy Clause, Art. VI, cl. 2, it is treated as "statutory" for purposes of our practice of deciding statutory claims first to avoid unnecessary constitutional adjudications. See Hagans v. Lavine, 415 U. S. 528, 415 U. S. 549 (1974). [Footnote 6] Since we decide the case on this ground, we do not reach the constitutional issues raised by the parties.The well known principles of preemption have been rehearsed only recently in our decisions. See, e.g., Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525-526 (1977); De Canas v. Bica, 424 U. S. 351 (1976). No purpose would be served by repeating them here. It is enough to note that we deal in this case with federal legislation arguably superseding state law in a "field which . . . has been traditionally occupied by the States." Jones v. Rath Packing Co., supra at 430 U. S. 525. Preemption accordingly will be found only if "that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947)." Ibid. We turn our focus, then, to the congressional intent embodied in the enrollment and licensing laws.AThe basic form for the comprehensive federal regulation of trading and fishing vessels was established in the earliest days of the Nation, and has changed little since. Ships engaged in trade with foreign lands are "registered," a documentation procedure set up by the Second Congress in the Act of Dec. 31, 1792, 1 Stat. 287, [Footnote 7] and now codified in 46 U.S.C. c. 2. "The purpose of a register is to declare the nationality of a Page 431 U. S. 273 vessel . . . and to enable her to assert that nationality wherever found." The Mohawk, 3 Wall. 566, 571 (1866); Anderson v. Pacific Coast S.S. Co., 225 U. S. 187, 225 U. S. 199 (1912). Vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" under procedures established by the Enrollment and Licensing Act of Feb. 18, 1793, 1 Stat. 305, codified in 46 U.S.C. c. 12. "The purpose of an enrollment is to evidence the national character of a vessel . . . and to enable such vessel to procure a . . . license." The Mohawk, supra; Anderson v. Pacific Coast S.S. Co., supra.A "license," in turn, regulates the use to which a vessel may be put and is intended to prevent fraud on the revenue of the United States. See 46 U.S.C. §§ 262, 263, 319, 325; 46 CFR § 67.01-13 (1976). The form of a license is statutorily mandated:"license is hereby granted for the . . . [vessel] to be employed in carrying on the ( . . . 'coasting trade,' 'whale fishery,' 'mackerel fishery,' or 'cod fishery,' [Footnote 8] as the case may be), for one year from the date hereof, and no longer."46 U.S.C. § 263. The law also provides that properly enrolled and licensed vessels [Footnote 9] "and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries." § 251. Appellees' vessels were granted licenses for the "mackerel fishery" [Footnote 10] Page 431 U. S. 274 after their transfer was approved by the Department of Commerce.The requirements for enrollment and registration are the same. 46 U.S.C. § 252; The Mohawk, supra at 70 U. S. 571-572. Insofar as pertinent here, enrolled and registered vessels must meet identification, measurement, and safety standards, generally must be built in the United States, and must be owned by citizens. An exception to the latter rule permits a corporation having alien stockholders to register or enroll ships if it is organized and chartered under the laws of the United States or of any State, if its president or chief executive officer and the chairman of its board of directors are American citizens, and if no more of its directors than a minority of the number necessary to constitute a quorum are noncitizens. 46 U.S.C. § 11; 46 CFR § 67.05(a) (1976). The Shipping Act, 1916, further limits foreign ownership of American vessels by requiring the Secretary of Commerce to approve any transfer of an American-owned vessel to noncitizens. 46 U.S. C § 808. [Footnote 11]BDeciphering the intent of Congress is often a difficult task, and to do so with a law the vintage of the Enrollment and Licensing Act verges on the impossible. There is virtually no surviving legislative history for the Act. [Footnote 12] What we do have, Page 431 U. S. 275 however, is the historic decision of Mr. Chief Justice John Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), rendered only three decades after passage of the Act. Gibbons invalidated a discriminatory state regulation of shipping as applied to vessels federally licensed to engage in the coasting trade. Although its historic importance lies in its general discussion of the commerce power, Gibbons also provides substantial illumination on the narrower question of the intended meaning of the Licensing Act.The case challenged a New York law intended to encourage development of steamboats by granting Robert Fulton and Robert Livingston the exclusive right to operate steam-powered vessels in all of the State's territorial waters. The right to navigate steamboats between Elizabethtown Point, N.J., and New York City was, by assignment from Fulton and Livingston, granted to Aaron Ogden. Thomas Gibbons began operating two passenger ferries in violation of Ogden's submonopoly. Gibbons' steamboats had been enrolled and granted "license . . . to be employed in carrying on the coasting trade" under the Enrollment and Licensing Act. Id. at 203.Ogden nevertheless obtained an injunction from the New York courts enforcing the monopoly by restraining Gibbons from running his ferries in New York waters. Chancellor James Kent rejected Gibbons' preemption claim based upon his federal licenses. Kent found that the sole purpose of the license was to "giv[e] to the vessel an American character," i.e., to establish its nationality as an American-flag ship. This would have reduced various duties and taxes assessed under federal law, but, in Kent's view, it did not oust the power of the State to regulate the use of chattels within its borders. 4 Johns.Ch. 150, 156-159 (1819). The highest state court affirmed, ruling that "the only effect" of the license was "to determine [the vessel's] national character, and the rate of duties which she is to pay." 17 Johns. 488, 509 (1820). Page 431 U. S. 276On appeal to this Court, Mr. Chief Justice Marshall held that the rights granted to Gibbons by federal law superseded the conflicting state-created rights asserted by Ogden. Marshall first considered the power of Congress under the Commerce Clause. He concluded that "[c]ommerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior," 9 Wheat. at 22 U. S. 194, and that "[t]he power of Congress . . whatever it may be, must be exercised within the territorial jurisdiction of the several States." Id. at 22 U. S. 196. The Court next defined the nature of the commerce power: "the power to regulate; that is, to prescribe the rule by which commerce is to be governed." Ibid. Ogden's claim that the States may exercise concurrent power over commerce, or even exercise their police powers, where that exercise conflicts with express federal law was rejected. Id. at 22 U. S. 200-210.The Court then turned to the question whether "the laws of New-York" did "come into collision with an act of Congress" so that "the acts of New York must yield to the law of Congress." Id. at 22 U. S. 210. Mr. Chief Justice Marshall found the conflict unquestionable:"To the Court it seems very clear, that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade."Id. at 22 U. S. 212. The license granted to Gibbons under the Act"must be understood to be what it purports to be, a legislative authority to [Gibbons'] steamboat . . . 'to be employed in carrying on the coasting trade, for one year from this date.'"Id. at 22 U. S. 214. The Court rejected Ogden's argument -- and the holding of the New York courts -- that the license "gives no right to trade; and that its sole purpose is to confer the American character." Ibid. Finally, the Court decided that the statutory phrase "coasting trade" encompassed the carriage of passengers for hire as well as the transport of goods. Id. at 22 U. S. 215-219. Page 431 U. S. 277Although Gibbons is written in broad language which might suggest that the sweep of the Enrollment and Licensing Act ousts all state regulatory power over federally licensed vessels, neither the facts before the Court nor later interpretations extended that far. Gibbons did not involve an absolute ban on steamboats in New York waters. Rather, the monopoly law allowed some steam vessels to ply their trade while excluding others that were federally licensed. The case struck down this discriminatory treatment. Subsequent decisions spelled out the negative implication of Gibbons: that States may impose upon federal licensees reasonable, nondiscriminatory conservation and environmental protection measures otherwise within their police power.For example, in Smith v. Maryland, 18 How. 71 (1855), the Court upheld a conservation law which limited the fishing implements that could be used by a federally licensed vessel to take oysters from state waters. The Court held that an "enrollment and license confer no immunity from the operation of valid laws of a State," id. at 59 U. S. 74, and that the law was valid because the State "may forbid all such acts as would render the public right [of fishery] less valuable, or destroy it altogether," id. at 59 U. S. 75. At the same time, the Court explicitly reserved the question of the validity of a statute discriminating against nonresidents. Ibid. To the same effect is the holding in Manchester v. Massachusetts, 139 U. S. 240 (1891). There, state law prohibited the use by any person of certain types of fishing tackle in specified areas. Though Manchester was a Rhode Island resident basing a claim on his federal fisheries license, the Court held that the statute"was evidently passed for the preservation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other States. . . . [T]he statute may well be considered as an impartial and reasonable regulation . . . and the subject is one which a State may well be permitted to regulate within its Page 431 U. S. 278 territory, in the absence of any regulation by the United States. The preservation of fish . . . is for the common benefit; and we are of opinion that the statute is not repugnant to the Constitution and the laws of the United States."Id. at 139 U. S. 265.More recently, the same principle was applied in Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960), where we held that the city's Smoke Abatement Code was properly applicable to licensed vessels. Relying on earlier cases, we noted that "[t]he mere possession of a federal license . . . does not immunize a ship from the operation of the normal incidents of local police power." Id. at 362 U. S. 447. As an "[e]venhanded local regulation to effectuate a legitimate local public interest," id. at 362 U. S. 443, the ordinance was valid.Although it is true that the Court's view in Gibbons of the intent of the Second Congress in passing the Enrollment and Licensing Act is considered incorrect by commentators, [Footnote 13] its Page 431 U. S. 279 provisions have been repeatedly reenacted in substantially the same form. [Footnote 14] We can safely assume that Congress was aware of the holding, as well as the criticism, [Footnote 15] of a case so renowned as Gibbons. We have no doubt that Congress has ratified the statutory interpretation of Gibbons and its progeny. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 414 n. 8 (1975); Snyder v. Harris, 394 U. S. 332, 394 U. S. 339 (1969); Francis v. Southern Pacific Co., 333 U. S. 445, 333 U. S. 449-450 (1948). We consider, then, its impact on the Virginia statutes challenged in this case. Page 431 U. S. 280CThe federal licenses granted to Seacoast are, as noted above, identical in pertinent part to Gibbons' licenses except that they cover the "mackerel fishery," rather than the "coasting trade." Appellant contends that, because of the difference this case is distinguishable from Gibbons. He argues that Gibbons upheld only the right of the federal licensee, as an American-flag vessel, to navigate freely in state territorial waters. He urges that Congress could not have intended to grant an additional right to take fish from the waters of an unconsenting State. Appellant points out that the challenged statutes in no way interfere with the navigation of Seacoast's fishing boats. They are free to cross the State's waters in search of fish in jurisdictions where they may lawfully catch them, and they may transport fish through the State's waters with equal impunity.Appellant's reading of Gibbons is too narrow. Gibbons emphatically rejects the argument that the license merely establishes the nationality of the vessel. That function is performed by the enrollment. 9 Wheat. at 22 U. S. 214. Rather, the license "implies, unequivocally, an authority to licensed vessels to carry on" the activity for which they are licensed. Id. at 22 U. S. 212. In Gibbons, the "authority . . . to carry on" the licensed activity included not only the right to navigate in, or to travel across, state waters, but also the right to land passengers in New York, and thereby provide an economically valuable service. The right to perform that additional act of landing cargo in the State -- which gave the license its real value -- was part of the grant of the right to engage in the "coasting trade." See Harman v. Chicago, 147 U. S. 396, 147 U.S. 405 (1893).The same analysis applies to a license to engage in the mackerel fishery. Concededly, it implies a grant of the right to navigate in state waters. But, like the trading license, it must give something more. It must grant "authority Page 431 U. S. 281 . . . to carry on" the "mackerel fishery." And just as Gibbons and its progeny found a grant of the right to trade in a State without discrimination, we conclude that appellees have been granted the right to fish in Virginia waters on the same terms as Virginia residents.Moreover, 46 U.S.C. § 251 states that properly documented vessels "and no others" are "entitled to the privileges of vessels employed in the coasting trade or fisheries." Referring to this section, Gibbons held: "[T]hese privileges . . . cannot be enjoyed, unless the trade may be prosecuted. The grant of the privilege . . . convey[s] the right [to carry on the licensed activity] to which the privilege is attached." 9 Wheat. at 22 U. S. 213. Thus, under § 251 federal licensees are "entitled" to the same "privileges" of fishery access as a State affords to its residents or citizens.Finally, our interpretation of the license is reaffirmed by the specific discussion in Gibbons of the section granting the license, now 46 U.S.C. § 263. The Court pointed out that "a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license." 9 Wheat. at 22 U. S. 213-214. Gibbons recognized that the "grantor" was Congress. Id. at 22 U. S. 213. Thus, Gibbons expressly holds that the words used by Congress in the vessel license transfer to the licensee "all the right" which Congress has the power to convey. While appellant may be correct in arguing that at earlier times in our history there was some doubt whether Congress had power under the Commerce Clause to regulate the taking of fish in state waters, [Footnote 16] there can be no question today that such power Page 431 U. S. 282 exists where there is some effect on interstate commerce. Perez v. United States, 402 U. S. 146 (1971); Heart of Atlanta Motel v. United States, 379 U. S. 241 (1964); Wickard v. Filburn, 317 U. S. 111 (1942). The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce. Cf. Toomer v. Witsell, 334 U. S. 385, 334 U. S. 403 406 (1948). [Footnote 17] Accordingly, we hold that, at the least, when Congress reenacted the license form in 1936, [Footnote 18] using language which, according to Gibbons, gave licensees "all the right which the grantor can transfer," it necessarily extended the license to cover the taking of fish in state waters, subject to valid state conservation regulations. [Footnote 19] Page 431 U. S. 283DApplication of the foregoing principles to the present case is straightforward. Section 60 prohibits federally licensed vessels owned by nonresidents of Virginia from fishing in the Chesapeake Bay. Licensed ships owned by noncitizens are prevented by § 81.1 from catching fish anywhere in the Commonwealth. On the other hand, Virginia residents are permitted to fish commercially for menhaden subject only to seasonal and other conservation restrictions not at issue here. The challenged statutes thus deny appellees their federally granted right to engage in fishing activities on the same terms as Virginia residents. They violate the "indisputable" precept that "no State may completely exclude federally licensed commerce." Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 373 U. S. 142 (1963). They must fall under the Supremacy Clause.Appellant seeks to escape this conclusion by arguing that the Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§ 13011315, and a number of this Court's decisions [Footnote 20] recognize that the States have a title or ownership interest in the fish swimming in their territorial waters. It is argued that, because the States "own" the fish, they can exclude federal licensees. The contention is of no avail.The Submerged Lands Act does give the States "title," "ownership," and "the right and power to manage, administer, lease, develop, and use" the lands beneath the oceans and Page 431 U. S. 284 natural resources in the waters within state territorial jurisdiction. 43 U.S.C. § 1311(a). But when Congress made this grant pursuant to the Property Clause of the Constitution, see Alabama v. Texas, 347 U. S. 272 (1954), it expressly retained for the United States "all constitutional powers of regulation and control" over these lands and waters "for purposes of commerce, navigation, national defense, and international affairs." United States v. Louisiana, 363 U. S. 1, 363 U. S. 10 (1960); see 43 U.S.C. § 1314(a). Since the grant of the fisheries license is made pursuant to the commerce power, see supra at 431 U. S. 281-282; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 107 U. S. 377 (1883), the Submerged Lands Act did not alter its preemptive effect. Certainly Congress did not repeal by implication, in the broad language of the Submerged Lands Act, the Licensing Act requirement of equal treatment for federal licensees.In any event, "[t]o put the claim of the State upon title is," in Mr. Justice Holmes' words, "to lean upon a slender reed." Missouri v. Holland, 252 U. S. 416, 252 U. S. 434 (1920). 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. Ibid.; Geer v Connecticut, 161 U. S. 519, 161 U. S. 539-540 (1896) (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." Toomer v. Witsell, 334 U.S. at 334 U. S. 402; see also Takahashi v. Fish & Game Comm'n, 334 U. S. 410, 334 U. S. 420 421 (1948). Under modern analysis, the question is simply whether the State has exercised its police power in Page 431 U. S. 285 conformity with the federal laws and Constitution. As we have demonstrated above, Virginia has failed to do so here. [Footnote 21]IIIOur decision is very much in keeping with sound policy considerations of federalism. The business of commercial fishing must be conducted by peripatetic entrepreneurs moving, like their quarry, without regard for state boundary lines. Menhaden that spawn in the open ocean or in coastal waters of a Southern State may swim into Chesapeake Bay and live there for their first summer, migrate south for the following winter, and appear off the shores of New York or Massachusetts in succeeding years. A number of coastal States have discriminatory fisheries laws, [Footnote 22] and with all natural resources Page 431 U. S. 286 becoming increasingly scarce and more valuable, more such restrictions would be a likely prospect, as both protective and retaliatory measures. [Footnote 23] Each State's fishermen eventually might be effectively limited to working in the territorial waters of their residence, or in the federally controlled fishery beyond the three-mile limit. [Footnote 24] Such proliferation of residency requirements for commercial fishermen would create precisely the sort of Balkanization of interstate commercial activity that the Constitution was intended to prevent. See, e.g., H. P. Hood Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 532-539 (1949); cf. Allenberg Cotton Co. v. Pittman, 419 U. S. 20 (1974). We cannot find that Congress intended to allow any such result given the well known construction of federal vessel licenses in Gibbons.For these reasons, we conclude that §§ 60 and 81.1 are preempted by the federal Enrollment and Licensing Act. Insofar as these state laws subject federally licensed vessels owned by nonresidents or aliens to restrictions different from those applicable to Virginia residents and American citizens, they Page 431 U. S. 287 must fall under the Supremacy Clause. As we have noted above, however, reasonable an evenhanded conservation measures, so essential to the preservation of our vial marine sources of food supply, stand unaffected by our decision.The judgment of the District Court isAffirmed

U.S. Supreme CourtDouglas v. Seacoast Products, Inc., 431 U.S. 265 (1977)Douglas v. Seacoast Products, Inc.No. 75-1255Argued January 17, 1977Decided May 23, 1977431 U.S. 265SyllabusThe federal enrollment and licensing laws, under which vessels engaged in domestic or coastwise trade or used for fishing are "enrolled" for the purpose of evidencing their national character and to enable them to obtain licenses regulating the use to which the vessels may be put held to preempt Virginia statutes that, in effect, prohibit nonresidents of Virginia from catching menhaden in the Virginia portion of Chesapeake Bay and that bar noncitizens (regardless of where they reside) from obtaining commercial fishing licenses for any kind of fish from Virginia. Hence, under the Supremacy Clause, the Virginia laws cannot prevent appellees, whose fishing vessels, though foreign owned, have been federally licensed, from fishing for menhaden in Virginia's waters. Pp. 431 U. S. 271-287.(a) Gibbons v. Ogden, 9 Wheat. 1 (1824), decided three decades after the federal enrollment and licensing laws were enacted (and which have been reenacted without substantial change), established the invalidity of discriminatory state regulation of shipping as applied to vessels federally licensed to engage in the coasting trade, though subsequent decisions have permitted States to impose upon federal licensees reasonable nondiscriminatory conservation and environmental protection measures otherwise within the state police power. Pp. 431 U. S. 274-279.(b) The license does not merely establish the nationality of the vessel (which is performed by the enrollment), but "implies, unequivocally, an authority to licensed vessels to carry on" the activity for which they are licensed. Gibbons, supra, at 22 U. S. 212. Pp. 431 U. S. 282.(c) The Virginia statutes, by prohibiting federally licensed vessels owned by nonresidents of Virginia from fishing in Chesapeake Bay and by not allowing such ships owned by noncitizens to catch fish anywhere in the Commonwealth, deny licensees their federally granted right to engage in fishing activities on the same terms as state residents. P. 431 U. S. 283. Page 431 U. S. 266(d) The broad language of the Submerged Lands Act did not impliedly repeal the federal licensing laws. Pp. 431 U. S. 283-284.432 F. Supp. 1 affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, STEWART, BLACKMUN, and STEVENS, JJ., joined, and in all but Parts II-D and III of which POWELL and REHNQUIST, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment and concurring in part and dissenting in part, in which POWELL, J., joined, post, p. 431 U. S. 287. Page 431 U. S. 267

1984_84-5004

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether a felon possessing a firearm may be convicted and concurrently sentenced under 18 U.S.C. § 922(h)(1) for receiving that firearm, and under 18 U.S.C.App. § 1202(a)(1) for possessing the same weapon. 469 U.S. 816 (1984).IAfter driving around Honaker, Virginia, with several acquaintances, including petitioner Truman Ball, Hubert Romans discovered that his .32-caliber nickel-plated Rossi revolver was missing from the back seat of his car. [Footnote 1] He reported the incident to the Russell County Sheriff's Department. Subsequently, a neighbor notified the Sheriff that Ball had threatened him with a pistol matching the description of Romans' revolver. Later that same day, the police located Ball at another neighbor's home where Ball had tried unsuccessfully to sell the revolver. When the police told Ball he was under arrest, Ball fled hut was promptly apprehended with Romans' revolver in his possession.Ball, a previously convicted felon, [Footnote 2] was indicted on charges of receiving a firearm shipped in interstate commerce, 18 U.S.C. §§ 922(h)(1) and 924(a), and possessing that firearm, 18 U.S.C.App. § 1202(a)(1). [Footnote 3] It is conceded that both counts rest on the same conduct. Ball was convicted on both Page 470 U. S. 858 counts [Footnote 4] by a jury in the Western District of Virginia and sentenced to consecutive terms of three years' imprisonment on the receipt count and two years' imprisonment on the possession count, the latter sentence suspended with two years' probation.On appeal, Ball challenged the validity of the consecutive sentences. The Government conceded that, under United States v. Burton, 629 F.2d 975 (CA4 1980), cert. denied, 450 U.S. 968 (1981), consecutive sentences could not be imposed for unlawful receipt and unlawful possession of the same firearm when the unlawful possession was incident to its unlawful receipt. The Court of Appeals accepted this concession and adhered to its statement in Burton that "Congress in these firearms statutes created separate offenses, but did not authorize pyramiding penalties." 734 F.2d 965, 966 (CA4 1984) (citing Burton, supra, at 977). The Court of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent.The application of the firearms statutes, § 922(h)(1) and § 1202(a)(1), charging a convicted felon with receiving and possessing the same gun, has produced conflicting decisions among the Courts of Appeals. [Footnote 5] We granted certiorari to resolve this conflict. We reverse. Page 470 U. S. 859IIThis case requires the Court once again to resolve the "partial redundancy" of §§ 922(h) and 1202(a), provisions of Titles IV and VII, respectively, of the Omnibus Crime Control and Safe Streets Act of 1968. E.g., United States v. Batchelder, 442 U. S. 114, 442 U. S. 118 (1979); United States v. Bass, 404 U. S. 336, 404 U. S. 341-343, and n. 9 (1971). In these two Titles of the Omnibus Act, Congress sought to control the interstate traffic and availability of firearms. Although Congress' purposes are obvious, courts understandably have had difficulty applying the overlapping provisions of the Act. This case affords an opportunity to address the application of Titles IV and VII to one set of circumstances -- where a single act is relied upon to establish a convicted felon's unlawful receipt and his unlawful possession of the same firearm. [Footnote 6]AIt is clear that a convicted felon may be prosecuted simultaneously for violations of §§ 922(h) and 1202(a) involving the same firearm. This Court has long acknowledged the Government's broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case. E.g., United States v. Goodwin, 457 U. S. 368, 457 U. S. 382 (1982); Confiscation Cases, 7 Wall. 454, 74 U. S. 457-459 (1869). Page 470 U. S. 860In Batchelder, this Court recognized that §§ 922(h) and 1202(a) proscribed similar conduct where the defendant is a convicted felon, but concluded that"each substantive statute, in conjunction with its own sentencing provision, operates independently of the other."442 U.S. at 442 U. S. 118. This Court rejected the argument that § 1202(a) impliedly repealed § 922(h) with respect to acts covered by both provisions, noting that both the statutory language and the legislative history showed that the two provisions were to be applied independently. See id. at 118-121. [Footnote 7] Under these circumstances, there is no bar to the Government's proceeding with prosecution simultaneously under the two statutes. [Footnote 8] Page 470 U. S. 861BTo say that a convicted felon may be prosecuted simultaneously for violation of §§ 922(h) and 1202(a), however, is not to say that he may be convicted and punished for two offenses. Congress can be read as allowing charges under two different statutes with conviction and sentence confined to one. Indeed, "[a]ll guides to legislative intent," United States v. Woodward, 469 U. S. 105, 469 U. S. 109 (1985), show that Congress intended a felon in Ball's position to be convicted and punished for only one of the two offenses if the possession of the firearm is incidental to receiving it.This Court has consistently relied on the test of statutory construction stated in Blockburger v. United States, 284 U. S. 299, 284 U. S. 304 (1932), to determine whether Congress intended the same conduct to be punishable under two criminal provisions. The appropriate inquiry under Blockburger is "whether each provision requires proof of a fact which the other does not." See, e.g., United States v. Woodward, supra, at 469 U. S. 107; Albernaz v. United States, 450 U. S. 333, 450 U. S. 337 (1981); Whalen v. United States, 445 U. S. 684, 445 U. S. 691-692 (1980). The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes.For purposes of applying the Blockburger test in this setting as a means of ascertaining congressional intent, "punishment" must be the equivalent of a criminal conviction, and not simply the imposition of sentence. Congress could not have intended to allow two convictions for the same conduct, even if sentenced under only one; Congress does not create criminal offenses having no sentencing component. See United States v. Hudson & Goodwin, 7 Cranch 32, 11 U. S. 34 (1812); Tennessee v. Davis, 100 U. S. 257, 100 U. S. 275 (1880) (Clifford, J., dissenting). Page 470 U. S. 862 Cf. Fed.Rule Crim.Proc. 32(b)(1), which provides that the sentence is a necessary component of a "judgment of conviction."Applying this rule to the firearms statutes, it is clear that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon. "[W]hen received, a firearm is necessarily possessed." United States v. Martin, 732 F.2d 591, 592 (CA7 1984). [Footnote 9] In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.The legislative history of §§ 922(h) and 1202(a) supports this reading of congressional intent. Titles IV and VII, enacted together as components of the Omnibus Act, [Footnote 10] disclose"Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace."Lewis v. United States, 445 U. S. 55, 445 U. S. 66 (1980). Accordingly, "[e]ach [Title] seeks to keep a firearm from any person . . . who has been convicted' of a felony. . . ." Id. at 445 U. S. 64.Section 922(h), the receipt statute, is part of a "carefully constructed package of gun control legislation,' which had been in existence for many years." Batchelder, 442 U.S. at Page 470 U. S. 863 442 U. S. 120 (quoting Scarborough v. United States, 431 U. S. 563, 431 U. S. 570 (1977)). [Footnote 11] One principal purpose of Title IV was to make"it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency. . . ."S.Rep. No. 1097, 90th Cong., 2d Sess., 28 (1968).Section 1202(a), on the other hand, was a "last-minute Senate amendment" to the Omnibus Act, "hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U.S. at 404 U. S. 344 (footnote omitted). The circumstances surrounding consideration of Title VII and the haste in which it was enacted may well explain why it does not dovetail neatly with the prohibition that was, at the time of its passage, already contained in Title IV. [Footnote 12] Title VII was enacted as supplementary legislation; Title VII filled the gaps in and expanded the coverage of Title IV. [Footnote 13] In short, Page 470 U. S. 864 we are persuaded that Congress had no intention of creating duplicative punishment for one limited class of persons falling within the overlap between the two Titles -- convicted felons who receive firearms and who, by definition, possess them. The independent but overlapping statutes simply are not "directed to separate evils" under the circumstances. Albernaz, 450 U.S. at 450 U. S. 343. [Footnote 14]CHaving concluded that Congress did not intend petitioner's conduct to be punishable under both §§ 922(h) and 1202(a), the only remedy consistent with the congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U. S. 359, 459 U. S. 368 (1983).The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of Page 470 U. S. 865 the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility, and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U. S. 784, 395 U. S. 790-791 (1969); Sibron v. New York, 392 U. S. 40, 392 U. S. 54-56 (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.We emphasize that, while the Government may seek a multiple-count indictment against a felon for violations of §§ 922(h) and 1202(a) involving the same weapon where a single act establishes the receipt and possession, the accused may not suffer two convictions or sentences on that indictment. If, upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on both counts, he should instruct the jury as to the elements of each offense. Should the jury return guilty verdicts for each count, however, the district judge should enter judgment on only one of the statutory offenses.IIIWe hold that Congress did not intend a convicted felon in Ball's position to be convicted of both receiving a firearm in violation of 18 U.S.C. § 922(h) and possessing that firearm in violation of 18 U.S.C.App. § 1202(a). Accordingly, we vacate the judgment of the Court of Appeals and remand with instructions to have the District Court exercise its discretion to vacate one of the convictions.It is so ordered

U.S. Supreme CourtBall v. United States, 470 U.S. 856 (1985)Ball v. United StatesNo. 84-5004Argued January 9, 1985Decided March 26, 1985470 U.S. 856SyllabusPetitioner, a previously convicted felon, was arrested when the police found him in possession of another person's revolver that was reported missing; he reportedly threatened a neighbor with the revolver, and tried unsuccessfully to sell it. Petitioner was then indicted on charges of receiving a firearm in violation of 18 U.S.C. § 922(h)(1) and for possessing it in violation of 18 U.S.C.App. § 1202(a)(1). He was convicted in Federal District Court on both counts and sentenced to consecutive terms of imprisonment on the respective counts. The Court of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent.Held: Congress did not intend a convicted felon, in petitioner's position, to be punished under both § 922(h) and § 1202(a)(1). Congress recognized that a felon who receives a firearm inevitably also possesses it, and therefore did not intend to subject that person to two convictions for the same criminal act; the legislative history supports this reading of congressional intent. While the Government may seek a multiple-count indictment against a felon for violations of §§ 922(h) and 1202(a)(1) involving the same weapon where a single act establishes the receipt and the possession, the defendant may not suffer two convictions or sentences on that indictment. If the jury returns guilty verdicts for each count, the trial court should enter judgment on only one count. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention. Pp. 470 U. S. 859-865.734 F.2d 965, vacated and remanded.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., concurred in the judgment. STEVENS, J., filed an opinion concurring in the judgment, post, p. 470 U. S. 867. POWELL, J., took no part in the decision of the case. Page 470 U. S. 857

1962_45

MR. JUSTICE BRENNAN delivered the opinion of the Court.Section 792 of California's Agricultural Code, which gauges the maturity of avocados by oil content, prohibits the transportation or sale in California of avocados which contain "less than 8 percent of oil, by weight . . . Page 373 U. S. 134 excluding the skin and seed." [Footnote 1] In contrast, federal marketing orders approved by the Secretary of Agriculture gauge the maturity of avocados grown n Florida by standards which attribute no significance to oil content. [Footnote 2] This case presents the question of the constitutionality of the California statute insofar as it may be applied to exclude from California markets certain Florida avocados which, although certified to be mature under the federal regulations, do not uniformly meet the California requirement of 8% of oil.Appellants in No. 45, growers and handlers of avocados in Florida, brought this action in the District Court for the Northern District of California to enjoin the enforcement of § 792 against Florida avocados certified as mature under the federal regulations. Appellants challenged the constitutionality of the statute on three grounds: (1) that, under the Supremacy Clause, Art. VI, the California standard must be deemed displaced by the federal standard for determining the maturity of avocados grown in Florida; (2) that the application of the California statute to Florida-grown avocados denied appellants the Equal Page 373 U. S. 135 Protection of the Laws in violation of the Fourteenth Amendment; (3) that its application unreasonably burdened or discriminated against interstate marketing of Florida-grown avocados in violation of the Commerce Clause, Art. I, § 8. A three-judge District Court initially dismissed the complaint. 169 F. Supp. 774. On direct appeal, we held, Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, that the suit was one for a three-judge court under 28 U.S.C. § 2281, and presented a justiciable controversy to be tried on the merits. After a trial, the three-judge court denied an injunction against the enforcement of § 792 on the ground that the proofs did not establish that its application to Florida-grown avocados violated any provision of the Federal Constitution. 197 F. Supp. 780. The District Court held for several reasons that the Supremacy Clause did not operate to displace § 792: no actual conflict existed between the statute and the federal marketing orders; neither the Agricultural Act nor the marketing orders occupied the field to the exclusion of the state statute, and Congress had not ordained that a federal marketing order was to give a license to Florida producers to "market their avocados without further inspection by the states" after compliance with the federal maturity test. 197 F. Supp. at 787. Rather, the court observed, "[t]he Federal law does not cover the whole field of interstate shipment of avocados," but, by necessary implication, leaves the regulation of certain aspects of distribution to the States. Further, the District Court found no violation of the Equal Protection Clause, because the California statute was applicable on identical terms to Florida and California producers, and was reasonably designed to enforce a traditional and legitimate interest of the State of California in the protection of California consumers. The District Court concluded, finally, that § 792 did not unreasonably burden or discriminate against interstate commerce in out-of-state Page 373 U. S. 136 avocados -- that the 8% oil content test served, in practice, only to keep off California grocers' shelves fruit which was unpalatable because prematurely picked. This holding rested, in part, on the conclusion that mature Florida fruit had not been shown to be incapable of attaining 8% oil content, since only a very small fraction of Florida avocados of certain varieties in fact failed to meet the California test. [Footnote 3]Both parties have brought appeals here from the District Court's judgment: the Florida growers urge in No. 45 that the court erred in not enjoining enforcement of the state statute against Florida-grown avocados; in No. 49, the California state officials appeal on the ground that the action should have been dismissed for want of equity jurisdiction, rather than upon the merits. We noted probable jurisdiction of both appeals. 368 U.S. 964, 965. We affirm the judgment in the respect challenged by the cross-appeal in No. 49. In No. 45, we agree that appellants have not sustained their challenges to § 792 under the Supremacy and Equal Protection Clauses. However, we reverse and remand for a new trial insofar as the judgment sustains Page 373 U. S. 137 § 792 against appellants' challenge to the statute grounded on the Commerce Clause. We hold that the effect of the statute upon interstate commerce cannot be determined on the record now before us.The California statute was enacted in 1925. Like the federal marketing regulations applicable to appellants, this statute sought to ensure the maturity of avocados reaching retail markets. [Footnote 4] The District Court found on sufficient evidence that, before 1925, the marketing of immature avocados had created serious problems in California. [Footnote 5] An avocado, if picked prematurely, will not ripen properly, but will tend to decay or shrivel and become rubbery and unpalatable after purchase. Not only retail consumers, but even experienced growers, have difficulty in distinguishing mature avocados from the immature by physical characteristics alone. [Footnote 6] Thus, the District Court Page 373 U. S. 138 concluded, "[t]he marketing of . . . [immature] avocados cheats the consumer" and adversely affects demand for and orderly distribution of the fruit. 19 F. Supp. at 783.The federal marketing regulations were adopted pursuant to the Agricultural Adjustment Act, 7 U.S.C. §§ 601 et seq. The declared purposes of the Act are to restore and maintain parity prices for the benefit of producers of agricultural commodities, to ensure the stable and steady flow of commodities to consumers, and"to establish and maintain such minimum standards of quality and maturity . . . as will effectuate such orderly marketing of such agricultural commodities as will be in the public interest,"§ 2(3), 7 U.S.C. § 602(3). Whenever he finds that it would promote these declared policies, the Secretary is empowered, upon notice and hearing, to adopt federal marketing orders and regulations for a particular growing area, § 8c(3), (4), 7 U.S.C. § 608c(3), (4). Orders thus proposed by the Secretary become effective only when approved by a majority of the growers or producers concerned, § 8c(8), (9), 7 U.S.C. § 608c(8), (9).In 1954, after proceedings in compliance with the statute, 19 Fed.Reg. 3439, the Secretary promulgated orders governing the marketing of avocados grown in South Florida. [Footnote 7] The orders established an Avocado Administrative Committee, composed entirely of South Florida avocado growers and handlers. 7 CFR § 969.20. This Committee has authority to draft and recommend to the Secretary various marketing regulations governing the Page 373 U. S. 139 quality and maturity of South Florida avocados. The maturity test for the South Florida fruit is based upon a schedule of picking dates, sizes and weights annually drafted and recommended by the Committee and promulgated by the Secretary. [Footnote 8] The regulations forbid picking and shipping of any fruit before the prescribed date, although an exemption from the picking date schedule may be granted by the Committee. [Footnote 9] The regulations, drafted by the Committee and promulgated by the Secretary, concern other qualities and physical characteristics of Florida avocados besides maturity. See 22 Fed.Reg. 6205, 7 CFR §§ 51.3050 51.3053, 51.3064. All regulated avocados, including those shipped under picking date exemptions, must be inspected for compliance with certain quality standards by the Federal-State Inspection Service, a joint authority supervised by the United States and Florida Departments of Agriculture. Page 373 U. S. 140Almost all avocados commercially grown in the United States come either from Southern California or South Florida. The California-grown varieties are chiefly of Mexican ancestry, and, in most years, contain at least 8% oil content when mature. [Footnote 10] The several Florida species, by contrast, are of West Indian and Guatemalan ancestry. West Indian avocados, which constitute some 12% of the total Florida production, may contain somewhat less than 8% oil when mature and ready for market. They do not, the District Court found, attain that percentage of oil "until they are past their prime." 197 F. Supp. at 783. But that variety need not concern us in this case, since the District Court concluded on sufficient evidence that "poor shipping qualities and short retail store shelf life" make it commercially unprofitable, regardless of the oil test, to market the variety in California. On the other hand, the Florida hybrid and Guatemalan varieties, which do not encounter such handicaps, may reach maturity before they attain 8% oil content. The District Court concluded, nevertheless, that § 792 did not unreasonably interfere with their marketability, since these species "attain or exceed 8% oil content while in a prime commercial marketing condition," so that the California test was "scientifically valid as applied to" these varieties.The experts who testified at the trial disputed whether California's "percentage of oil" test or the federal marketing orders' test of picking dates and minimum sizes and weights was the more accurate gauge of the maturity of Page 373 U. S. 141 avocados. [Footnote 11] In adopting his calendar test of maturity for the varieties grown in South Florida, the Secretary expressly rejected physical and chemical test as insufficiently reliable guides for gauging the maturity of the Florida fruit. [Footnote 12]IWe consider first appellants' challenge to § 792 under the Supremacy Clause. That the California statute and the federal marketing orders embody different maturity tests is clear. However, this difference poses, rather than disposes of, the problem before us. Whether a State may constitutionally reject commodities which a federal authority has certified to be marketable depends upon whether the state regulation "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. By that test, we hold that § 792 is not such an obstacle; there is neither such actual conflict between the two schemes of regulation that both cannot stand in the same area nor evidence of a congressional design to preempt the field.We begin by putting aside two suggestions of the appellants which obscure, more than aid in, the solution of the problem. First, it is suggested that a federal license or certificate of compliance with minimum federal standards immunizes the licensed commerce from inconsistent or more demanding state regulations. While this suggestion draws some support from decisions which have invalidated direct state interference with the activities of interstate carriers, 348 U. S. Hayes Freight Lines, Inc., Page 373 U. S. 142 348 U. S. 61, even in that field of paramount federal concern, the suggestion has been significantly qualified, e.g., Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 362 U. S. 447-448; Kelly v. Washington, 302 U. S. 1; cf. Bradley v. Public Utilities Comm'n, 289 U. S. 92. That no State may completely exclude federally licensed commerce is indisputable, but that principle has no application to this case.Second, it is suggested that the coexistence of federal and state regulatory legislation should depend upon whether the purposes of the two laws are parallel or divergent. This Court has, on the one hand, sustained state statutes having objectives virtually identical to those of federal regulations, California v. Zook, 336 U. S. 725, 730-731; cf. De Veau v. Braisted, 363 U. S. 144, 363 U. S. 156-157; Parker v. Brown, 317 U. S. 341, and has, on the other hand, struck down state statutes where the respective purposes were quite dissimilar, First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n, 328 U. S. 152. The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons -- either that the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakably so ordained. See, e.g., Huron Portland Cement Co. v. Detroit, supra.AA holding of federal exclusion of state law is inescapable, and requires no inquiry into congressional design where compliance with both federal and state regulations is a Page 373 U. S. 143 physical impossibility for one engaged in interstate commerce, cf. Union Bridge Co. v. United States, 204 U. S. 364, 204 U. S. 399-401; Morgan v. Virginia, 328 U. S. 373; Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520. That would be the situation here if, for example, the federal orders forbade the picking and marketing of any avocado testing more than 7% oil, while the California test excluded from the State any avocado measuring less than 8% oil content. No such impossibility of dual compliance is presented on this record, however. As to those Florida avocados of the hybrid and Guatemalan varieties which were actually rejected by the California test, the District Court indicated that the Florida growers might have avoided such rejections by leaving the fruit on the trees beyond the earliest picking date permitted by the federal regulations, and nothing in the record contradicts that suggestion. Nor is there a lack of evidentiary support for the District Court's finding that the Florida varieties marketed in California "attain or exceed 8% oil content while in a prime commercial marketing condition," even though they may be "mature enough to be acceptable prior to the time that they reach that content. . . ." 197 F. Supp. at 783. Thus, the present record demonstrates no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards.BThe issue under the head of the Supremacy Clause is narrowed then to this: does either the nature of the subject matter, namely, the maturity of avocados, or any explicit declaration of congressional design to displace state regulation require § 792 to yield to the federal marketing orders? The maturity of avocados seems to be an inherently unlikely candidate for exclusive federal regulation. Certainly it is not a subject by its very nature admitting only of national supervision, cf. 53 U. S. S. 144� v. Board of Port Wardens, 12 How. 299, 53 U. S. 319-320. Nor is it a subject demanding exclusive federal regulation in order to achieve uniformity vital to national interests, cf. San Diego Building Trades Council v. Garmon,@ 359 U. S. 236, 359 U. S. 241-244.On the contrary, the maturity of avocados is a subject matter of the kind this Court has traditionally regarded as properly within the scope of state superintendence. Specifically, the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern. Many decades ago, for example, this Court sustained a State's prohibition against the importation of artificially colored oleomargarine (which posed no health problem), over claims of federal preemption and burden on commerce. In the course of the opinion, the Court recognized that the States have always possessed a legitimate interest in "the protection of . . . [their] people against fraud and deception in the sale of food products" at retail markets within their borders. Plumley v. Massachusetts, 155 U. S. 461, 155 U. S. 472. See also Crossman v. Lurman, 192 U. S. 189, 192 U. S. 199-200; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Savage v. Jones, 225 U. S. 501, 225 U. S. 525-529.It is true that, more recently, we sustained a federal statute broadly regulating the production of renovated butter. But we were scrupulous in pointing out that a State might nevertheless -- at least in the absence of an express contrary command of Congress -- confiscate or exclude from market the processed butter which had complied with all the federal processing standards "because of a higher standard demanded by a state for its consumers." A state regulation so purposed was, we affirmed, "permissible under all the authorities." [Footnote 13] Cloverleaf Page 373 U. S. 145 Butter Co. v. Patterson, 315 U. S. 148, 315 U. S. 162. That distinction is a fundamental one, which illumines and delineates the problem of the present case. Federal regulation by means of minimum standards of the picking, processing, and transportation of agricultural commodities, however comprehensive for those purposes that regulation may be, does not of itself import displacement of state control over the distribution and retail sale of those commodities in the interests of the consumers of the commodities within the State. Thus, while Florida may perhaps not prevent the exportation of federally certified fruit by superimposing a higher maturity standard, nothing in Cloverleaf forbids California to regulate their marketing. Congressional regulation of one end of the stream of commerce does not, ipso facto, oust all state regulation at the other end. Such a displacement may not be inferred automatically from the fact that Congress has regulated production and packing of commodities for the interstate market. We do not mean to suggest that certain local regulations may not unreasonably or arbitrarily burden interstate commerce; we consider that question separately, infra, pp. 373 U. S. 152-154. Here, we are concerned only whether partial congressional superintendence of the field (maturity for the purpose of introduction of Florida fruit into the stream of interstate commerce) automatically forecloses regulation of maturity by another State in the interests of that State's consumers of the fruit. Page 373 U. S. 146The correctness of the District Court's conclusion that § 792 was a regulation well within the scope of California's police powers is thus clear. While it is conceded that the California statute is not a health measure, neither logic nor precedent invites any distinction between state regulations designed to keep unhealthful or unsafe commodities off the grocer's shelves and those designed to prevent the deception of consumers. [Footnote 14] See, e.g., Hyrade Provision Co. v. Sherman, supra; Plumley v. Massachusetts, supra. Nothing appearing in the record before us affords any ground for departure in this case from our consistent refusal to draw such a distinction.CSince no irreconcilable conflict with the federal regulation requires a conclusion that § 792 was displaced, we turn to the question whether Congress has nevertheless ordained that the state regulation shall yield. The settled mandate governing this inquiry, in deference to the fact that a state regulation of this kind is an exercise of the "historic police powers of the States," is not to decree such a federal displacement "unless that was the clear and manifest purpose of Congress," Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230. In other words, we are not to conclude that Congress legislated the ouster of this California statute by the marketing orders in the absence Page 373 U. S. 147 of an unambiguous congressional mandate to that effect. We search in vain for such a mandate.The provisions and objectives of the Agricultural Adjustment Act bear little resemblance to those in which, only last Term, we found a preemptive design in Campbell v. Hussey, 368 U. S. 297. In the Federal Tobacco Inspection Act involved in that case, Congress had declared "uniform standards of classification and inspection" to be "imperative for the protection of producers and others engaged in commerce and the public interest therein." 7 U.S.C. § 511a. The legislative history was replete with references to a need for "uniform" or "official" standards which could harmonize the grading and inspection of tobacco at all markets throughout the country. Under the statute, a single set of standards was to be promulgated by the Secretary of Agriculture, "and the standards so established would be the official standards of the United States for such purpose." S.Rep. No. 1211, 74th Cong., 1st Sess. 1.Nothing in the language of the Agricultural Adjustment Act -- passed by the same Congress the very next day [Footnote 15] -- discloses a similarly comprehensive congressional design. There is but one provision of the statute which intimates any purpose to make agricultural production controls the monitors of retail distribution -- the reference to a policy of establishing such "minimum standards of quality and maturity and such grading and inspection requirements . . . as will effectuate . . . orderly marketing . . . in the public interest." 7 U.S.C. § 602(3). That language cannot be said, without more, to reveal a design that federal marketing orders should displace all state Page 373 U. S. 148 regulations. By its very terms, in fact, the statute purports only to establish minimum standards.Other provisions of the Act, and their history, militate even more strongly against federal displacement of these state regulations. First, the adoption of marketing agreements and orders is authorized only when the Secretary has determined that economic conditions within a particular growing area require federally supervised cooperation among the growers to alleviate those conditions. 7 U.S.C. § 608c(1), (2). Moreover, the relief afforded the growers is to be temporary; "the Secretary is directed to cease exercising such powers" when "the circumstances described . . . no longer exist." H.R.Rep. No. 1241, 74th Cong., 1st Sess. 4. And, consistently with these terms, the Secretary himself has characterized the marketing agreements as essentially "self-help programs" instituted and administered by the farmers involved. This view has recently been elaborated by the Secretary:"The Act itself does not impose regulations over the marketing of any agricultural commodity. It merely provides the authority under which an industry can develop regulations to fit its own situation and solve its own marketing problems."United States Department of Agriculture, Marketing Agreements and Orders, AMS-230 (rev. ed.1961), 3. See also United States Department of Agriculture, Agricultural Adjustment 1937-1938 (1939), 71.Second, the very terms of the statute require that the Secretary promulgate marketing orders "limited in their application to the smallest regional production areas" which he finds practicable, and the orders are to "prescribe such different terms, applicable to different production areas and marketing areas" as will serve to "give due recognition to the differences in production and marketing" Page 373 U. S. 149 between those areas. 7 U.S.C. § 608c(11). While this language is not conclusive on the question before us, it indicates that Congress contemplated -- quite by contrast to the design embodied in the Tobacco Inspection Act -- that there might be widespread regional variations in the standards governing production and processing. Thus, avocado growers in another region could, for example, propose -- and the Secretary would presumably adopt -- maturity regulations which would gauge the marketability of the fruit not by the calendar, as do the South Florida rules, but by the color of the skin, or the texture and color of the seed-coat, or perhaps even by oil content. Thus, if the Congress of 1935 really intended that distribution would be comprehensively governed by grower-adopted quality and maturity standards, and all state regulation of the same subject would be ousted, it does not seem likely that the statute would have invited local variations at the production end, while saying absolutely nothing about the effect of those production controls upon distribution for consumption.A third factor which strongly suggests that Congress did not mandate uniformity for each marketing order arises from the legislative history. The provisions concerning the limited duration and local application of marketing agreements received much attention from both House and Senate Committees reporting on the bill. Though recognizing that the powers conferred upon the Secretary were novel and extensive, both Committees concluded:"These and other restrictive provisions are . . . adequately drawn to guard against any fear that the regulatory power is so broad as to subject its exercise to the risk of abuse."H.R.Rep. No. 1241, 74th Cong., 1st Sess. 7; S.Rep. No. 1011, 74th Cong., 1st Sess. 3. The Committee Reports also discussed § 10(i), 7 U.S.C. § 610(i), which authorized federal-state cooperation Page 373 U. S. 150 in the administration of the program, and cautioned significantly:"Notwithstanding the authorization of cooperation contained in this section, there is nothing in it to permit or require the Federal Government to invade the field of the States, for the limitations of the act and the Constitution forbid federal regulation in that field, and this provision does not indicate the contrary. Nor is there anything in the provision to force States to cooperate. Each sovereignty operates in its own sphere, but can exert its authority in conformity, rather than in conflict, with that of the other."H.R.Rep. No. 1241, 74th Cong., 1st Sess. 22-23; S.Rep. No. 1011, 74th Cong., 1st Sess. 15. Thus, the revealed congressional design was apparently to do no more than to invite farmers and growers to get together, under the auspices of the Department of Agriculture, to work out local harvesting, packing and processing programs, and thereby relieve temporarily depressed marketing conditions. Had Congress meant the Act to have in addition a pervasive effect upon the ultimate distribution and sale of produce, evidence of such a design would presumably have accompanied the statute, as it did the Tobacco Inspection Act, see Campbell v. Hussey, supra. In the absence of any such manifestations, it would be unreasonable to infer that Congress delegated to the growers in a particular region the authority to deprive the States of their traditional power to enforce otherwise valid regulations designed for the protection of consumers.An examination of the operation of these particular marketing orders reinforces the conclusion we reach from this analysis of the terms and objectives of the statute. The regulations show that the Florida avocado maturity standards are drafted each year not by impartial experts in Washington or even in Florida, but rather by the South Page 373 U. S. 151 Florida Avocado Administrative Committee, which consists entirely of representatives of the growers and handlers concerned. It appears that the Secretary of Agriculture has invariably adopted the Committee's recommendations for maturity dates, sizes, and weights. [Footnote 16] Thus, the pattern which emerges is one of maturity regulations drafted and administered locally by the growers' own representatives, and designed to do no more than promote orderly competition among the South Florida growers. [Footnote 17]This case requires no consideration of the scope of the constitutional power of Congress to oust all state regulation of maturity, and we intimate no view upon that question. [Footnote 18] Page 373 U. S. 152 It is enough to decide this aspect of the present case that we conclude that Congress has not attempted to oust or displace state powers to enact the regulation embodied in § 792. The most plausible inference from the legislative scheme is that the Congress contemplated that state power to enact such regulations should remain unimpaired.IIWe turn now to appellants' arguments under the Equal Protection and Commerce Clauses.It is enough to dispose of the equal protection claim that we express our agreement with the District Court that the state standard does not work an "irrational discrimination as between persons or groups of persons," Goesaert v. Cleary, 335 U. S. 464, 335 U. S. 466; cf. Railway Express Agency, Inc. v. New York, 336 U. S. 106. While it may well be that arguably superior tests of maturity could be devised, we cannot say, in derogation of the findings of the District Court, that this possibility renders the choice made by California either arbitrary or devoid of rational relationship to a legitimate regulatory interest. Whether or not the oil content test is the most reliable indicator of marketability of avocados is not a question for the courts to decide; it is sufficient that, on this record, we should conclude, as we do, that oil content appears to be an acceptable criterion of avocado maturity.More difficult is the claim that the California statute unreasonably burdens or discriminates against interstate Page 373 U. S. 153 commerce because its application has excluded Florida avocados from the State. Although Florida and California were competitors in avocado production when the statute was passed in 1925, the present record permits no inference that the California statute had a discriminatory objective. [Footnote 19] Nevertheless it may be that the continued application Page 373 U. S. 154 of this regulation to Florida avocados has imposed an unconstitutional burden on commerce, or has discriminated against another State's exports of the particular commodity. Other state regulations raising similar problems have been found to be discriminatory or burdensome notwithstanding a legitimate state interest in some form of regulation -- either because they exceeded the limits necessary to vindicate that interest, Dean Milk Co. v. Madison, 340 U. S. 349, or because they unreasonably favored local producers at the expense of competitors from other States, Baldwin v. Seelig, Inc., 294 U. S. 511. Such a state regulation might also constitute an illegitimate attempt to control the conduct of producers beyond the borders of California, cf. Bibb v. Navajo Freight Lines, Inc., supra; Southern Pacific Co. v. Arizona, 325 U. S. 761, 325 U. S. 775.The District Court referred to these precedents, but nevertheless concluded that the California oil content test was not burdensome upon, or discriminatory against, interstate commerce. 197 F. Supp. at 786-787. However, we are unable to review that conclusion or decide whether the court properly applied the principles announced in these decisions, because we cannot ascertain what constituted the record on which the conclusion was predicated. Much of the appellants' offered proof consisted of depositions and exhibits designed to detail both the rejection of Florida avocados in California and the oil content of Florida avocados which had met the federal test, but which might nonetheless have been excluded from California markets. Page 373 U. S. 155The parties' own assumptions concerning the content of the record are in irreconcilable conflict: the appellants have argued the case on the apparent assumption that the depositions and exhibits were admitted before the District Court; the appellees, on the other hand, have assumed both in their briefs and in oral argument that the disputed evidence was not admitted. This lack of consensus is altogether understandable in light of the confusion created by the District Court's evidentiary rulings. The appellees objected to the introduction of the disputed materials on several grounds, both during and after the trial. The court expressly reserved its rulings on the issue of admissibility, and, after the entry of its order on the merits of the case, made a supplemental "ruling on evidentiary matters" in which it stated that the disputed exhibits and depositions "are not admitted into evidence, but have been considered by the Court as an offer of proof by the plaintiffs. . . ." The earlier memorandum of the court explained that it would "assume, arguendo, that the exhibits and depositions offered by plaintiffs are all admissible." 197 F. Supp. at 782. If this was intended to mean that appellants would not have made out a case for relief even were the evidence to be admitted, then there would have been no need to rule on admissibility.But we are unable to determine, just as the parties were unable to agree, whether the District Court viewed the evidence in that posture. [Footnote 20] Page 373 U. S. 156Thus, the only evidence which would seem to support an injunction on the ground of burden on interstate commerce has never been formally admitted to the record in this case. For this Court to reverse and order an injunction on the basis of that evidence would be, in effect, to admit the contested depositions and exhibits on appeal without ever affording the appellees an opportunity to argue their seemingly substantial objections. [Footnote 21] To assume the admissibility of the evidence under these circumstances would be to deny the appellees their day in court as to a disputed part of the case on which the trial court has never ruled, because its view of the law evidently made such a ruling unnecessary. Cf. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U. S. 525, 356 U. S. 533; Fountain v. Filson, 336 U. S. 681; Globe Liquor Co. v. San Roman, 332 U. S. 571. On the other hand, to affirm the District Court would require us to make equally impermissible assumptions as to the state of the record. Cf. Florida v. United States, 282 U. S. 194, 282 U. S. 215.For these reasons, we conclude that the judgment must, to the extent appealed from in No. 45, be reversed, and the case remanded to the District Court for a new trial of appellants' Commerce Clause contentions. We intimate no view with respect to either the admissibility or the probative value of the disputed evidence, or of any other evidence which might be brought forth by either party concerning this aspect of the case. Page 373 U. S. 157IIIIn No. 49, the state officers cross-appeal on the ground that the District Court should have dismissed the action for want of equity, rather than for lack of merit. Their contention is that there was insufficient showing of injury to the Florida growers to invoke the District Court's equity jurisdiction. We reject that contention, and affirm the judgment insofar as it is challenged by the cross-appeal.In Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73, we held that, because of the Florida growers' allegations that California officials had consistently condemned Florida avocados as unfit for sale in California,"thus requiring appellants [the Florida growers] -- to prevent destruction and complete loss of their shipments -- to reship the avocados to and sell them in other States,"it was evident that"there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the merits."362 U.S. at 362 U. S. 85-86. In view of our mandate in Jacobsen, therefore, the District Court necessarily assumed jurisdiction and heard the case on its merits. Cf. United States v. Haley, 371 U. S. 18.Even on the present ambiguous record, we think that the Florida growers have demonstrated sufficient injury to warrant at least a trial of their allegations. In the California officials' briefs below, it was conceded that the Florida growers had suffered damage in the amount of some $1,500 by reason of the enforcement of the statute. Before the bar of this Court, it was conceded that the State, in objecting to the growers' proffered evidence, did not dispute the claim that some shipments of Florida avocados had, in fact, been rejected by California for failure to comply with the oil content requirement. Indeed, the Page 373 U. S. 158 State conceded in its pleadings before the trial court that rejections of Florida avocados had averaged in recent years as much as 6.4% of the total shipments of Florida fruit into California. While these concessions were not corroborated by statistical proofs at trial, and thus do not form an adequate basis for the entry of a final injunction, they nevertheless supplied an adequate basis, apart from the requirement of our remand, for the District Court's proceeding to trial on the merits.In addition, it is clear that the California officials will continue to enforce the statute against the Florida-grown avocados, for the State's answer to the complaint declared that these officials"have in the past and now stand ready to perform their duties under their oath of office should they acquire knowledge of violations of the Agricultural Code of the State of California."Thus, the District Court, both on the pleadings before it and in light of our opinion in Jacobsen, properly heard the remanded case on the merits, and did not err in refusing to dismiss for want of equity jurisdiction.The cross-appellants rely upon the court's finding of fact that "[p]laintiffs have neither suffered nor been threatened with irreparable injury." This finding was, however, adopted pursuant to that court's prior opinion, which stated that"[p]laintiffs' monetary losses as a result of the rejected shipments are not clearly established, but, at most, do not appear to be over two or three thousand dollars."197 F. Supp. at 783-784. We read this finding as importing no more than the District Court's view that whatever harm or damage the Florida growers might have suffered fell short of the "irreparable injury" requisite for the entry of an injunction against enforcement of the statute.The judgment of the District Court is reversed, and the cause is remanded for a new trial limited to appellants' Page 373 U. S. 159 claim in No. 45 that the enforcement of § 792 unreasonably burdens or discriminates against interstate commerce. In the respect challenged by the cross-appeal in No. 49, the judgment is affirmed.It is so ordered

U.S. Supreme CourtFlorida Avocado Growers v. Paul, 373 U.S. 132 (1963)Florida Lime & Avocado Growers, Inc. v. PaulNo. 45Argued January 8, 1963Decided May 13, 1963*373 U.S. 132SyllabusAppellants, who are engaged in the business of growing, packing and marketing Florida avocados in interstate commerce, sued in a Federal District Court to enjoin appellees, state officers of California, from enforcing § 792 of the California Agricultural Code, which prohibits the transportation or sale in California of avocados containing less than 8% of oil by weight, against Florida avocados certified as mature under federal regulations issued under the Federal Agricultural Marketing Agreement Act of 1937. They contended that § 792 of the California statute, as so applied, was unconstitutional, because, (1) under the Supremacy Clause, it must be deemed displaced by the federal standard for determining the maturity of avocados grown in Florida; (2) its application to Florida avocados denied appellants the equal protection of the laws in violation of the Fourteenth Amendment, and (3) its application to them unreasonably burdened or discriminated against interstate marketing of Florida avocados in violation of the Commerce Clause. A three-judge District Court convened to hear the case denied an injunction on the ground that the proofs did not establish that application of § 792 to Florida avocados violated any provision of the Federal Constitution.Held:1. Section 792 is not invalid under the Supremacy Clause, because there is neither such actual conflict between the two schemes of regulation that both cannot stand in the same area, nor is there evidence of a congressional design to preempt the field. Pp. 373 U. S. 141-152.(a) The present record demonstrates no inevitable collision between the two schemes of regulation, despite the dissimilarity of the standards. Pp. 373 U.S. 142-143. Page 373 U. S. 133(b) The subject matter of the California regulation, while not concerned with health or safety, is one traditionally within the scope of the power of the States to prevent deception of consumers in the retail marketing of foodstuffs. Pp. 373 U. S. 143-146.(c) Neither the terms nor the history of the Federal Agricultural Marketing Agreement Act of 1937 discloses a congressional intent to displace traditional state powers to regulate the retail distribution of agricultural commodities. Pp. 373 U. S. 146-152.2. Section 792 does not violate the Equal Protection Clause of the Fourteenth Amendment, because it does not work an irrational discrimination between persons or groups of persons. P. 373 U. S. 152.3. The findings of the District Court with respect to the effect of § 792 upon interstate commerce cannot be reviewed, because of substantial uncertainty as to the content of the record on which those findings were predicated. Therefore, the judgment is reversed in this respect, and the case is remanded to the District Court for a new trial of appellants' contentions that § 792 unreasonably burdens or discriminates against interstate commerce in Florida avocados. Pp. 373 U. S. 152-156.4. Since the appellants showed sufficient injury to warrant at least a trial of their allegations, the District Court properly refused to dismiss the complaint for want of equity jurisdiction. Pp. 373 U. S. 157-159.197 F. Supp. 780, affirmed in part, reversed in part, and remanded.

1985_84-1686

JUSTICE BLACKMUN delivered the opinion of the Court.The Internal Revenue Code and the Social Security Act direct the Secretary of the Treasury to "intercept" certain Page 475 U. S. 853 tax refunds payable to persons who have failed to meet child support obligations. In this case, the United States Court of Appeals for the Ninth Circuit ruled that payments involving earned-income credits could be intercepted. 752 F.2d 1433 (1985). We granted certiorari, 472 U.S. 1016 (1985), because this ruling was in conflict with decisions of the Courts of Appeals for the Second and Tenth Circuits. See Rucker v. Secretary of Treasury, 751 F.2d 351 (CA10 1984); Nelson v. Regan, 731 F.2d 105 (CA2), cert. denied sub nom. Manning v. Nelson, 469 U.S. 853 (1984).IAStanley Sorenson, the husband of petitioner Marie Sorenson, was legally obligated to make child support payments for a child of his previous marriage who was in the custody of his former wife. Mr. Sorenson was unemployed because of a disability, and fell behind on those support payments. His former wife applied for welfare benefits from the State of Washington. Since 1975, the program for Aid to Families with Dependent Children (AFDC) has required, as a condition of eligibility, that applicants for welfare assign to the State concerned any right to child support payments that has accrued at the time of assignment. Pub.L. 93-647, § 101(c)(5)(C), 88 Stat. 2359, 42 U.S.C. § 602(a)(26)(A). [Footnote 1] Thus, Stanley Sorenson's former wife turned over to the State her right to collect the payments Mr. Sorenson had failed to make.Stanley and Marie Sorenson also had their own dependent child living with them. They thus were potentially eligible Page 475 U. S. 854 to receive an earned-income credit. For the calendar year 1981, the time relevant to this lawsuit, § 43 of the Internal Revenue Code of 1954, as amended, provided that an individual responsible for the support of a child living with him was allowed"as a credit against the tax imposed . . . for the taxable year an amount equal to 10 percent of so much of the earned income for the taxable year as does not exceed $5,000."As the amount of the taxpayer's earned income increased, the amount of the credit decreased, reaching zero when the taxpayer's adjusted gross income reached $10,000. [Footnote 2]Unlike certain other credits, which can be used only to offset tax that would otherwise be owed, the earned-income credit is "refundable." Thus, if an individual's earned-income credit exceeds his tax liability, the excess amount is "considered an overpayment" of tax under § 6401(b), as it then read, of the 1954 Code. [Footnote 3] Subject to specified setoffs, Page 475 U. S. 855 § 6402(a) directs the Secretary to credit or refund "any overpayment" to the person who made it. [Footnote 4] An individual who is entitled to an earned-income credit that exceeds the amount of tax he owes thereby receives the difference as if he had overpaid his tax in that amount.BIn February, 1982, petitioner and her husband timely filed a joint federal income tax return for the calendar year 1981. Petitioner had worked during part of that year, and all the Sorenson family income for the year was attributable to her wages and unemployment compensation benefits. By the return so filed, the Sorensons anticipated a refund of $1,408.90, consisting in part of excess withholding on petitioner's wages and in part of an earned-income credit. The Internal Revenue Service, however, notified the Sorensons that $1,132 of the anticipated refund was being retained, under the authority granted it by the tax-intercept law, and Page 475 U. S. 856 would be paid over to the State of Washington because that State had been assigned the right to collect Mr. Sorenson's unpaid child support obligations. See Second Declaration of Peter Greenfield, Exh. B, Sorenson v. Secretary of Treasury, No. C82-441C (WD Wash.).The tax-intercept law essentially directs the Secretary to give priority to a State's claim for recoupment of welfare payments made to a family who failed to receive child support, see § 402(a)(26)(A) of the Social Security Act, as amended, 42 U.S.C. § 602(a)(26)(A), over an individual's claim for refund of tax overpayment. See § 6402(a), as amended, of the 1954 Code. The intercept law originally was enacted as part of the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub.L. 97-35, § 2331, 95 Stat. 860. First, OBRA § 2331(a) added § 464 to the Social Security Act, 42 U.S.C. § 664. That section directs the Secretaries of the Treasury and of Health and Human Services to establish a scheme by which a State is to notify the Secretary of the Treasury of persons who owe past-due child support payments that have been assigned to it, and directs the Secretary of the Treasury to intercept tax-refund payments that would otherwise be paid to those persons:"Upon receiving notice from a State agency administering [an AFDC plan] . . . that a named individual owes past-due support which has been assigned to such State pursuant to section 402(a)(26), the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual's Page 475 U. S. 857 home address) for distribution in accordance with section 467(b)(3)."§ 464(a), 42 U.S.C. § 664(a). [Footnote 5]Section 2331(c) of OBRA amended the Internal Revenue Code. It added a new subsection to the provision governing the Secretary of the Treasury's authority to refund overpayments to taxpayers. The new subsection, § 6402(c), requires the Secretary to withhold from the refund otherwise due the taxpayer the amount owed the State in past-due child support and to remit the amount withheld to the State:"The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person's future liability for an internal revenue tax."CAfter negotiations concerning the status of tax refunds in community property States such as Washington -- issues that are not germane to the question now presented to this Court -- the Secretary ultimately withheld only half of the refund increment the Sorensons claimed. Petitioner then filed Page 475 U. S. 858 a class action in the United States District Court for the Western District of Washington seeking, among other things, a declaration that § 464 of the Social Security Act did not reach a refund attributable to an excess earned-income credit. The District Court rejected the Secretary's jurisdictional arguments, which were renewed on appeal to the Court of Appeals but which are not pressed in this Court. See Brief for Respondents 5, n. 1. But it agreed with the Secretary's arguments on the merits, and granted summary judgment for the Government. 557 F. Supp. 729 (1982).The Court of Appeals affirmed that judgment. 752 F.2d 1433 (CA9 1985). It rejected petitioner's statutory construction arguments, and held that, since the Code expressly defined excess earned-income credits as "overpayments" and disbursed those excess credits to recipients through the income tax refund process, the credits were "payable as' refunds of federal taxes paid" and therefore could be intercepted. Id. at 1441 (emphasis in original). Congress used the broad terms "any amounts" and "any overpayment" in the tax-intercept law, and gave no indication that it intended to exclude earned-income credit payments from these terms.The Court of Appeals also rejected petitioner's argument that the Secretary's position conflicted with Congress' intention to provide benefits to the poor through the earned-income credit. First, the legislative history of § 43 did not suggest that the earned-income credit was intended primarily as a type of welfare grant; rather, it was meant to negate the disincentive to work caused by Social Security taxes. Since the earned-income credit was payable as a lump sum, it was more like excess withholding, which was clearly reachable by the intercept program, than it was like wages, a portion of which Congress exempted from the assessment and collection process. See 752 F.2d at 1443, n. 1. Second, had Congress intended to exempt earned-income credit payments from the intercept program, it could have done so expressly. Instead, it provided that any amount payable Page 475 U. S. 859 through the federal tax-refund process might be intercepted. "In the face of this rather clear statutory mandate," said the Court of Appeals, "we conclude that we are not free to speculate that Congress intended otherwise." Id. at 1443.IIPetitioner advances two arguments to support her claim that an excess earned-income credit cannot be intercepted. First, she claims that the language and structure of the interlocking statutory provisions that make up the intercept law exclude an earned-income credit from its reach: excess earned-income credits are neither "overpayments" nor "refunds of Federal taxes paid," and only those items are subject to interception. Second, she claims that permitting interception of an earned-income credit would frustrate Congress' aims in providing the credit, and thus that Congress could not have intended the intercept law to reach earned-income credits. We find neither argument persuasive.AThe Internal Revenue Code's treatment of earned-income credits supports the Government's position. An individual can receive the amount by which his entitlement to an earned-income credit exceeds his tax liability only because § 6401(b) of the Code defines that amount as an "overpayment," and § 6402 provides a mechanism for disbursing overpayments, namely, the income tax refund process. The refundability of the earned-income credit is thus inseparable from its classification as an overpayment of tax. Petitioner therefore acknowledges that the excess earned-income credit is an "overpayment" for purposes of § 6402(a), the general provision that authorizes all tax refunds. See n 4, supra. If it were not, the Secretary would lack authorization for refunding it to her. She claims, however, that, while an excess earned-income credit is an "overpayment" for purposes of § 6402(a), it is not an "overpayment" for purposes of § 6402(c), which requires that the "amount of any overpayment . . . Page 475 U. S. 860 shall be reduced by the amount of any past-due support" assigned to the State.The normal rule of statutory construction assumes that "identical words used in different parts of the same act are intended to have the same meaning.'" Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 293 U. S. 87 (1934), quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 286 U. S. 433 (1932). That the Internal Revenue Code includes an explicit definition of "overpayment" in the same subchapter strengthens the presumption. And that both subsections concern the tax refund treatment of "overpayment[s]" is especially damaging to any claim that"the words, though in the same act, are found in such dissimilar connections as to warrant the conclusion that they were employed in the different parts of the act with different intent."Stockholms Enskilda Bank, 293 U.S. at 293 U. S. 87.Petitioner and the two Courts of Appeals that have excluded excess earned-income credits from the definition of "overpayment" used in § 6402(c) offer two bases for their position. First, they believe that § 6402(c) limits § 6401(b)'s broad definition "by [using] the phrase overpayment to be refunded to the person making the overpayment.'" Nelson v. Regan, 731 F.2d at 111; see Rucker v. Secretary of Treasury, 751 F.2d at 356. Not all overpayments, they suggest, are refunded to persons who "made" them, since some -- those consisting of earned-income credits -- may be refunded to persons who actually have not paid any tax. We disagree. All refunds made by the Secretary under § 6402(a) are paid to "the person who made the overpayment." The phrase merely identifies the person entitled to the refund; it does not restrict the nature of the refund itself. Petitioner must characterize herself as a person who has "made" an overpayment; otherwise, she cannot claim her excess earned-income credit. The phrase in § 6402(c) on which petitioner and the Second and Tenth Circuits relied is virtually identical to the phrase used in § 6402(a). Since the words cannot have Page 475 U. S. 861 the limiting effect petitioner proposes when used in § 6402(a), no justification exists for giving them such a construction in § 6402(c).Second, petitioner and the Second and Tenth Circuits perceive a tension between § 6401(b)'s and § 6402(a)'s treatment of excess earned-income credits and § 464(a)'s treatment of interceptable amounts. As used in those Code sections, "overpayment" includes more than "refunds of Federal taxes paid," the phrase used in the Social Security Act. Since § 464 and § 6402(c) were enacted simultaneously as part of OBRA, petitioner and the two Circuits believe that § 6402(c) should be harmonized with § 464, rather than with §§ 6401(b) and 6402(a). See Rucker v. Secretary of Treasury, 751 F.2d at 357; Nelson v. Regan, 731 F.2d at 111.This second argument, it seems to us, misperceives the structure of the tax-intercept law, and manufactures a tension that need not exist. OBRA's placement of provisions regarding interception in both Acts reflects a division of functions. The tax-intercept program lies at the intersection of the Social Security Act's concern in Subchapter IV, Part D, with child support, and the Internal Revenue Code's concern in Chapter 65, Subchapter A, with the treatment of credits in the tax-refund process. Section 464 addresses the concerns of the States that have received AFDC-related grants. It defines past-due child support, authorizes procedures by which the States can notify the Secretary of the Treasury of their entitlement to recover such past-due support, and directs the Secretary to aid the States, through his control over the tax-refund process, in recouping that support. Sections 6401 and 6402 address the operation of the tax-refund process under the Internal Revenue Code. They define the status of certain tax credits, set up a mechanism for disbursing refunds, and direct the Secretary to divert certain amounts from the refund process. To the extent that the tax-intercept law regulates the relationship of the Secretary of the Treasury to refund claimants, it does so through Page 475 U. S. 862 § 6402, and not through a provision that governs the Secretary's relationship to state agencies.Petitioner, however, views § 6402(c)'s reference to § 464 as indicating that § 464(a) is meant to be read into § 6402(c) as a limitation on the Secretary's intercept powers. This argument depends on a somewhat strained construction of § 6402(c)'s statement that"[t]he amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support . . . owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act."Petitioner claims that"[t]he words 'in accordance with section 464 of the Social Security Act' . . . do not modify 'has been notified by a State,' as one might initially assume. Rather they belatedly modify the words 'shall be reduced.'"Brief for Petitioner 18. In petitioner's view, her construction would lead to the conclusion that a refund can be reduced only to the extent that the refund represents a refund of tax actually paid, since that is all § 464(a) permits.We disagree with both petitioner's construction of § 6402(c) and her reading of § 464(a). First, it seems far more plausible that the words modify the nearest verb. If they are given this more natural reading, then § 6402(c) directs the Secretary to intercept only that amount which properly is classified as past-due support and of which he properly has been notified.But even if the reference in § 6402(c) to § 464 were read to refer solely to § 464(a), [Footnote 6] nothing in that subsection exempts excess earned-income credits from interception. Petitioner and the Second and Tenth Circuits recast their Page 475 U. S. 863 argument regarding the meaning of "overpayment" by contending that the amount of a refund that is attributable to an excess earned-income credit is not a "refun[d] of Federal taxes paid," and that §464(a) permits interception of only "amounts, as refunds of Federal taxes paid":"A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer's liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax."Rucker v. Secretary of Treasury, 751 F.2d at 356. But just as eligibility for an earned-income credit does not depend upon an individual's actually having paid any tax, the Code's classification of the credit as an "overpayment" to be refunded is similarly independent of the individual's actually having made any payment. Cf. § 6401(c). The Ninth Circuit correctly held that, to the extent an excess earned-income credit is "payable" to an individual, it is payable as if it were a refund of tax paid. 752 F.2d at 1441. Section 464(a)'s reference to the tax-refund process is best understood as a directive to the Secretary that he follow the procedures established by the Internal Revenue Code for calculating and disbursing refunds, rather than as an attempt implicitly to redefine terms given special meaning by the Code.BNor do we agree with petitioner's claim that Congress did not intend the intercept program to reach excess earned-income credits. Petitioner and the Government agree that Congress never mentioned the earned-income credit in enacting OBRA. See Brief for Petitioner 24; Tr. of Oral Arg. 21. But it defies belief that Congress was unaware, when it provided in § 6402(c) that "any overpayment to be refunded . . . shall be reduced by the amount of any past-due support" (emphasis Page 475 U. S. 864 added), that this would include refunds attributable to excess earned-income credits. Congress had previously expressly defined an excess earned-income credit as an "overpayment," in § 6401(b) of the Internal Revenue Code -- the section immediately preceding the section to which Congress added the intercept provision. [Footnote 7]What petitioner and the Second and Tenth Circuits are really claiming is that the intercept law should be read narrowly to avoid frustrating the goals of the earned-income credit program. The earned-income credit was enacted to reduce the disincentive to work caused by the imposition of Social Security taxes on earned income (welfare payments are not similarly taxed), to stimulate the economy by funneling funds to persons likely to spend the money immediately, and to provide relief for low-income families hurt by rising food and energy prices. [Footnote 8] Each is an undeniably important objective. It is impossible, however, for us to say that these goals outweigh the goals served by the subsequently enacted tax-intercept program -- securing child support from absent Page 475 U. S. 865 parents whenever possible and reducing the number of families on welfare. [Footnote 9] Congress of course could conclude that families eligible for earned-income credits have a more compelling claim to the funds involved than do either the States or non-AFDC families. But it is equally clear that Congress could have decided that the more pressing need was to alleviate the "devastating consequences for children and the taxpayers" of the epidemic of nonsupport. See Hearings before the Senate Committee on Finance on Spending Reduction Proposals, 97th Cong., 1st Sess., pt. 1, p. 34 (1981) (statement of Secretary Schweiker). [Footnote 10]The ordering of competing social policies is a quintessentially legislative function. In light of Congress' decision to direct the interception of any overpayment otherwise refundable to a taxpayer, the Ninth Circuit correctly refused to "speculate that Congress intended otherwise." 752 F.2d at 1443. Its judgment, accordingly, is affirmed. Page 475 U. S. 866It is so ordered

U.S. Supreme CourtSorenson v. Secretary of Treasury, 475 U.S. 851 (1986)Sorenson v. Secretary of the TreasuryNo. 84-1686Argued January 15, 1986Decided April 22, 1986475 U.S. 851SyllabusThe Internal Revenue Code (IRC) allows an individual responsible for the support of a child living with him a credit against income taxes due equal to a certain percentage of so much of earned income as does not exceed a specified amount. If the credit exceeds tax liability, the excess is considered "an overpayment" of tax under IRC § 6401(b). Section 6402(a) provides for a refund of "any overpayment" to the person who made it. Section 6402(c) requires the amount of "any overpayment" to be reduced by the amount of any past-due child support payments assigned to a State. Section 464 of the Social Security Act (SSA) directs the Secretary of the Treasury to "intercept" tax refunds payable to persons who have failed to meet child support obligations that have been assigned to a State. When petitioner's husband fell behind in support payments for a child of a previous marriage who was in the custody of his former wife, the latter, upon applying for welfare benefits from the State of Washington, assigned to the State, as required by the Aid to Families with Dependent Children program, her right to collect the unpaid child support payments. Petitioner and her husband, who had their own dependent child living with them, filed a joint federal income tax return for 1981 in which all income was attributable to petitioner's wages and unemployment compensation benefits and in which they anticipated a refund based in part on an earned-income credit. The Internal Revenue Service, however, notified them that a certain amount of the anticipated refund was being retained, under the authority of the tax-intercept law, and would be paid over to the State of Washington. Petitioner then filed a class action in Federal District Court, seeking a declaration that § 464 of the SSA did not reach a refund attributable to an excess earned-income credit. The District Court granted summary judgment for the Government, and the Court of Appeals affirmed.Held: An excess earned-income credit can properly be intercepted under the applicable statutes. Pp. 475 U. S. 859-865.(a) The IRC's treatment of earned-income credits supports the Government's position. The refundability of that credit is inseparable from its classification as an overpayment of tax. It is an "overpayment" not only for purposes of § 6402(a), but also for purposes of § 6402(c). Eligibility Page 475 U. S. 852 for an earned-income credit does not depend upon an individual's actually having paid any tax. The IRC's classification of the credit as an "overpayment" to be refunded is similarly independent of the individual's actually having made any payment. To the extent an excess credit is "payable" to an individual, it is payable as if it were a refund of tax paid. Pp. 475 U. S. 859-863.(b) There is no support for petitioner's claim that Congress did not intend the tax-intercept program to reach excess earned-income credits. Although Congress never mentioned the earned-income credit in enacting the Omnibus Budget Reconciliation Act of 1981, which added § 6902(c) to the IRC, it must have been aware, when it provided in § 6402(c) that "any overpayment" to be refunded shall be reduced by the amount of any past-due child support, that this would include refunds attributable to excess earned-income credits. And, although the goals of the earned-income credit -- to reduce the disincentive to work caused by Social Security taxes on earned income, to stimulate the economy by funneling funds to persons likely to spend the money immediately, and to provide for relief for low-income families hurt by rising food and energy prices -- are important, it cannot be said that Congress concluded that they outweigh the goals served by the subsequently enacted tax-intercept program -- securing child support from absent parents and reducing the number of families on welfare. Pp. 863-865.752 F.2d 1433, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 866.

1978_77-515

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Holt is a small, largely rural, unincorporated community located on the northeastern outskirts of Tuscaloosa, the fifth largest city in Alabama. Because the community is within the three-mile police jurisdiction circumscribing Tuscaloosa's corporate limits, its residents are subject to the city's "police [and] sanitary regulations." Ala.Code § 11-40-10 (1975). [Footnote 1] Holt residents are also subject to the criminal jurisdiction of the city's court, Ala.Code § 12-14-1 (1975) [Footnote 2] and to the city's Page 439 U. S. 62 power to license businesses, trades, and professions, Ala.Code § 11-51-91 (175). [Footnote 3] Tuscaloosa, however, may collect from businesses in the police jurisdiction only one-half of the license fee chargeable to similar businesses conducted within the corporate limits. Ibid.In 1973, appellants, an unincorporated civic association and seven individual residents of Holt, brought this statewide class action in the United States District Court for the Northern District of Alabama [Footnote 4] challenging the constitutionality of these Alabama statutes. They claimed that the city's extraterritorial exercise of police powers over Holt residents, without a concomitant extension of the franchise on an equal footing with those residing within the corporate limits, denies residents Page 439 U. S. 63 of the police jurisdiction rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court denied appellants' request to convene a three-judge court pursuant to 28 U.S.C. § 2281 (1970 ed.) and dismissed the complaint for failure to state a claim upon which relief could be granted. Characterizing the Alabama statutes as enabling Acts, the District Court held that the statutes lack the requisite statewide application necessary to convene a three-judge District Court. On appeal, the Court of Appeals for the Fifth Circuit ordered the convening of a three-judge court, finding that the police jurisdiction statute embodies "a policy of statewide concern.'" Holt Civic Club v. Tuscaloosa, 525 F.2d 653, 655 (1975), quoting Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 295 U. S. 94 (1935).A three-judge District Court was convened, but appellants' constitutional claims fared no better on the merits. Noting that appellants sought a declaration that extraterritorial regulation is unconstitutional per se, rather than ar extension of the franchise to police jurisdiction residents, the District Court held simply that "[e]qual protection has not been extended to cover such contention." App. to Juris.Statement 2a. The court rejected appellants' due process claim without comment. Accordingly, appellees' motion to dismiss was granted.Unsure whether appellants' constitutional attack on the Alabama statutes satisfied the requirements of 28 U.S.C. § 2281 (1970 ed.) for convening a three-judge district court, we postponed consideration of the jurisdictional issue until the hearing of the case on the merits. 435 U.S. 914 (1978). We now conclude that the three-judge court was properly convened, and that appellants' constitutional claims were properly rejected.IBefore its repeal, [Footnote 5] 28 U.S.C. § 2281 (1970 ed.) required that a three-judge district court be convened in any case in Page 439 U. S. 64 which a preliminary or permanent injunction was sought to restrain"the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute. . . ."Our decisions have interpreted § 2281 to require the convening of a three-judge district court"where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy."Board of Regents v. New Left Education Project, 404 U. S. 541, 404 U. S. 542 (1972). Relying on Moody v. Flowers, 387 U. S. 97 (1967), appellees contend, and the original single-judge District Court held, that Alabama's police jurisdiction statutes lack statewide impact.A three-judge court was improperly convened in Moody because the challenged state statutes had "limited application, concerning only a particular county involved in the litigation. . . ." Id. at 387 U. S. 104. In contrast, appellants' constitutional attack focuses upon a state statute that creates the statewide system under which Alabama cities exercise extraterritorial powers. In mandatory terms, the statute provides that municipal police and sanitary ordinances"shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town. [Footnote 6]"Clearly, Alabama's police Page 439 U. S. 65 jurisdiction statutes have statewide application. See, e.g., Sailors v. Board of Education, 387 U. S. 105, 387 U. S. 107 (1967). That the named defendants are local officials is irrelevant where, as here, those officials are "functioning pursuant to a statewide policy and performing a state function." Moody v. Flowers, supra, at 387 U. S. 102; Spielman Motor Sales Co. v. Dodge, supra, at 295 U. S. 94-95. The convening of a three-judge District Court was proper.IIAppellants' amended complaint requested the District Court to declare the Alabama statutes unconstitutional and to enjoin their enforcement insofar as they authorize the extraterritorial exercise of municipal powers. Seizing on the District Court's observation that "[appellants] do not seek extension of the franchise to themselves," appellants suggest that their complaint was dismissed because they sought the wrong remedy.The unconstitutional predicament in which appellants assertedly found themselves could be remedied in only two ways: (1) the city's extraterritorial power could be negated by invalidating the State's authorizing statutes, or (2) the right to vote in municipal elections could be extended to residents of the police jurisdiction. We agree with appellants that a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one. Under the Federal Rules of Civil Procedure,"every final judgment shall grant the relief Page 439 U. S. 66 to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."Rule 54(c). Thus, although the prayer for relief may be looked to for illumination when there is doubt as to the substantive theory under which a plaintiff is proceeding, its omissions are not, in and of themselves, a barrier to redress of a meritorious claim. See, e.g., 6 J. Moore, W. Taggart, & J. Wicker, Moore's Federal Practice � 54.62, pp. 1261-1265 (2d ed.1976). But while a meritorious claim will not be rejected for want of a prayer for appropriate relief, a claim lacking substantive merit obviously should be rejected. We think it is clear from the pleadings in this case that appellants have alleged no claim cognizable under the United States Constitution.AAppellants focus their equal protection attack on § 11-40-10, the statute fixing the limits of municipal police jurisdiction and giving extraterritorial effect to municipal police and sanitary ordinances. Citing Kramer v. Union Free School Dist., 395 U. S. 621 (1969), and cases following in its wake, appellants argue that the section creates a classification infringing on their right to participate in municipal elections. The State's denial of the franchise to police jurisdiction residents, appellants urge, can stand only if justified by a compelling state interest.At issue in Kramer was a New York voter qualification statute that limited the vote in school district elections to otherwise qualified district residents who (1) either owned or leased taxable real property located within the district, (2) were married to persons owning or leasing qualifying property, or (3)were parents or guardians of children enrolled in a local district school for a specified time during the preceding year. Without deciding whether or not a State may in some circumstances limit the franchise to residents primarily interested in or primarily affected by the activities of a Page 439 U. S. 67 given governmental unit, the Court held that the statute was not sufficiently tailored to meet that state interest, since its classifications excluded many bona fide residents of the school district who had distinct and direct interests in school board decisions, and included many residents whose interests in school affairs were, at best, remote and indirect.On the same day, in Cipriano v. City of Houma, 395 U. S. 701 (1969), the Court upheld an equal protection challenge to a Louisiana law providing that only "property taxpayers" could vote in elections called to approve the issuance of revenue bonds by a municipal utility system. Operation of the utility system affected virtually every resident of the city, not just property owners, and the bonds were in no way financed by property tax revenue. Thus, since the benefits and burdens of the bond issue fell indiscriminately on property owner and nonproperty owner alike, the challenged classification impermissibly excluded otherwise qualified residents who were substantially affected by and directly interested in the matter put to a referendum. The rationale of Cipriano was subsequently called upon to invalidate an Arizona law restricting the franchise to property taxpayers in elections to approve the issuance of general obligation municipal bonds. Phoenix v. Kolodziejski, 399 U. S. 204 (1970).Appellants also place heavy reliance on Evans v. Cornman, 398 U. S. 419 (1970). In Evans, the Permanent Board of Registry of Montgomery County, Md. ruled that persons living on the grounds of the National Institutes of Health (NIH), a federal enclave located within the geographical boundaries of the State, did not meet the residency requirement of the Maryland Constitution. Accordingly, NIH residents were denied the right to vote in Maryland elections. This Court rejected the notion that persons living on NIH grounds were not residents of Maryland:"Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state Page 439 U. S. 68 residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that 'fiction of a state within a state' was specifically rejected by this Court in Howard v. Commissioners of Louisville, 344 U. S. 624, 344 U. S. 627 (1953), and it cannot be resurrected here to deny appellees the right to vote."Id. at 398 U. S. 421-422. Thus, because inhabitants of the NIH enclave were residents of Maryland and were"just as interested in and connected with electoral decisions as the were prior to 1953, when the area came under federal jurisdiction, and as their neighbors who live off the enclave,"id. at 398 U. S. 426, the State could not deny them the equal right to vote in Maryland elections.From these and our other voting qualifications cases, a common characteristic emerges: the challenged statute in each case denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned. See, e.g., Hill v. Stone, 421 U. S. 289 (1975) (invalidating provision of the Texas Constitution restricting franchise on general obligation bond issue to residents who had "rendered" or listed real, mixed, or personal property for taxation in the election district); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966) (invalidating Virginia statute conditioning the right to vote of otherwise qualified residents on payment of a poll tax); cf. Turner v. Fouche, 396 U. S. 346 (1970) (invalidating Georgia statute restricting county school board membership to residents owning real property in the county). No decision of this Court has extended the "one man, one vote" principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivisions. On the contrary, our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its Page 439 U. S. 69 borders. See, e.g., Dunn v. Blumstein, 405 U. S. 330, 405 U. S. 343-344 (1972); Evans v. Cornman, supra at 398 U. S. 422; Kramer v. Union Free School Dist., 395 U.S. at 395 U. S. 625; Carrington v. Rash, 380 U. S. 89, 380 U. S. 91 (1965); Pope v. Williams, 193 U. S. 621 (1904). Bona fide residence alone, however, does not automatically confer the right to vote on all matters, for at least in the context of special interest elections the State may constitutionally disfranchise residents who lack the required special interest in the subject matter of the election. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U. S. 719 (1973); Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U. S. 743 (1973).Appellants' argument that extraterritorial extension of municipal powers requires concomitant extraterritorial extension of the franchise proves too much. The imaginary line defining a city's corporate limits cannot corral the influence of municipal actions. A city's decisions inescapably affect individuals living immediately outside its borders. The granting of building permits for high rise apartments, industrial plants, and the like on the city's fringe unavoidably contributes to problems of traffic congestion, school districting, and law enforcement immediately outside the city. A rate change in the city's sales or ad valorem tax could well have a significant impact on retailers and property values in areas bordering the city. The condemnation of real property on the city's edge for construction of a municipal garbage dump or waste treatment plant would have obvious implications for neighboring nonresidents. Indeed, the indirect extraterritorial effects of many purely internal municipal actions could conceivably have a heavier impact on surrounding environs than the direct regulation contemplated by Alabama's police jurisdiction statutes. Yet no one would suggest that nonresidents likely to be affected by this sort of municipal action have a constitutional right to participate in the political processes bringing it about. And unless one adopts the idea that the Page 439 U. S. 70 Austinian notion of sovereignty, which is presumably embodied to some extent in the authority of a city over a police jurisdiction, distinguishes the direct effects of limited municipal powers over police jurisdiction residents from the indirect though equally dramatic extraterritorial effects of purely internal municipal actions, it makes little sense to say that one requires extension of the franchise, while the other does not.Given this country's tradition of popular sovereignty, appellants' claimed right to vote in Tuscaloosa elections is not without some logical appeal. We are mindful, however, of Mr. Justice Holmes' observation in Hudson Water Co. v. McCarter, 209 U. S. 349, 209 U. S. 355 (1908):"All rights tend to declare themselves absolute to their logical extreme. Yet all, in fact, are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. . . . The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side."The line heretofore marked by this Court's voting qualifications decisions coincides with the geographical boundary of the governmental unit at issue, and we hold that appellants' case, like their homes falls on the farther side.BThus stripped of its voting rights attire, the equal protection issue presented by appellants becomes whether the Alabama statutes giving extraterritorial force to certain municipal ordinances and powers bear some rational relationship to a legitimate state purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 (1973)."The Fourteenth Amendment does not prohibit legislation merely because Page 439 U. S. 71 it is special, or limited in its application to a particular geographical or political subdivision of the state."Fort Smith Light Co. v. Paving Dist., 274 U. S. 387, 274 U. S. 391 (1927). Rather, the Equal Protection Clause is offended only if the statute's classification "rests on grounds wholly irrelevant to the achievement of the State's objective." McGowan v. Maryland, 366 U. S. 420, 366 U. S. 425 (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552, 330 U. S. 556 (1947).Government, observed Mr. Justice Johnson, "is the science of experiment," Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 226 (1821), and a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power. This Court has often recognized that political subdivisions such as cities and counties are created by the State "as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them." Hunter v. Pittsburgh, 207 U. S. 161, 207 U. S. 178 (1907). See also e.g., Sailors v. Board of Education, 387 U.S. at 387 U. S. 108; Reynolds v. Sims, 377 U. S. 533, 377 U.S. 575 (1964). In Hunter v. Pittsburgh, the Court discussed at length the relationship between a State and its political subdivisions, remarking:"The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the State."207 U.S. at 207 U. S. 178. While the broad statements as to state control over municipal corporations contained in Hunter have undoubtedly been qualified by the holdings of later cases such as Kramer v. Union Free School Dist., supra, we think that the case continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them. [Footnote 7] Page 439 U. S. 72The extraterritorial exercise of municipal powers is a governmental technique neither recent in origin nor unique to the State of Alabama. See R. Maddox, Extraterritorial Powers of Municipalities in the United States (1955). In this country, 35 States authorize their municipal subdivisions to exercise governmental powers beyond their corporate limits. Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U.Chi.L.Rev. 151 (1977). Although the extraterritorial municipal powers granted by these States vary widely, several States grant their cities more extensive or intrusive powers over bordering areas than those granted under the Alabama statutes. [Footnote 8] Page 439 U. S. 73In support of heir equal protection claim, appellants suggest a number of "constitutionally preferable" governmental alternatives to Alabama' system of municipal police jurisdictions. For example, exclusive management of the police jurisdiction by county officials, appellants maintain, would be more "practical." From a political science standpoint, appellants' suggestions may be sound, but this Court does not sit to determine whether Alabama has chosen the soundest or Page 439 U. S. 74 most practical form of internal government possible. Authority to make those judgments resides in the state legislature, and Alabama citizens are free to urge their proposals to that body. See, e.g., Hunter v. Pittsburgh, 207 U.S. at 207 U. S. 179. Our inquiry is limited to the question whether "any state of facts reasonably may be conceived to justify" Alabama's system of police jurisdictions, Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. at 410 U. S. 732, and, in this case, it takes but momentary reflection to arrive at an affirmative answer.The Alabama Legislature could have decided that municipal corporations should have some measure of control over activities carried on just beyond their "city limit" signs, particularly since today's police jurisdiction may be tomorrow's annexation to the city proper. Nor need the city's interests have been the only concern of the legislature when it enacted the police jurisdiction statutes. Urbanization of any area brings with it a number of individuals who long both for the quiet of suburban or country living and for the career opportunities offered by the city's working environment. Unincorporated communities like Holt dot the rim of most major population centers in Alabama and elsewhere, and state legislatures have a legitimate interest in seeing that this substantial segment of the population does not go without basic municipal services such as police, fire, and health protection. Established cities are experienced in the delivery of such services, and the incremental cost of extending the city's responsibility in these areas to surrounding environs may be substantially less than the expense of establishing wholly new service organizations in each community.Nor was it unreasonable for the Alabama Legislature to require police jurisdiction residents to contribute through license fees to the expense of services provided them by the city. The statutory limitation on license fees to half the amount exacted within the city assures that police jurisdiction residents will not be victimized by the city government. Page 439 U. S. 75"Viable local governments may need many innovations, numerous combination of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions."Sailors v. Board of Education, 387 U.S. at 387 U. S. 110-111. This observation in Sailors was doubtless as true at the turn of this century, when urban areas throughout the country were temporally closer to the effects of the industrial revolution. Alabama's police jurisdiction statute, enacted in 1907, was a rational legislative response to the problems faced by the State's burgeoning cities. Alabama is apparently content with the results of its experiment, and nothing in the Equal Protection Clause of the Fourteenth Amendment requires that it try something new.CAppellants also argue that "governance without the franchise is a fundamental violation of the due process clause." Brief for Appellants 28. Support for this proposition is alleged to come from United States v. Texas, 252 F. Supp. 234 (WD Tex.) (three-judge District Court), summarily aff'd, 384 U. S. 155 (1966), which held that conditioning the franchise of otherwise qualified voters on payment of a poll tax denied due process to many Texas voters. Appellants' argument proceeds from the assumption, earlier shown to be erroneous, supra at 439 U. S. 66-70, that they have a right to vote in Tuscaloosa elections. Their conclusion falls with their premise.IIIIn sum, we conclude that Alabama's police jurisdiction statutes violate neither the Equal Protection Clause nor the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court isAffirmed

U.S. Supreme CourtHolt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978)Holt Civic Club v. City of TuscaloosaNo. 77-515Argued October 11, 1978Decided November 28, 1978439 U.S. 60SyllabusAppellants, a civic association and certain individual residents of Holt, Ala., a small unincorporated community outside the corporate limits of Tuscaloosa but within three miles thereof, brought this statewide class action challenging the constitutionality of "police jurisdiction" statutes that extend municipal police, sanitary, and business licensing powers over those residing within three miles of certain corporate boundaries without permitting such residents to vote in municipal elections. A three-judge District Court granted appellees' motion to dismiss the complaint for failure to state a claim upon which relief could be granted.Held:1. The convening of a three-judge court under then-applicable 28 U.S.C. § 2281 (1970 ed.) was proper, since appellants challenged the constitutionality of state statutes that created a statewide system under which Alabama cities exercise extraterritorial powers. Moody v. Flowers, 387 U. S. 97, distinguished. Pp. 439 U. S. 63-65.2. Alabama's police jurisdiction statutes do not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 439 U. S. 66-75.(a) A government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. Various voting qualification decisions on which appellants rely in support of their contention that the denial of the franchise to them can stand only if justified by a compelling state interest are inapposite. In those cases, unlike the situation here, the challenged statutes disfranchised individuals who physically resided within the geographical boundaries of the governmental entity concerned. Pp. 439 U. S. 66-70.(b) Alabama's police jurisdiction statutory scheme is a rational legislative response to the problems faced by the State's burgeoning cities, and the legislature has a legitimate interest in ensuring that residents of areas adjoining city borders be provided such basic municipal services as police, fire, and health protection. Nor is it unreasonable for the legislature to require police jurisdiction residents to contribute through license fees, as they do here on a reduced scale, to the expense of such services. Pp. 439 U. S. 70-75. Page 439 U. S. 613. The challenged statutes do not violate due process, since appellants have no constitutional right to vote in Tuscaloosa elections. P. 439 U. S. 75.Affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 439 U. S. 75. BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 439 U. S. 79.

1980_79-1236

JUSTICE BRENNAN delivered the opinion of the Court.The question presented in this Title VII class action is whether an interlocutory order of the District Court denying a joint motion of the parties to enter a consent decree containing injunctive relief is an appealable order.IPetitioners, representing a class of present and former black seasonal employees and applicants for employment at the Page 450 U. S. 81 Richmond Leaf Department of the American Tobacco Co., brought this suit in the United States District Court for the Eastern District of Virginia under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Alleging that respondents [Footnote 1] had discriminated against them in hiring, promotion, transfer, and training opportunities, petitioners sought a declaratory judgment, preliminary and permanent injunctive relief, and money damages.After extensive discovery had been conducted and the plaintiff class had been certified, [Footnote 2] the parties negotiated a settlement and jointly moved the District Court to approve and enter their proposed consent decree. See Fed.Rule Civ.Proc. 23(e). [Footnote 3] The decree would have required respondents to give hiring and seniority preferences to black employees and to fill one-third of all supervisory positions in the Richmond Leaf Department with qualified blacks. While agreeing to the terms of the decree, respondents "expressly den[ied] any violation of . . . any . . . equal employment law, regulation, or order." App. 25a.The District Court denied the motion to enter the proposed decree. 446 F. Supp. 780 (1977). Concluding that preferential treatment on the basis of race violated Title VII and Page 450 U. S. 82 the Constitution absent a showing of past or present discrimination, and that the facts submitted in support of the decree demonstrated no "vestiges of racial discrimination," id. at 790, the court held that the proposed decree illegally granted racial preferences to the petitioner class. It further declared that, even if present or past discrimination had been shown, the decree would be illegal in that it would extend relief to all present and future black employees of the Richmond Leaf Department, not just to actual victims of the alleged discrimination. Id. at 789.The United States Court of Appeals for the Fourth Circuit, sitting en banc, dismissed petitioners' appeal for want of jurisdiction. 606 F.2d 420 (1979). It held that the District Court's refusal to enter the consent decree was neither a "collateral order" under 28 U.S.C. § 1291, [Footnote 4] nor an interlocutory order "refusing" an "injunctio[n]" under 28 U.S.C. § 1292(a)(1). [Footnote 5] Three judges dissented, concluding that the order refusing to approve the consent decree was appealable under 28 U.S.C. § 1292(a)(1).Noting a conflict in the Circuits, [Footnote 6] we granted certiorari. Page 450 U. S. 83 447 U.S. 920 (1980). We hold that the order is appealable under 28 U.S.C. § 1292(a)(1), and accordingly reverse the Court of Appeals. [Footnote 7]IIThe first Judiciary Act of 1789 1 Stat. 73, established the general principle that only final decisions of the federal district courts would be reviewable on appeal. 28 U.S.C. § 1291. See Baltimore Contractors, Inc. v Bodinger, 348 U. S. 176, 348 U. S. 178-179 (1955); Cobbledick v. United States, 309 U. S. 323, 309 U. S. 324-325 (1940). Because rigid application of this principle was found to create undue hardship in some cases, however, Congress created certain exceptions to it. See Baltimore Contractors, Inc. v. Bodinger, supra at 348 U. S. 180-181. One of these exceptions, 28 U.S.C. § 1292(a)(1), permits appeal as of right from "[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions. . . ." (Emphasis added.) [Footnote 8]Although the District Court's order declining to enter the proposed consent decree did not in terms "refus[e]" an "injunctio[n]," it nonetheless had the practical effect of doing so. Cf. General Electric Co. v. Marvel Rare Metals Co., 287 U. S. 430, 287 U. S. 433 (1932). This is because the proposed decree Page 450 U. S. 84 would have permanently enjoined respondents from discriminating against black employees at the Richmond Leaf Department, and would have directed changes in seniority and benefit systems, established hiring goals for qualified blacks in certain supervisory positions, and granted job-bidding preferences for seasonal employees. Indeed, prospective relief was at the very core of the disapproved settlement. [Footnote 9]For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of "permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Baltimore Contractors, Inc. v. Bodinger, supra at 348 U. S. 181. Unless a litigant can show that an interlocutory order of the district court might have a "serious, perhaps irreparable, consequence," and that the order can be "effectually challenged" only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.In Switzerland Cheese Assn., Inc. v. E. Horne's Market, Inc., 385 U. S. 23 (1966), for example, petitioners contended that the District Court's denial of their motion for summary judgment was appealable under § 1292(a)(1) simply because Page 450 U. S. 85 its practical effect was to deny them the permanent injunction sought in their summary judgment motion. Although the District Court order seemed to fit within the statutory language of § 1292(a)(1), petitioners' contention was rejected because they did not show that the order might cause them irreparable consequences if not immediately reviewed. The motion for summary judgment sought permanent, and not preliminary, injunctive relief, and petitioners did not argue that a denial of summary judgment would cause them irreparable harm pendente lite. Since permanent injunctive relief might have been obtained after trial, [Footnote 10] the interlocutory order lacked the "serious, perhaps irreparable, consequence" that is a prerequisite to appealability under § 1292(a)(1).Similarly, in Gardner v. Westinghouse Broadcasting Co., 437 U. S. 478 (1978), petitioner in a Title VII sex discrimination suit sought a permanent injunction against her prospective employer on behalf of herself and her putative class. After the District Court denied petitioner's motion for class certification, petitioner filed an appeal under § 1292(a)(1). She contended that, since her complaint had requested injunctive relief, the court's order denying class certification had the effect of limiting the breadth of the available relief, and therefore of "refus[ing] a substantial portion of the injunctive relief requested in the complaint." 437 U.S. at 437 U. S. 480.As in Switzerland Cheese, petitioner in Gardner had not filed a motion for a preliminary injunction, and had not alleged that a denial of her motion would cause irreparable harm. The District Court order thus had "no direct or irreparable impact on the merits of the controversy." 437 U.S. at 437 U. S. 482. Page 450 U. S. 86 Because. the denial of class certification was conditional, Fed.Rule Civ.Proc. 23(c)(1), and because it could be effectively reviewed on appeal from final judgment, petitioner could still obtain the full permanent injunctive relief she requested, and a delayed review of the District Court order would therefore cause no serious or irreparable harm. As Gardner stated:"The order denying class certification in this case did not have any such 'irreparable' effect. It could be reviewed both prior to and after final judgment; it did not affect the merits of petitioner's own claim; and it did not pass on the legal sufficiency of any claims for injunctive relief."437 U.S. at 437 U. S. 480-481 (footnotes omitted). [Footnote 11]IIIIn the instant case, unless the District Court order denying the motion to enter the consent decree is immediately appealable, petitioners will lose their opportunity to "effectually challenge" an interlocutory order that denies them injunctive relief and that plainly has a "serious, perhaps irreparable, consequence." First, petitioners might lose their opportunity to settle their case on the negotiated terms. As United States v. Armour & Co., 402 U. S. 673, 402 U. S. 681 (1971), stated:"Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and, thus save themselves Page 450 U. S. 87 the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation."Settlement agreements may thus be predicated on an express or implied condition that the parties would, by their agreement, be able to avoid the costs and uncertainties of litigation. In this case, that condition of settlement has been radically affected by the District Court. By refusing to enter the proposed consent decree, the District Court effectively ordered the parties to proceed to trial and to have their respective rights and liabilities established within limits laid down by that court. [Footnote 12] Because a party to a pending settlement might be legally justified in withdrawing its consent to the agreement once trial is held and final judgment entered, [Footnote 13] Page 450 U. S. 88 the District Court's order might thus have the "serious, perhaps irreparable, consequence" of denying the parties their right to compromise their dispute on mutually agreeable terms. [Footnote 14]There is a second "serious, perhaps irreparable, consequence" of the District Court order that justifies our conclusion that the order is immediately appealable under § 1292(a)(1). Page 450 U. S. 89 In seeking entry of the proposed consent decree, petitioners sought an immediate restructuring of respondents' transfer and promotional policies. They asserted in their complaint that they would suffer irreparable injury unless they obtained that injunctive relief at the earliest opportunity. [Footnote 15] Because petitioners cannot obtain that relief until the proposed consent decree is entered, any further delay in reviewing the propriety of the District Court's refusal to enter the decree might cause them serious or irreparable harm. [Footnote 16]In sum, in refusing to approve the parties' negotiated consent decree, the District Court denied petitioners the opportunity to compromise their claim and to obtain the injunctive benefits of the settlement agreement they negotiated. Page 450 U. S. 90 These constitute "serious, perhaps irreparable, consequences" that petitioners can "effectually challenge" only by an immediate appeal. It follows that the order is an order "refusing" an "injunctio[n]," and is therefore appealable under § 1292(a)(1).Reversed

U.S. Supreme CourtCarson v. American Brands, Inc., 450 U.S. 79 (1981)Carson v. American Brands, Inc.No. 79-1236Argued December 10, 1980Decided February 25, 1981450 U.S. 79SyllabusPetitioners, representing a class of present and former black employees and job applicants, sought injunctive and declaratory relief and damages in an action under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, alleging that respondent employer and unions had engaged in racially discriminatory employment practices. The parties negotiated a settlement and jointly moved the District Court to enter a proposed consent decree which would permanently enjoin respondents from discriminating against black employees and would require them to give hiring and seniority preferences to black employees and to fill one-third of certain supervisory positions with qualified blacks. The court denied the motion, holding that, since there was no showing of present or past discrimination, the proposed decree illegally granted racial preferences to the petitioner class, and that, in any event, the decree would be illegal as extending relief to all present and future black employees, not just to actual victims of the alleged discrimination. The Court of Appeals dismissed petitioners' appeal for want of jurisdiction, holding that the District Court's order was not appealable under 28 U.S.C. § 1292(a)(1), which permits appeals as of right to the courts of appeals from interlocutory orders of district courts "refusing . . . injunctions."Held: The District Court's interlocutory order refusing to enter the consent decree was an order "refusing" an "injunction" and was therefore appealable under § 1292(a)(1). Pp. 450 U. S. 83-90.(a) The order, although not in terms refusing an injunction, had the practical effect of doing so. However, for such an interlocutory order to be immediately appealable under § 1292(a)(1), a litigant must also show that the order might have "serious, perhaps irreparable, consequences," and that the order can be "effectually challenged" only by immediate appeal. Baltimore Contractors, Inc. v. Bodiner, 348 U. S. 176, 348 U. S. 181. Pp. 83-86.(b) Here, petitioners meet such test. First, they might lose their opportunity to settle their case on the negotiated terms, because a party to a pending settlement might be legally justified in withdrawing its consent to the agreement once trial is held and final judgment entered. Page 450 U. S. 80 And a second "serious, perhaps irreparable, consequence" of the District Court's order justifying an immediate appeal is that, because petitioners cannot obtain the injunctive relief of an immediate restructuring of respondents' transfer and promotional policies until the proposed consent decree is entered, any further delay in reviewing the propriety of the District Court's refusal to enter the decree might cause them serious or irreparable harm. Pp. 450 U. S. 86-89.606 F.2d 420, reversed. BRENNAN, J., delivered the opinion for a unanimous Court.

1981_81-460

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to determine whether a federal court should abstain from considering a challenge to the constitutionality of disciplinary rules that are the subject of pending state disciplinary proceedings within the jurisdiction of the New Jersey Supreme Court. 454 U.S. 962 (1981). The Court of Appeals held that it need not abstain under Younger v. Harris, 401 U. S. 37 (1971). We reverse.IAThe Constitution of New Jersey charges the State Supreme Court with the responsibility for licensing and disciplining attorneys admitted to practice in the State. Art. 6, § 2, 3. [Footnote 1] Under the rules established by the New Jersey Supreme Court, promulgated pursuant to its constitutional authority, a complaint moves through a three-tier procedure. First, local District Ethics Committees appointed by the Page 457 U. S. 426 State Supreme Court are authorized to receive complaints relating to claimed unethical conduct by an attorney. New Jersey Court Rule 1:20-2(d). At least two of the minimum of eight members of the District Ethics Committee must be nonattorneys. Complaints are assigned to an attorney member of the Committee to report and make a recommendation. Rule 1:20-2(h). The decision whether to proceed with the complaint is made by the person who chairs the Ethics Committee. If a complaint is issued by the Ethics Committee, it must state the name of the complainant, describe the claimed improper conduct, cite the relevant rules, and state, if known, whether the same or a similar complaint has been considered by any other Ethics Committee. The attorney whose conduct is challenged is served with the complaint and has 10 days to answer. [Footnote 2]Unless good cause appears for referring the complaint to another Committee member, each complaint is referred to the member of the Committee who conducted the initial investigation for review and further investigation, if necessary. The Committee member submits a written report stating whether a prima facie indication of unethical or unprofessional conduct has been demonstrated. The report is then evaluated by the chairman of the Ethics Committee to determine whether a prima facie case exists. Absent a prima facie showing, the complaint is summarily dismissed. If a prima facie case is found, a formal hearing on the complaint is held before three or more members of the Ethics Committee, Page 457 U. S. 427 a majority of whom must be attorneys. The lawyer who is charged with unethical conduct may have counsel, discovery i available, and all witnesses are sworn. The panel is required to prepare a written report with its findings of fact and conclusions. The full Committee, following the decision of the panel, has three alternatives. The Committee may dismiss the complaint, prepare a private letter of reprimand, or prepare a presentment to be forwarded to the Disciplinary Review Board. Rule 1:20-2(o). [Footnote 3]The Disciplinary Review Board, a statewide board which is also appointed by the Supreme Court, consists of nine members, at least five of whom must be attorneys and at least three of whom must be nonattorneys. The Board makes a de novo review. Rule 1:20-3(d)(3). [Footnote 4] The Board is required to make formal findings and recommendations to the New Jersey Supreme Court.All decisions of the Disciplinary Review Board beyond a private reprimand are reviewed by the New Jersey Supreme Court. Briefing and oral argument are available in the Supreme court for cases involving disbarment or suspension for more than one year. Rule 1:20-4.BRespondent Lennox Hinds, a member of the New Jersey Bar, served as executive director of the national Conference of Black Lawyers at the time of his challenged conduct. Hinds represented Joanne Chesimard in a civil proceeding challenging her conditions of confinement in jail. In 1977, Page 457 U. S. 428 Chesimard went to trial in state court for the murder of a policeman. Respondent Hinds was not a counsel of record for Chesimard in the murder case. However, at the outset of the criminal trial, Hinds took part in a press conference, making statements critical of the trial and of the trial judge's judicial temperament and racial insensitivity. In particular, Hinds referred to the criminal trial as "a travesty," a "legalized lynching," and "a kangaroo court."One member of the Middlesex County Ethics Committee read news accounts of Hinds' comments and brought the matter to the attention of the Committee. In February, 1977, the Committee directed one of its members to conduct an investigation. A letter was written to Hinds, who released the contents of the letter to the press. The Ethics Committee on its own motion then suspended the investigation until the conclusion of the Chesimard criminal trial.After the trial was completed, the Committee investigated the complaint and concluded that there was probable cause to believe that Hinds had violated DR 1-102(A)(5) of the Disciplinary Rules of the Code of Professional Responsibility. [Footnote 5] That section provides that "[a] lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration of justice." Respondent Hinds also was charged with violating DR 7-107(D), which prohibits extrajudicial statements by lawyers associated with the prosecution or defense of a criminal matter. [Footnote 6] The Committee then served a formal statement of charges on Hinds. Page 457 U. S. 429Instead of filing an answer to the charges in accordance with the New Jersey Bar disciplinary procedures, Hinds and the three respondent organizations filed suit in the United States District Court for the District of New Jersey contending that the disciplinary rules violated respondents' First Amendment rights. In addition, respondents charged that the disciplinary rules were facially vague and overbroad. The District Court granted petitioner's motion to dismiss based on Younger v. Harris, 401 U. S. 37 (1971), concluding that"[t]he principles of comity and federalism dictate that the federal court abstain so that the state is afforded the opportunity to interpret its rules in the face of a constitutional challenge."App. to Pet. for Cert. 53a-54a. At respondents' request, the District Court reopened the case to allow respondents an opportunity to establish bad faith, harassment, or other extraordinary circumstance which would constitute an exception to Younger abstention. Dombrowski v. Pfister, 380 U. S. 479 (1965). After two days of hearings, the District Court found no evidence to justify an exception to the Younger abstention doctrine, and dismissed the federal court complaint.A divided panel of the United States Court of Appeals for the Third Circuit reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. 643 F.2d 119 (1981). The court reasoned that the disciplinary proceedings in this case are unlike the state judicial proceedings to which the federal courts usually defer. The Court of Appeals majority viewed the proceedings in this case as administrative, "nonadjudicative" proceedings analogous to the preindictment stage of a criminal proceeding. [Footnote 7] Page 457 U. S. 430On petition for rehearing, petitioner attached an affidavit from the Clerk of the New Jersey Supreme Court which stated that the New Jersey Supreme Court would directly consider Hinds' constitutional challenges and that the court would consider whether such a procedure should be made explicit in the Supreme Court rules. On reconsideration, a divided panel of the Third Circuit declined to alter its original decision, stating that the relevant facts concerning abstention are those that existed at the time of the District Court's decision. 651 F.2d 154 (1981). [Footnote 8]Pending review in this Court, the New Jersey Supreme Court has heard oral arguments on the constitutional challenges presented by respondent Hinds, and has adopted a rule allowing for an aggrieved party in a disciplinary hearing to Page 457 U. S. 431 seek interlocutory review of a constitutional challenge to the proceedings. [Footnote 9]IIAYounger v. Harris, supra, and its progeny espouse a strong federal policy against federal court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of "comity" includes"a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways."Id. at 401 U. S. 44. [Footnote 10] Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights. Page 457 U. S. 432The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Moore v. Sims, 442 U. S. 415, 442 U. S. 423 (1979); Huffman v. Pursue, Ltd., 420 U. S. 592, 420 U. S. 604-605 (1975). The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman, supra. Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state's substantial interest in the litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977). Where vital state interests are involved, a federal court should abstain "unless state law clearly bars the interposition of the constitutional claims." Moore, 442 U.S. at 442 U. S. 426. "[T]he . . . pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims. . . ." Id. at 442 U. S. 430. See also Gibson v. Berryhill, 411 U. S. 564 (1973).The question in this case is threefold: first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.BThe State of New Jersey, in common with most States, [Footnote 11] recognizes the important state obligation to regulate persons Page 457 U. S. 433 who are authorized to practice law. New Jersey expresses this in a state constitutional provision vesting in the New Jersey Supreme Court the authority to fix standards, regulate admission to the bar, and enforce professional discipline among members of the bar. N.J.Const., Art. 6, § 2, 113. The Supreme Court of New Jersey has recognized that the local District Ethics Committees act as the arm of the court in performing the function of receiving and investigating complaints and holding hearings. Rule 1:20-2; In re Logan, 70 N.J. 222, 358 A.2d 787 (1976). The New Jersey Supreme Court has made clear that filing a complaint with the local Ethics and Grievance Committee "is in effect a filing with the Supreme Court. . . ." Toft v. Ketchum, 18 N.J. 280, 284, 113 A.2d 671, 674, cert. denied, 350 U.S. 887 (1955). "From the very beginning, a disciplinary proceeding is judicial in nature, initiated by filing a complaint with an ethics and grievance committee." [Footnote 12] 18 N.J. at 284, 113 A.2d at 674. It is clear beyond doubt that the New Jersey Supreme Court considers its bar disciplinary proceedings as "judicial in nature." [Footnote 13] Page 457 U. S. 434 As such, the proceedings are of a character to warrant federal court deference. The remaining inquiries are whether important state interests are implicated so as to warrant federal court abstention, and whether the federal plaintiff has an adequate opportunity to present the federal challenge.CThe State of New Jersey has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. States traditionally have exercised extensive control over the professional conduct of attorneys. See n 11, supra. The ultimate objective of such control is "the protection of the public, the purification of the bar and the prevention of a reoccurrence." In re Baron, 25 N.J. 445, 449, 136 A.2d 873, 875 (1957). The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys, and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice. See In re Stein, 1 N.J. 228, 237, 62 A.2d 801, 805 (1949), quoting In re Cahill, 66 N.J.L. 527, 50 A. 119 (1901). The State's interest in the professional conduct of attorneys involved in the administration of criminal justice is of special importance. Finally, the State's interest in the present litigation is demonstrated by the fact that the Middlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present Page 457 U. S. 435 suit and was the body which initiated the state proceedings against respondent Hinds.The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. So long as the constitutional claims of respondents can be determined in the state proceedings, and so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain.DRespondent Hinds contends that there was no opportunity in the state disciplinary proceedings to raise his federal constitutional challenge to the disciplinary rules. Yet Hinds failed to respond to the complaint filed by the local Ethics Committee, and failed even to attempt to raise any federal constitutional challenge in the state proceedings. Under New Jersey's procedure, its Ethics Committees constantly are called upon to interpret the state disciplinary rules. Respondent Hinds points to nothing existing at the time the complaint was brought by the local Committee to indicate that the members of the Ethics Committee, the majority of whom are lawyers, would have refused to consider a claim that the rules which they were enforcing violated federal constitutional guarantees. Abstention is based upon the theory that"'[t]he accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.'"Younger v. Harris, 401 U.S. at 401 U. S. 45, quoting Fenner v. Boykin, 271 U. S. 240, 271 U. S. 244 (1926).In light of the unique relationship between the New Jersey Supreme Court and the local Ethics Committee, and in view of the nature of the proceedings, it is difficult to conclude that there was no "adequate opportunity" for respondent Hinds Page 457 U. S. 436 to raise his constitutional claims. [Footnote 14] Moore, 442 U.S. at 442 U. S. 430. Whatever doubt, if any, that may have existed about respondent Hinds' ability to have constitutional challenges heard in the bar disciplinary hearings was laid to rest by the subsequent actions of the New Jersey Supreme Court. Prior to the filing of the petition for certiorari in this Court, the New Jersey Supreme Court sua sponte entertained the constitutional issues raised by respondent Hinds. Respondent Hinds therefore has had abundant opportunity to present his constitutional challenges in the state disciplinary proceedings. [Footnote 15]There is no reason for the federal courts to ignore this subsequent development. In Hicks v. Miranda, 422 U. S. 332 (1975), we held that"where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have taken place in federal court, the principles of Younger v. Harris should apply in full force."Id. at 422 U. S. 349. An analogous situation is presented here; the principles of comity and federalism which call for abstention remain in full Page 457 U. S. 437 force. Thus far, in the federal court litigation, the sole issue has been whether abstention is appropriate. No proceedings have occurred on the merits, and therefore no federal proceedings on the merits will be terminated by application of Younger principles. It would trivialize the principles of comity and federalism if federal courts failed to take into account that an adequate state forum for all relevant issues has clearly been demonstrated to be available prior to any proceedings on the merits in federal court. 422 U.S. at 422 U. S. 350. [Footnote 16]Respondents have not challenged the findings of the District Court that there was no bad faith or harassment on the part of petitioner and that the state rules were not "flagrantly and patently'" unconstitutional. Younger, supra, at 401 U. S. 53, quoting Watson v. Buck, 313 U. S. 387, 313 U. S. 402 (1941). See App. to Pet. for Cert. 50a-52a. We see no reason to disturb these findings, and no other extraordinary circumstances have been presented to indicate that abstention would not be appropriate. [Footnote 17]IIIBecause respondent Hinds had an "opportunity to raise and have timely decided by a competent state tribunal the federal issues involved," Gibson v. Berryhill, 411 U.S. at 411 U. S. 577, and because no bad faith, harassment, or other exceptional circumstances dictate to the contrary, federal courts should abstain from interfering with the ongoing proceedings. Accordingly, the judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtMiddlesex County Ethics Comm. v. Bar Assn., 457 U.S. 423 (1982)Middlesex County Ethics Committee v. Garden State Bar AssociationNo. 81-460Argued March 31, 1982Decided June 21, 1982457 U.S. 423SyllabusUnder rules promulgated by the New Jersey Supreme Court pursuant to its authority under the State Constitution to license and discipline attorneys admitted to practice in the State, a claim of unethical conduct by an attorney is first considered by a local District Ethics Committee appointed by the Supreme Court. If a complaint is issued, the attorney whose conduct is challenged is served with the complaint and has 10 days to answer. Upon a determination that a prima facie case of unethical conduct exists, a formal hearing is held. The attorney charged may have counsel, discovery is available, and all witnesses are sworn. The Committee may ultimately dismiss the complaint, issue a private letter of reprimand, or forward a presentment to the statewide Disciplinary Review Board, which is also appointed by the Supreme Court. After a de novo review, the Board is required to make formal findings and recommendations to the Supreme Court, which reviews all decisions beyond a private reprimand and which permits briefing and oral argument for cases involving disbarment or suspension for more than one year. Respondent Hinds, a member of the New Jersey Bar, was served by petitioner, a local Ethics Committee, with a formal statement of charges of violating certain Supreme Court disciplinary rules. Instead of filing an answer to the charges, Hinds and the three respondent organizations of lawyers filed suit in Federal District Court, contending that the disciplinary rules violated their rights under the Federal Constitution. The court dismissed the complaint on the basis of the abstention principles of Younger v. Harris, 401 U. S. 37. The Court of Appeals reversed on the ground that the disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims, notwithstanding an affidavit stating that the New Jersey Supreme Court would directly consider Hinds' constitutional challenges and would consider whether such a procedure should be made explicit in the Supreme Court rules.Held: The federal courts should abstain from interfering with the ongoing disciplinary proceedings within the jurisdiction of the New Jersey Supreme Court. Pp. 457 U. S. 431-437.(a) The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Page 457 U. S. 424 Where such interests are involved, a federal court should abstain unless state law clearly bars the interposition of the constitutional claims. The pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims. Pp. 457 U. S. 431-432.(b) The New Jersey Supreme Court considers its disciplinary proceedings, beginning with the filing of a complaint with the local Ethics Committee, as "judicial in nature." As such, the proceedings are of a character to warrant federal court deference. Pp. 457 U. S. 432-434.(c) The State has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses. The State's interest in the present litigation is demonstrated by the fact that petitioner, an agency of the New Jersey Supreme Court, is the named defendant in the present suit and was the body which initiated the state proceedings against Hinds. The importance of the state interest in the pending state judicial proceedings and in the federal case calls Younger abstention into play. Pp. 457 U. S. 434-435.(d) In light of the unique relationship between the New Jersey Supreme Court and the local Ethics Committee, and in view of the nature of the proceedings, it cannot be concluded that there was no "adequate opportunity" for Hinds to raise his constitutional claims. Any doubt as to this matter was laid to rest by the New Jersey Supreme Court's subsequent actions when, prior to the filing of the petition for certiorari in this Court, it sua sponte entertained the constitutional issues raised by Hinds. And there is no reason to disturb the District Court's unchallenged findings that there was no bad faith or harassment on petitioner's part and that the state disciplinary rules were not "flagrantly and patently" unconstitutional. Nor have any other extraordinary circumstances been presented to indicate that abstention would not be appropriate. Pp. 457 U. S. 435-437.643 F.2d 119 and 651 F.2d 154, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 457 U. S. 438. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 457 U. S. 438. Page 457 U. S. 425

1974_73-1765

MR. JUSTICE STEWART announced the judgment of the Court and delivered the opinion of the Court (Parts I, II, IV, and V), together with an opinion (Part III), in which MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL, joined.This case requires us to determine once again whether a state law providing assistance to nonpublic, church-related, elementary and secondary schools is constitutional under the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment. Murdock v. Pennsylvania, 319 U. S. 105, 319 U. S. 108; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303.IWith the stated purpose of assuring that every schoolchild in the Commonwealth will equitably share in the benefits of auxiliary services, textbooks, and instructional Page 421 U. S. 352 material provided free of charge to children attending public schools, [Footnote 1] the Pennsylvania General Assembly, in 1972, added Acts 194 and 195, July 12, 1972, Pa.Stat.Ann., Tit. 24, § 9-972, to the Pennsylvania Public School Code of 1949, Pa.Stat.Ann., Tit. 24, §§ 1-101 to 27-2702.Act 194 authorizes the Commonwealth to provide "auxiliary services" to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory attendance requirements. [Footnote 2] "Auxiliary services" Page 421 U. S. 353 include counseling, testing, and psychological services, speech and hearing therapy, teaching and related services for exceptional children, for remedial students, and for the educationally disadvantaged,"and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth."Act 194 specifies that the teaching and service are to be provided in the nonpublic schools themselves by personnel drawn from the appropriate "intermediate unit," part of the public school system of the Commonwealth established to provide special services to local school districts. See Pa.Stat.Ann., Tit. 24, §§ 9-951 to 9-971.Act 195 authorizes the State Secretary of Education, either directly or through the intermediate units, to lend textbooks without charge to children attending nonpublic elementary and secondary schools that meet the Commonwealth's Page 421 U. S. 354 compulsory attendance requirements. [Footnote 3] The books that may be lent are limited to those "which are acceptable for use in any public, elementary, or secondary school of the Commonwealth."Act 195 also authorizes the Secretary of Education, pursuant to requests from the appropriate nonpublic school officials, to lend directly to the nonpublic schools "instructional materials and equipment, useful to the education" of nonpublic school children. [Footnote 4] "Instructional Page 421 U. S. 355 materials" are defined to include periodicals, photographs, maps, charts; sound recordings, films, "or any other printed and published materials of a similar nature." "Instructional equipment," as defined by the Act, includes projection equipment, recording equipment, and laboratory equipment.On February 7, 1973, three individuals and four organizations [Footnote 5] filed a complaint in the District Court for the Page 421 U. S. 356 Eastern District of Pennsylvania challenging the constitutionality of Acts 194 and 195, and requesting an injunction prohibiting the expenditure of any funds under either statute. The complaint alleged that each Act "is a law respecting an establishment of religion in violation of the First Amendment" because each Act"authorizes and directs payments to or use of books, materials and equipment in schools which (1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, and (10) impose religious restrictions on what the faculty may teach."The Secretary of Education and the Treasurer of the Commonwealth were named as the defendants. [Footnote 6] Page 421 U. S. 357A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. After an evidentiary hearing, the court entered its final judgment. 374 F. Supp. 639. In that judgment, the court unanimously upheld the constitutionality of the textbook loan program authorized by Act 195. 374 F. Supp. at 657-658. By a divided vote, the court also upheld the constitutionality of Act 194's provision of auxiliary services to children in nonpublic elementary and secondary schools and Act 195's authorization of loans of instructional materials directly to nonpublic elementary and secondary schools. 374 F. Supp. at 653-659. The court unanimously invalidated that portion of Act 195 authorizing the expenditure of commonwealth funds for the purchase of instructional equipment for loan to nonpublic schools, but only to the extent that the provision allowed the loan of equipment "which, from its nature, can be diverted to religious purposes." 374 F. Supp. at 662. The court gave as examples projection and recording equipment. Id. at 660-661. By a vote of 2-1, the court upheld this provision of Act 195 insofar as it authorizes the loan of instructional equipment that cannot be readily diverted to religious uses. 374 F. Supp. at 660-661.Except with respect to that provision of Act 195 which permits loan of instructional equipment capable of diversion, therefore, the plaintiffs' request for preliminary and final injunctive relief was denied. The plaintiffs (hereinafter the appellants) appealed directly to this Court, pursuant to 28 U.S.C. § 1253. [Footnote 7] We noted probable jurisdiction. 419 U.S. 822. Page 421 U. S. 358IIIn judging the constitutionality of the various forms of assistance authorized by Acts 194 and 195, the District Court applied the three-part test that has been clearly stated, if not easily applied, by this Court in recent Establishment Clause cases. See, e.g., Committee for Public Education Religious Liberty v. Nyquist, 413 U. S. 756, 413 U. S. 772-773; Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613. First, the statute must have a secular legislative purpose. E.g., Epperson v. Arkansas, 393 U. S. 97. Second, it must have a "primary effect" that neither advances nor inhibits religion. E.g., School District of Abington Township v. Schempp, 374 U. S. 203. Third, the statute and its administration must avoid excessive government entanglement with religion. E.g., Walz v. Tax Comm'n, 397 U. S. 664.These tests constitute a convenient, accurate distillation of this Court's efforts over the past decades to evaluate a wide range of governmental action challenged as violative of the constitutional prohibition against laws "respecting an establishment of religion," and thus provide the proper framework of analysis for the issues presented in the case before us. It is well to emphasize, Page 421 U. S. 359 however, that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the Establishment Clause have been impaired. See Tilton v. Richardson, 403 U. S. 672, 403 U. S. 677-678 (plurality opinion of BURGER, C.J.).Primary among the evils against which the Establishment Clause protects"have been 'sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v. Tax Comm'n, supra, at 397 U. S. 668; Lemon v. Kurtzman, supra, at 403 U. S. 612."Committee for Public Education & Religious Liberty v. Nyquist, supra, at 413 U. S. 772. The Court has broadly stated that"[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16. But it is clear that not all legislative programs that provide indirect or incidental benefit to a religious institution are prohibited by the Constitution. See Zorach v. Clauson, 343 U. S. 306, 343 U. S. 312; Lemon v. Kurtzman, supra, at 403 U. S. 614. "The problem, like many problems in constitutional law, is one of degree." Zorach v. Clauson, supra, at 343 U. S. 314.IIIThe District Court held that the textbook loan provisions of Act 195 are constitutionally indistinguishable from the New York textbook loan program upheld in Board of Education v. Allen, 392 U. S. 236. We agree.Approval of New York's textbook loan program in the Allen case was based primarily on this Court's earlier decision in Everson v. Board of Education, supra, holding that the constitutional prohibition against laws "respecting Page 421 U. S. 360 an establishment of religion" did not prevent"New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools."330 U.S. at 330 U. S. 17. Similarly, the Court in Allen found that the New York textbook law"merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil, and ownership remains, at least technically, in the State. Thus, no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools."392 U.S. at 392 U. S. 243-244. The Court conceded that provision of free textbooks might make it"more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson, and does not, alone, demonstrate an unconstitutional degree of support for a religious institution."Id. at 392 U. S. 244.Like the New York program, the textbook provisions of Act 195 extend to all schoolchildren the benefits of Pennsylvania's well established policy of lending textbooks free of charge to elementary and secondary school students. [Footnote 8] Page 421 U. S. 361 As in Allen, Act 195 provides that the textbooks are to be lent directly to the student, not to the nonpublic school itself, although, again as in Allen, the administrative practice is to have student requests for the books filed initially with the nonpublic school and to have the school authorities prepare collective summaries of these requests which they forward to the appropriate public officials. See Board of Education v. Allen, supra at 392 U. S. 244 n. 6. [Footnote 9] Thus, the financial benefit of Pennsylvania's textbook program, like New York's, is to parents and children, not to the nonpublic schools. [Footnote 10]Under New York law, the books that could be lent were limited to textbooks"which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities."N.Y.Educ.Law § 701(3). The law was construed by the New York Court of Appeals to apply solely to secular textbook. Board of Education v. Allen, 20 N.Y.2d 109, 117, 228 N.E.2d 791, 794.Act 195 similarly limits the books that may be lent to "textbooks which are acceptable for use in any public, elementary, or secondary school of the Commonwealth." [Footnote 11] Moreover, the record in the case Page 421 U. S. 362 before us, like the record in Allen, see, e.g., 392 U.S. at 392 U. S. 244-245, 392 U. S. 248, contains no suggestion that religious textbooks will be lent, or that the books provided will be used for anything other than purely secular purposes.In sum, the textbook loan provisions of Act 195 are in every material respect identical to the loan program approved in Allen. Pennsylvania, like New York, "merely makes available to all children the benefits of a general program to lend school books free of charge." As such, those provisions of Act 195 do not offend the constitutional prohibition against laws "respecting an establishment of religion." [Footnote 12]IVAlthough textbooks are lent only to students, Act 195 authorizes the loan of instructional material and equipment Page 421 U. S. 363 directly to qualifying nonpublic elementary and secondary schools in the Commonwealth. The appellants assert that such direct aid to Pennsylvania's nonpublic schools, including church-related institutions, constitutes an impermissible establishment of religion.Act 195 is accompanied by legislative findings that the welfare of the Commonwealth requires that present and future generations of schoolchildren be assured ample opportunity to develop their intellectual capacities.Act 195 is intended to further that objective by extending the benefits of free educational aids to every schoolchild in the Commonwealth, including nonpublic school students, who constitute approximately one quarter of the schoolchildren in Pennsylvania. Act 185, § 1(a), Pa.Stat.Ann., Tit. 24, § 9-972(a). We accept the legitimacy of this secular legislative purpose. Cf. Lemon v. Kurtzman, 403 U.S. at 403 U. S. 609, 403 U. S. 613; Sloan v. Lemon, 413 U. S. 825, 413 U. S. 829-830. But we agree with the appellants that the direct loan of instructional material and equipment has the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act. [Footnote 13]The only requirement imposed on nonpublic schools to qualify for loans of instructional material and equipment is that they satisfy the Commonwealth's compulsory attendance law by providing, in the English language, the subjects and activities prescribed by the standards of the State Board of Education. Pa.Stat.Ann., Tit. 24, § 13-1327. Commonwealth officials, as a matter of Page 421 U. S. 364 state policy, do not inquire into the religious characteristics, if any, of the nonpublic schools requesting aid pursuant to Act 195. The Coordinator of Nonpublic School Services, the chief administrator of Acts 194 and 195, testified that a school would not be barred from receiving loans of instructional material and equipment even though its dominant purpose was the inculcation of religious values, even if it imposed religious restrictions on admissions or on faculty appointments, and even if it required attendance at classes in theology or at religious services. In fact, of the 1,320 nonpublic schools in Pennsylvania that comply with the requirements of the compulsory attendance law, and thus qualify for aid under Act 195, more than 75% are church-related or religiously affiliated educational institutions. Thus, the primary beneficiaries of Act 195's instructional material and equipment loan provisions, like the beneficiaries of the "secular educational services" reimbursement program considered in Lemon v. Kurtzman, and the parent tuition reimbursement plan considered in Sloan v. Lemon, are nonpublic schools with a predominant sectarian character. [Footnote 14]It is, of course, true that, as part of general legislation made available to all students, a State may include church-related schools in programs providing bus transportation, school lunches, and public health facilities -- secular and non-ideological services unrelated to the primary, religion-oriented educational function of the sectarian school. The indirect and incidental benefits to church-related schools from those programs do not offend the constitutional prohibition against establishment Page 421 U. S. 365 of religion. See, e.g., Everson v. Board of Education, 330 U. S. 1; Lemon v. Kurtzman, supra, at 403 U. S. 616-617; Committee for Public Education Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 775. But the massive aid provided the church-related nonpublic schools of Pennsylvania by Act 195 is neither indirect nor incidental.For the 1972-1973 school year, the Commonwealth authorized just under $12 million of direct aid to the predominantly church-related nonpublic schools of Pennsylvania through the loan of instructional material and equipment pursuant to Act 195. [Footnote 15] To be sure, the material and equipment that are the subjects of the loan -- maps, charts, and laboratory equipment, for example -- are "self-polic[ing], in that, starting as secular, nonideological and neutral, they will not change in use." 374 F. Supp. at 660. But faced with the substantial amounts of direct support authorized by Act 195, it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools, and to then characterize Act 195 as channeling aid to the secular without providing direct aid to the sectarian. Even Page 421 U. S. 366 though earmarked for secular purposes,"when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,"state aid has the impermissible primary effect of advancing religion. Hunt v. McNair, 413 U. S. 734, 413 U. S. 743.The church-related elementary and secondary schools that are the primary beneficiaries of Act 195's instructional material and equipment loans typify such religion-pervasive institutions. The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S. at 403 U. S. 616-617. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole.[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.Id. at 403 U. S. 657 (opinion of BRENNAN, J.). See generally Freund, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1688-1689. For this reason, Act 195's direct aid to Pennsylvania's predominantly church-related, nonpublic elementary and secondary schools, even though ostensibly limited to wholly neutral, secular instructional material and equipment, inescapably results in the direct and substantial advancement of religious activity, cf. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 781-783, and n. 39, and thus constitutes an impermissible establishment of religion. [Footnote 16] Page 421 U. S. 367VUnlike Act 195, which provides only for the loan of teaching material and equipment, Act 194 authorizes the Secretary of Education, through the intermediate units, to supply professional staff, as well as supportive materials, equipment, and personnel, to the nonpublic schools of the Commonwealth. The "auxiliary services" authorized by Act 194 -- remedial and accelerated instruction, guidance counseling and testing, speech and hearing services -- are provided directly to nonpublic school children with the appropriate special need. But the services are provided only on the nonpublic school premises, and only when "requested by nonpublic school representatives." Department of Education, Commonwealth of Pennsylvania, Guidelines for the Administration of Acts 194 and 195, § 1.3.The legislative findings accompanying Act 194 are virtually identical to those in Act 195: Act 194 is intended to assure full development of the intellectual capacities of the children of Pennsylvania by extending the benefits Page 421 U. S. 368 of free auxiliary services to all students in the Commonwealth. Act 194, 1(a), Pa.Stat.Ann., Tit. 24, § 9972(a). The appellants concede the validity of this secular legislative purpose. Nonetheless, they argue that Act 194 constitutes an impermissible establishment of religion because the auxiliary services are provided on the premises of predominantly church-related schools. [Footnote 17]In rejecting the appellants' argument, the District Court emphasized that "auxiliary services" are provided directly to the children involved, and are expressly limited to those services which are secular, neutral, and nonideological. The court also noted that the instruction and counseling in question served only to supplement the basic, normal educational offerings of the qualifying nonpublic schools. Any benefits to church-related schools that may result from the provision of such services, the District Court concluded, are merely incidental and indirect, and thus not impermissible. See 374 F. Supp. at 656-657. The court also held that no continuing supervision of the personnel providing auxiliary services would be necessary to establish that Act 194's secular limitations were observed or to guarantee that a member of the auxiliary services staff had not "succumb[ed] to sectarianization of his or her professional work." 374 F. Supp. at 657. Page 421 U. S. 369We need not decide whether substantial State expenditures to enrich the curricula of church-related elementary and secondary schools, [Footnote 18] like the expenditure of state funds to support the basic educational program of those schools, necessarily result in the direct and substantial advancement of religious activity. [Footnote 19] For decisions of this Court make clear that the District Court erred in relying entirely on the good faith and professionalism of the secular teachers and counselors functioning in church-related schools to ensure that a strictly nonideological posture is maintained.In Earley v. DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court invalidated a Rhode Island statute authorizing salary supplements for teacher of secular subjects in nonpublic schools. The Court expressly rejected the proposition, relied upon by the District Court in the case before us, that it was sufficient for the State to assume that teachers in church-related schools would succeed in segregating their religious beliefs from their secular educational duties."We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. . . ."". . . But the potential for impermissible fostering of religion is present. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion. . . . "Page 421 U. S. 370"A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. . . ."403 U.S. at 403 U. S. 618-619.The prophylactic contacts required to ensure that teachers play a strictly nonideological role, the Court held, necessarily give rise to a constitutionally intolerable degree of entanglement between church and state. Id. at 403 U. S. 619. The same excessive entanglement would be required for Pennsylvania to be "certain," as it must be, that Act 194 personnel do not advance the religious mission of the church-related schools in which they serve. Public Funds for Public Schools v. Marburger, 358 F. Supp. 29, 40-41, aff'd, 417 U.S. 961. [Footnote 20]That Act 194 authorizes state funding of teachers only for remedial and exceptional students, and not for normal students participating in the core curriculum, does not distinguish this case from Earley v. DiCenso and Lemon v. Kurtzman, supra. 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. The likelihood of inadvertent fostering of religion Page 421 U. S. 371 may be less in a remedial arithmetic class than in a medieval history seminar, but a diminished probability of impermissible conduct is not sufficient: "The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion." 403 U.S. at 403 U. S. 619. And a state-subsidized guidance counselor is surely as likely as a state-subsidized chemistry teacher to fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities. [Footnote 21]The fact that the teachers and counselors providing auxiliary services are employees of the public intermediate unit, rather than of the church-related schools in which they work, does not substantially eliminate the need for continuing surveillance. To be sure, auxiliary services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority. Cf. Lemon v. Kurtzman, 403 U.S. at 403 U. S. 618. But they are performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained. See id. at 403 U. S. 618-619. Page 421 U. S. 372 The potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present. To be certain that auxiliary teachers remain religiously neutral, as the Constitution demands, the State would have to impose limitations on the activities of auxiliary personnel and then engage in some form of continuing surveillance to ensure that those restrictions were being followed. [Footnote 22]In addition, Act 194, like the statutes considered in Lemon v. Kurtzman, supra, and Committee for Public Education & Religious Liberty v. Nyquist, supra, creates a serious potential for divisive conflict over the issue of aid to religion -- "entanglement in the broader sense of continuing political strife." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 413 U. S. 794. The recurrent nature of the appropriation process guarantees annual reconsideration of Act 194 and the prospect of repeated confrontation between proponents and opponents of the auxiliary services program. The Act thus provides successive opportunities for political fragmentation and division along religious lines, one of the principal evils against which the Establishment Clause was intended to protect. See Lemon v. Kurtzman, 403 U.S. at 403 U. S. 622-623. This potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary services personnel remain strictly neutral and nonideological when functioning in church-related schools, compels the conclusion that Act 194 violates the constitutional prohibition against laws "respecting an establishment of religion." Page 421 U. S. 373The judgment of the District Court as to Act 194 is reversed; its judgment as to the textbook provisions of Act 195 is affirmed, but, as to that Act's other provisions, now before us, its judgment is reversed.It is so ordered

U.S. Supreme CourtMeek v. Pittenger, 421 U.S. 349 (1975)Meek v. PittengerNo. 73-1765Argued February 19, 1976Decided May 19, 1975421 U.S. 349SyllabusThe Commonwealth of Pennsylvania is authorized to provide directly to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory attendance requirements "auxiliary services" (Act 194) and loans of textbook "acceptable for use in" the public schools (Act 195). Act 195 also provides for loans directly to the nonpublic schools of "instructional materials and equipment, useful to the education" of nonpublic school children. The auxiliary services include counseling, testing, psychological services, speech and hearing therapy, and related services for exceptional, remedial, or educationally disadvantaged students, "and such other secular, neutral, non-ideological service as are of benefit to nonpublic school children" and are provided for those in public schools. The instructional materials include periodicals, photographs, maps, charts, recordings, and films. The instructional equipment includes projectors, recorders, and laboratory paraphernalia. Appellants brought this suit in the District Court challenging the constitutionality of both Acts. The court upheld the constitutionality of the textbook and instructional materials loan programs and the auxiliary services program, but invalidated the instructional equipment loan program to the extent that it sanctioned the loan of equipment "which, from its nature, can be diverted to religious purposes."Held: Act 194 and all but the textbook loan provisions of Act 195 violate the Establishment Clause of the First Amendment as made applicable to the States by the Fourteenth. Pp. 421 U. S. 359-372; 421 U. S. 388.374 F. Supp. 39, affirmed in part, reversed in part.MR. JUSTICE STEWART delivered the opinion of the Court with respect to Parts I, II, IV, and V, finding:1. The direct loan of instructional materials and equipment to nonpublic schools authorized by Act 195 has the unconstitutional primary effect of establishing religion because of the predominantly Page 421 U. S. 350 religious character of the schools benefiting from the Act, since 75% of Pennsylvania's nonpublic schools that comply with the compulsory attendance law, and thus qualify for aid under Act 195 are church-related or religiously affiliated. The massive aid that nonpublic schools thus receive is neither indirect nor incidental, and, even though such aid is ostensibly limited to secular instructional material and equipment, the inescapable result is the direct and substantial advancement of religious activity. Pp. 421 U. S. 362-366.2.Act 194 also violates the Establishment Clause because the auxiliary services are provided at predominantly church-related schools. The District Court erred in holding that such services are permissible because they are only secular, neutral, and nonideological, since excessive entanglement would be required for Pennsylvania to be assured that the public school professional staff members who provide the services do not advance the religious mission of the church-related schools in which they serve. Cf. Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 618. Pp. 421 U. S. 367-372.MR. JUSTICE STEWART, joined by MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL, concluded in Part III that Act 195's textbook loan provisions, which are limited to textbooks acceptable for use in the public schools, are constitutional, since they "merely [make] available to all children the benefits of a general program to lend schools books free of charge," and the "financial benefit is to parents and children, not to schools," Board of Education v. Allen, 392 U. S. 236, 392 U. S. 243-244. Pp. 421 U. S. 359-362.MR. JUSTICE REHNQUIST, joined by MR. JUSTICE WHITE, concluded that the textbook loan program of Act 195 is constitutionally indistinguishable from the program upheld in Board of Education v. Allen, supra. P. 421 U. S. 388.STEWART, J., announced the judgment of the Court and delivered an opinion of the Court, in which BLACKMUN and POWELL, JJ., joined, and in all but Part III of which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 421 U. S. 373. BURGER, C.J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 421 U. S. 385. REHNQUIST, J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, J., joined, post p. 421 U. S. 387. Page 421 U. S. 351

1965_471

MR. JUSTICE STEWART delivered the opinion of the Court.These consolidated cases, sequels to Georgia v. Rachel, ante, p. 384 U. S. 780, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law. [Footnote 1] They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U.S.C. § 1443(1964 ed). [Footnote 2] Alleging Page 384 U. S. 811 that they were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U.S.C. § 1971 et seq. (1964 ed.). [Footnote 3] Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was unconstitutionally Page 384 U. S. 812 applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that"a good claim for removal under § 1443(1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination."Peacock v. City of Greenwood, 347 F.2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants' allegations. At the same time, the Court of Appeals rejected the defendants' contentions under 28 U.S.C. § 1443(2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law, and who can therefore be said to have acted under "color of authority" of the law within the meaning of that provision. [Footnote 4]In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July Page 384 U. S. 813 and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood. [Footnote 5] These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the"sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation"in Mississippi. As grounds for removal, the defendants specifically invoked 28 U.S.C. § § 1443(1) [Footnote 6] and 1443(2). [Footnote 7] The District Court held that the cases Page 384 U. S. 814 had been improperly removed, and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues "identical with" those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants' allegations under § 1443(1). Weathers v. City of Greenwood, 347 F.2d 986.We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U.S. 971. [Footnote 8] As in Georgia v. Rachel, ante, p. 384 U. S. 780, we deal here not with questions of congressional power, but with issues of statutory construction.IThe individual petitioners contend that, quite apart from 28 U.S.C. § 1443(1), they are entitled to remove their cases to the District Court under 28 U.S.C. § 1443(2), which authorizes the removal of a civil action or criminal prosecution for "any act under color of authority derived from any law providing for equal rights. . . ." The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred "color of authority" upon them to perform the acts for which they Page 384 U. S. 815 are being prosecuted by the State. We reject this argument because we have concluded that the history of § 1443(2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties. [Footnote 9]The progenitor of § 1443(2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions"commenced in any State court . . . against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof. . . ."(Emphasis added.)The statutory phrase "officer . . . or other person" characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely. [Footnote 10] The definition of the persons entitled Page 384 U. S. 816 to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute's ancestor. See Madruga v. Superior Court, 346 U. S. 556, 346 U. S. 560, n. 12; Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 353 U. S. 227-228.In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language "officer . . . or other person" points squarely to the conclusion that the phrase "or other person" meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the "officer . . . or other person" phrase and the next preceding portion of the statute, the predecessor of the present § 1443(1), which granted removal to "any . . . person" who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between "officer . . . or other person" and "any . . . person" in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners' contentions, the two phrases would in fact have been almost entirely coextensive.It is clear that the "other person" in the "officer . . . or other person" formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, § § 4-7, of the Act. 14 Stat. 28-29. Section 4 of the Act specifically charged both the officers Page 384 U. S. 817 and the agents of the Freedmen's Bureau, [Footnote 11] among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with violations Page 384 U. S. 818 of the Act. [Footnote 12] By the "color of authority" removal provision of § 3 of the Civil Rights Act, "agents" who derived their authority from the Freedman's Bureau legislation would be entitled as "other persons," if not as "officers," to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen's Bureau legislation and the Civil Rights Act. [Footnote 13] Section 5 of the Civil Rights Act, now 42 U.S.C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint "one or more suitable persons" to execute warrants and other process issued by the commissioners. [Footnote 14] These "suitable persons" were, in turn, specifically Page 384 U. S. 819 authorized "to summon and call to their aid the bystanders or posse comitatus of the proper county." [Footnote 15] Section 6 of the Act provided criminal penalties for any individual who obstructed"any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them,"or who rescued Page 384 U. S. 820 or attempted to rescue prisoners "from the custody of the officer, other person or persons, or those lawfully assisting." [Footnote 16] Finally, § 7 of the Act, now 42 U.S.C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the "person or persons authorized to execute the process" -- i.e., the "one or more suitable persons" of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to "other persons" in context obviously relating to positive enforcement activity under the Act. [Footnote 17] Page 384 U. S. 821The derivation of the statutory phrase "For any act" in § 1443(2) confirms the interpretation that removal under this subsection is limited to federal officers and those acting under them. The phrase "For any act" was substituted in 1948 for the phrase "for any arrest or imprisonment or other trespasses or wrongs." Like the "officer . . . or other person" provision, the language specifying the acts on which removal could be grounded had, with minor changes, persisted until 1948 in the civil rights removal statute since its original introduction in the 1866 Act. The language of the original Civil Rights Act -- " arrest or imprisonment, trespasses, or wrongs" -- is preeminently the language of enforcement. The Page 384 U. S. 822 words themselves denote the very sorts of activity for which federal officers, seeking to enforce the broad guarantees of the 1866 Act, were likely to be prosecuted in the state courts. As the Court of Appeals for the Second Circuit has put it,"'Arrest or imprisonment, trespasses, or wrongs,' were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts 'done or committed by virtue of or under color of authority derived from' specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced. . . ."New York v. Galamison, 342 F.2d 255, 262.The language of the "color of authority" removal provision of § 3 of the Civil Rights Act of 1866 was taken directly from the Habeas Corpus Suspension Act of 1863, 12 Stat. 755, which authorized the President to suspend the writ of habeas corpus and precluded civil and criminal liability of any person making a search, seizure, arrest, or imprisonment under any order of the President during the rebellion. [Footnote 18] Section 5 of the 1863 Act provided for the removal of all suits or prosecutions"against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress."12 Stat. 756. See The Mayor v. Cooper, 6 Wall. 247; Phillips v. Gaines, 131 U.S.App. clxix. Since the 1863 Act granted no rights to private individuals, its removal provision was concerned solely with the protection of federal officers and persons acting Page 384 U. S. 823 under them in the performance of their official duties. [Footnote 19] Thus at the same time that Congress expanded the availability of removal by enacting the "denied or cannot enforce" clause in § 3 of the Civil Rights Act of 1866, it repeated almost verbatim in the "color of authority" clause the language of the 1863 Act [Footnote 20] -- language that was clearly limited to enforcement activity by federal officers and those acting under them. [Footnote 21] Page 384 U. S. 824For these reasons, we hold that the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights. [Footnote 22] Accordingly, the individual petitioners in the case before us had no right of removal to the federal court under 28 U.S.C. § 1443(2).IIWe come, then, to the issues which this case raises as to the scope of 28 U.S.C. § 1443(1). In Georgia v. Rachel, decided today, we have held that removal of a state court trespass prosecution can be had under § 1443(1) upon a petition alleging that the prosecution stems exclusively from the petitioners' peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964, § 201 et seq., 78 Stat. 243, 42 U.S.C. § 2000a et seq. (1964 ed.). Since that Act Page 384 U. S. 825 itself, as construed by this Court in Hamm v. City of Rock Hill, 379 U. S. 306, 379 U. S. 310, specifically and uniquely guarantees that the conduct alleged in the removal petition in Rachel may "not be the subject of trespass prosecutions," the defendants inevitably are "denied or cannot enforce in the courts of [the] State a right under any law providing for . . . equal civil rights," by merely being brought before a state court to defend such a prosecution. The present case, however, is far different.In the first place, the federal rights invoked by the individual petitioners include some that clearly cannot qualify under the statutory definition as rights under laws provided for "equal civil rights." The First Amendment rights of free expression, for example, so heavily relied upon in the removal petitions, are not rights arising under a law providing for "equal civil rights" within the meaning of § 1443(1). The First Amendment is a great charter of American freedom, and the precious rights of personal liberty it protects are undoubtedly comprehended in the concept of "civil rights." Cf. Hague v. CIO, 307 U. S. 496, 307 U. S. 531-532 (separate opinion of Stone, J.). But the reference in § 1443(1) is to "equal civil rights." That phrase, as our review in Rachel of its legislative history makes clear, does not include the broad constitutional guarantees of the First Amendment. [Footnote 23] A precise definition of the limitations of the phrase "any law providing for . . . equal civil rights" in § 1443(1) is not a matter we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U.S.C. § 1971 and 42 U.S.C. § 1981, do qualify under the statutory definition. [Footnote 24] Page 384 U. S. 826The fundamental claim in this case, then, is that a case for removal is made under § 1443(1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent. In Rachel, the defendants relied on the specific provisions of a preemptive federal civil rights law -- §§ 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. § § 2000a(a) and 2000a-2(c) (1964 ed.), as construed in Hamm v. City of Rock Hill, supra -- that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no State should even attempt to prosecute them for their conduct. The Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to "violate" the explicit terms of the state criminal trespass law with the impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded "violation" would directly deny their federal right "in the courts of [the] State." The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens -- on civil rights advocates, on Negroes, or on anybody else -- to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a Page 384 U. S. 827 policeman. Second, no federal law confers immunity from state prosecution on such charges. [Footnote 25]To sustain removal of these prosecutions to a federal court upon the allegations of the petitions in this case would therefore mark a complete departure from the terms of the removal statute, which allow removal only when a person is "denied or cannot enforce" a specified federal right "in the courts of [the] State," and a complete departure as well from the consistent line of this Court's decisions from Strauder v. West Virginia, 100 U. S. 303, to Kentucky v. Powers, 201 U. S. 1. [Footnote 26] Those cases all stand for at least one basic proposition: it is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will Page 384 U. S. 828 be "denied or cannot enforce in the courts" of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. Georgia v. Rachel, supra; Strauder v. West Virginia, 100 U. S. 303.What we have said is not for one moment to suggest that the individual petitioners in this case have not alleged a denial of rights guaranteed to them under federal law. If, as they allege, they are being prosecuted on baseless charges solely because of their race, then there has been an outrageous denial of their federal rights, and the federal courts are far from powerless to redress the wrongs done to them. The most obvious remedy is the traditional one emphasized in the line of cases from Virginia v. Rives, 100 U. S. 313, to Kentucky v. Powers, 201 U. S. 1 -- vindication of their federal claims on direct review by this Court, if those claims have not been vindicated by the trial or reviewing courts of the State. That is precisely what happened in two of the cases in the Rives-Powers line of decisions, where removal under the predecessor of § 1443(1) was held to be unauthorized, but where the state court convictions were overturned because of a denial of the defendants' federal rights at their trials. [Footnote 27] That is precisely what has happened in Page 384 U. S. 829 countless cases this Court has reviewed over the years -- cases like Shuttlesworth v. Birmingham, 382 U. S. 87, to name one at random decided in the present Term."Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions."England v. Medical Examiners, 375 U. S. 411, 375 U. S. 434 (DOUGLAS, J., concurring).But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may, under some circumstances, obtain an injunction in the federal court. See Dombrowski v. Pfister, 380 U. S. 479. If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. Louisville, 362 U. S. 199. If at their trial, they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U. S. 391. If their federal claims at trial have been denied through an unfair or deficient factfinding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U. S. 293.Other sanctions, civil and criminal, are available in the federal courts against officers of a State who violate the petitioners' federal constitutional and statutory rights. Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and Page 384 U. S. 830 statutory rights as well. [Footnote 28] Monroe v. Pape, 365 U. S. 167. And, only this Term, we have held that the provisions of 18 U.S.C. § 241 (1964 ed.), a criminal law that imposes punishment of up to 10 years in prison, may be invoked against those who conspire to deprive any citizen of the "free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States" by "causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts." [Footnote 29] United States v. Guest, 383 U. S. 745, 383 U. S. 756. Page 384 U. S. 831But the question before us now is not whether state officials in Mississippi have engaged in conduct for which they may be civilly or criminally liable under federal law. The question, precisely, is whether the individual petitioners are entitled to remove these state prosecutions to a federal court under the provisions of 28 U.S.C. § 1443(1). Unless the words of this removal statute are to be disregarded and the previous consistent decisions of this Court completely repudiated, the answer must clearly be that no removal is authorized in this case. In the Rachel case, decided today, we have traced the course of those decisions against the historic background of the statute they were called upon to interpret. And in Rachel, we have concluded that removal to the federal court in the narrow circumstances there presented would not be a departure from the teaching of this Court's decisions, because the Civil Rights Act of 1964, in those narrow circumstances, "substitutes a right for a crime." Hamm v. Rock Hill, 379 U. S. 306, 379 U. S. 315.We need not and do not necessarily approve or adopt all the language and all the reasoning of every one of this Court's opinions construing this removal statute, from Strauder v. West Virginia, 100 U. S. 303, to Kentucky v. Powers, 201 U. S. 1. But we decline to repudiate those decisions, and we decline to do so not out of a blind adherence to the principle of stare decisis, but because, after independent consideration, we have determined, for the reasons expressed in this opinion and in Rachel, that those decisions were correct in their basic conclusion that the provisions of § 1443(1) do not operate to work a wholesale dislocation of the historic relationship between the state and the federal courts in the administration of the criminal law. Page 384 U. S. 832It is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail. In the fiscal year 1963, there were 14 criminal removal cases of all kinds in the entire Nation; in fiscal 1964, there were 43. The present case was decided by the Court of Appeals for the Fifth Circuit on June 22, 1965, just before the end of the fiscal year. In that year, fiscal 1965, there were 1,079 criminal removal cases in the Fifth Circuit alone. [Footnote 30] But this phenomenal increase is no more than a drop in the bucket of what could reasonably be expected in the future. For if the individual petitioners should prevail in their interpretation of § 1443(1), then every criminal case in every court of every State -- on any charge from a five dollar misdemeanor to first-degree murder -- would be removable to a federal court upon a petition alleging (1) that the defendant was being prosecuted because of his race [Footnote 31] and that he was completely innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the state court. On motion to remand, the federal court would be required in every case to hold a hearing, which would amount to at least a preliminary trial of the motivations of the state officers who arrested and charged the defendant, of the quality of the state court or judge before whom the charges were filed and of the defendant's innocence or guilt. And the federal court might, of course, be located hundreds of miles away from the place where the charge was brought. This hearing could be followed either by a full trial in the federal court or by a remand order. Every remand order would be Page 384 U. S. 833 appealable as of right to a United States Court of Appeals and, if affirmed there, would then be reviewable by petition for a writ of certiorari in this Court. If the remand order were eventually affirmed, there might, if the witnesses were still available, finally be a trial in the state court, months or years after the original charge was brought. If the remand order were eventually reversed, there might finally be a trial in the federal court, also months or years after the original charge was brought.We have no doubt that Congress, if it chose, could provide for exactly such a system. We may assume that Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the courts of the States, or that jurisdiction of such issues be shared. [Footnote 32] And, in the exercise of that power, we may assume that Congress is constitutionally fully free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another. [Footnote 33]But before establishing the regime the individual petitioners propose, Congress would no doubt fully consider many questions. The Court of Appeals for the Fourth Circuit has mentioned some of the practical questions that would be involved:"If the removal jurisdiction is Page 384 U. S. 834 to be expanded and federal courts are to try offenses against state laws, cases not originally cognizable in the federal courts, what law is to govern, who is to prosecute, under what law is a convicted defendant to be sentenced and to whose institution is he to be committed . . .?"Baines v. Danville, 357 F.2d 756, 768-769. To these questions, there surely should be added the very practical inquiry as to how many hundreds of new federal judges and other federal court personnel would have to be added in order to cope with the vastly increased caseload that would be produced.We need not attempt to catalog the issues of policy that Congress might feel called upon to consider before making such an extreme change in the removal statute. But prominent among those issues, obviously, would be at least two fundamental questions: has the historic practice of holding state criminal trials in state courts -- with power of ultimate review of any federal questions in this Court -- been such a failure that the relationship of the state and federal courts should now be revolutionized? Will increased responsibility of the state courts in the area of federal civil rights be promoted and encouraged by denying those courts any power at all to exercise that responsibility?We postulate these grave questions of practice and policy only to point out that, if changes are to be made in the long-settled interpretation of the provisions of this century-old removal statute, it is for Congress, and not for this Court, to make them. Fully aware of the established meaning the removal statute had been given by a consistent series of decisions in this Court, Congress, in 1964, declined to act on proposals to amend the law. [Footnote 34] Page 384 U. S. 835 All that Congress did was to make remand orders appealable, and thus invite a contemporary judicial consideration of the meaning of the unchanged provisions of 28 U.S.C. § 1443. We have accepted that invitation, and have fully considered the language and history of those provisions. Having done so, we find that § 1443 does not justify removal of these state criminal prosecutions to a federal court. Accordingly the judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtCity of Greenwood v. Peacock, 384 U.S. 808 (1966)City of Greenwood v. PeacockNo. 471Argued April 26, 1966Decided June 20, 1966*384 U.S. 808SyllabusVarious state criminal charges were brought against the individual petitioners, members of groups engaging in civil rights activities in Mississippi in 1964, and they filed petitions to remove their cases to the Federal District Court alleging under 28 U.S.C. § 1443(1) that they were denied or could not enforce in the state courts rights under laws providing for the equal civil rights of citizens, and under 28 U.S.C. § 1443(2) that they were being prosecuted for acts done under color of the authority of the Constitution and laws of the United States. The § 1443(1) removal claims were fundamentally based on allegations (1) that the individual petitioners were arrested because they were Negroes or were helping Negroes assert their rights and that they were innocent of the charges against them, or (2) that they would be unable to obtain fair state trials. The § 1443(2) removal claims were based on the contention that the various federal constitutional and statutory provisions (including 42 U.S.C. § § 1971 and 1981) invoked in the removal petitions conferred "color of authority" on the individual petitioners to commit the acts for which they are being prosecuted. The District Court, on motion, remanded the cases to the city police court for trial. The Court of Appeals reversed, holding that a valid removal claim under § 1443(1) had been stated by allegations that a state statute had been applied before trial so as to deprive an accused of his equal civil rights where the arrest and charge thereunder were effected for reasons of racial discrimination, and remanded the cases to the District Court for a hearing on the truth of the allegations. The court rejected the § 1443(2) contentions, holding that provision available only to those who have acted in an official or quasi-official capacity under federal law.Held:1. The individual petitioners had no removal right under 28 U.S.C. § 1443(2), since, as the legislative history of that provision makes clear, that provision applies only in the case of federal Page 384 U. S. 809 officers and persons assisting such officers in performing their duties under a federal law providing for equal civil rights. Pp. 384 U. S. 814-824.2. Section 1443(1) permits removal only in the rare situation where it can be clearly predicted by reason of the operation of a pervasive and explicit law that federal rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. Such not being the case here, the individual petitioners are not entitled to removal under § 1443(1). Pp. 384 U. S. 824-828.(a) Some of the rights invoked by the removal petitions, such as those of free expression under the First Amendment, clearly cannot meet the statutory definition of "equal civil rights." P. 384 U. S. 825.(b) Neither the two federal laws specifically referred to in the removal petitions (42 U.S.C. § § 1971, 1981), nor any others confer an absolute right on private citizens to commit the acts involved in the charges against the individual petitioners or grant immunity from state prosecution on such charges. Georgia v. Rachel, ante, p. 384 U. S. 780, distinguished. Pp. 384 U. S. 826-827.(c) Removal under § 1443(1) cannot be supported merely by showing that there has been an illegal denial of civil rights by state officials in advance of trial, that the charges against the defendant are false, or that the defendant cannot obtain a fair trial in a particular state court. Pp. 384 U. S. 827-828.3. Section 1443(1) does not work a wholesale dislocation of the historic relationship between the state and federal courts in the administration of the criminal law, as the line of decisions from Strauder v. West Virginia, 100 U. S. 303, to Kentucky v. Powers, 201 U. S. 1, makes clear. If changes are to be made in the long-settled interpretation of § 1443(1), it is for Congress, not this Court, to make them. Pp. 384 U. S. 832-835.347 F.2d 679, 986, reversed. Page 384 U. S. 810

1980_79-1176

JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether a decision by the city of Memphis to close the north end of West Drive, a street that traverses a white residential community, violated § 1 of the Civil Rights Act of 1866, Rev.Stat. § 1978, 42 U.S.C. § 1982, or the Thirteenth Amendment to the United States Constitution. [Footnote 1] The city's action was challenged by respondents, who resided in a predominantly black area to the north. The Court of Appeals ultimately held the street closing invalid because it adversely affected respondents' ability to hold and enjoy their property. 610 F.2d 395. We reverse because the record does not support that holding.IMost of the relevant facts concerning the geography, the decision to close the street, and the course of the litigation are not in dispute. The inferences to be drawn from the evidence, however, are subject to some disagreement.A. GeographyHein Park, a small residential community in Memphis, Tenn., is bounded on three sides by thoroughfares and on the west by the campus of Southwestern University. West Drive is a two-lane street about a half mile long passing through the center of Hein Park. Its southern terminus is a short distance from an entrance to Overton Park, a large recreation Page 451 U. S. 103 area containing, among other facilities, the municipal zoo. [Footnote 2] Its northern terminus is at the intersection of Jackson Ave. and Springdale St., two heavily traveled four-lane avenues. West Drive is one of three streets that enter Hein Park from the north; two streets enter from the east.The closing will have some effect on both through traffic and local traffic. Prior to the closing, a significant volume of traffic southbound on Springdale St. would continue south on West Drive and then -- because of the location of Overton Park to the south of Hein Park -- make either a right or a left turn to the next through street a few blocks away, before resuming the southerly route to the center of the city. The closing of West Drive will force this traffic to divert to the east or west before entering Hein Park, instead of when it leaves, but the closing will not make the entire route any longer. With respect to local traffic, the street closing will add some distance to the trip from Springdale St. to the entrance to Overton Park, and will make access to some homes in Hein Park slightly less convenient.The area to the north of Hein Park is predominantly black. All of the homes in Hein Park were owned by whites when the decision to close the street was made.B. City ApprovalIn 1970, residents of Hein Park requested the city to close four streets leading into the subdivision. After receiving objections from the police, fire, and sanitation departments, the city denied the request. [Footnote 3] In its report regarding the application, Page 451 U. S. 104 the city's Traffic Engineering Department noted that much of the traffic through the subdivision could be eliminated by closing West Drive at Jackson Ave. Trial Exhibit 14. Thereafter, on July 9, 1973, members of the Hein Park Civic Association filed with the Memphis and Shelby County Planning Commission a formal "Application to Close Streets or Alleys" seeking permission to close West Drive for 25 feet south of Jackson Ave. See Trial Exhibit 13, App. 135. The application was signed by the two property owners abutting both Jackson Ave. and West Drive and all but one of the other West Drive homeowners on the block immediately south of Jackson Ave. Ibid. [Footnote 4] The stated reasons for the closing were:"(1) Reduce flow of through traffic using subdivision streets.""(2) Increase safety to the many children who live in the subdivision and those who use the subdivision to walk to Snowden Junior High School.""(3) Reduce 'traffic pollution' in a residential area, e.g., noise, litter, interruption of community living."Ibid.After receiving the views of interested municipal departments, the County Planning Commission, on November 1, 1973, recommended that the application be approved with the conditions that the applicants provide either an easement for existing and future utility company facilities or the funds to relocate existing facilities, and that the closure provide clearance for fire department vehicles. Trial Exhibit 4, App. 130. The City Council held a hearing at which both proponents and opponents of the proposal presented their views, and the Council adopted a resolution authorizing the closing Page 451 U. S. 105 subject to the conditions recommended by the Planning Commission. See Trial Exhibit 26. The city reconsidered its action and held additional hearings on later dates, but never rescinded its resolution. [Footnote 5] See Trial Exhibits 27-30, 41.C. LitigationIn a complaint filed against the city and various officials in the United States District Court for the Western District of Tennessee on April 1, 1974, three individuals and two civic associations, suing on behalf of a class of residents north of Jackson Ave. and west of Springdale St., alleged that the closing was unconstitutional and prayed for an injunction requiring the city to keep West Drive open for through traffic. [Footnote 6] The District Court granted a motion to dismiss, holding that the complaint, as amended, failed to allege any injury to the plaintiffs' own property or any disparate racial effect, [Footnote 7] and Page 451 U. S. 106 that they had no standing as affected property owners to raise procedural objections to the city's action. [Footnote 8]The United States Court of Appeals for the Sixth Circuit reversed. The court first noted that"a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief."535 F.2d 976, 978. The court concluded that respondents' complaint, fairly construed, alleged that the city had conferred certain benefits -- "to-wit, the privacy and quiet of an exclusive dead-end street" -- on white residents that it refused to confer on similarly situated black residents. Ibid. Accordingly, the court held that, if respondents could prove that city officials conferred the benefit of a closed street on West Drive residents "because of their color," respondents would have a valid claim under either 42 U.S.C. § 1982 or § 1983. 535 F.2d at 979. [Footnote 9]Following the remand, the case was transferred to Judge McRae for trial. Respondents amended their pleadings and, in pretrial discovery, reviewed all street closings in Memphis during the prior 10-year period, as well as the entire record Page 451 U. S. 107 concerning the closing of West Drive. An elaborate pretrial order entered on February 9, 1978, identified three contested issues of fact:"(a) Whether the defendants, by closing West Drive, have conferred certain benefits on white residents of West Drive that they have refused to confer on similarly situated black neighborhoods because of their color.""(b) Whether a discriminatory purpose was a motivating factor in the decision of the City Council to close West Drive.""(c) Whether the defendants and their agents complied with the normal procedural sequence in processing the application to close a portion of West Drive. If not, the extent to which they failed to comply."App. 87.After a full trial, Judge McRae filed a detailed memorandum decision in which he found against the respondents on each of the three contested issues of fact. He specifically concluded that the action of the City Council closing West Drive "did not create a benefit for white citizens which has been denied black citizens"; [Footnote 10] that racially discriminatory intent or purpose had not been proved; [Footnote 11] and that the city Page 451 U. S. 108 had not departed significantly from normal procedures in authorizing the closing. [Footnote 12] Accordingly, the District Court entered judgment for the city.The Court of Appeals did not reject any of the District Court's findings of fact. The Court of Appeals did hold, however, that Judge McRae had erred by limiting his focus to the issue of whether the city had granted a street closing application made by whites, while denying comparable benefits to blacks. 610 F.2d at 400-401. Although the Court of Appeals recognized that the reasoning of its earlier opinion could have induced such a narrow focus, and that the record supported Judge McRae's findings on this issue, the court held that the respondents need not show that the city had denied street-closing applications submitted by black neighborhoods to show a violation of § 1982. 610 F.2d at 400-402. Page 451 U. S. 109 Rather, the court held that respondents could demonstrate that this particular street closing was a "badge of slavery" under § 1982 and the Thirteenth Amendment without reference to the equal treatment issue. [Footnote 13]The Court of Appeals recognized that a street closing may be a legitimate and effective means of preserving the residential character of a neighborhood and protecting it from the problems caused by excessive traffic. 610 F.2d at 402. The Court of Appeals concluded, however, that relief under § 1982 was required here by the facts: (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a "barrier was to be erected precisely at the point of separation of these neighborhoods, and would undoubtedly have the effect of limiting contact between them"; (3) that the closing was not part of a city-wide plan, but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be undesirable"'; and (4) that there was evidence of "an economic depreciation in the property values in the predominantly black residential area." [Footnote 14] Before addressing the legal issues, we consider the Page 451 U. S. 110 extent to which each of these conclusions is supported by the record and the District Court's findings.D. The EvidenceThe first of the four factual predicates for the Court of Appeals' holding relates to the effect of the closing on black residents, and is squarely rooted in the District Court's findings. Judge McRae expressly found that the City Council action "will have disproportionate impact on certain black citizens." App. 161. He described the traffic that will be diverted by the closing as "overwhelming black," ibid., and noted that the white residents of West Drive will have less inconvenience. [Footnote 15] We must note, however, that, although neither Judge McRae nor the Court of Appeals focused on the extent of the inconvenience to residents living north of Jackson Ave., the record makes it clear that such inconvenience will be minimal. A motorist southbound on Springdale St. could continue south on West Drive for only a half mile before the end of West Drive at Overton Park would necessitate Page 451 U. S. 111 a turn. [Footnote 16] Thus, unless the motorist is going to Overton Park, the only effect of the street closing for traffic proceeding south will be to require a turn sooner, without lengthening the entire trip or requiring any more turns. [Footnote 17] Moreover, even the motorist going to Overton Park had to make a turn from West Drive and a short drive down North Parkway to reach the entrance to the park. The entire trip from Springdale St. to the park will be slightly longer with West Drive closed, but it will not be significantly less convenient. [Footnote 18] Thus, although it is correct that the motorists who Page 451 U. S. 112 will be inconvenienced by the closing are primarily black, the extent of the inconvenience is not great.As for the Court of Appeals' second point, the court attached greater significance to the closing as a "barrier" between two neighborhoods than appears warranted by the record. The physical barrier is a curb that will not impede the passage of municipal vehicles. [Footnote 19] Moreover, because only one of the several streets entering Hein Park is closed to vehicular traffic, the other streets will provide ample access to the residences in Hein Park. [Footnote 20] The diversion of through traffic around the Hein Park residential area affects the diverted motorists, but does not support the suggestion that such diversion will limit the social or commercial contact between residents of neighboring communities. [Footnote 21] Page 451 U. S. 113The Court of Appeals' reference to protecting the neighborhood from "undesirable" outside influences may be read Page 451 U. S. 114 as suggesting that the court viewed the closure as motivated by the racial attitude of the residents of Hein Park. The District Court's findings do not support that view of the record. Judge McRae expressly discounted the racial composition of the traffic on West Drive in evaluating its undesirable character; he noted that"excessive traffic in any residential neighborhood has public welfare factors such as safety, noise, and litter, regardless of the race of the traffic and the neighborhood."App. 161. The transcript of the City Council hearings indicates that the residents of West Drive perceived the traffic to be a problem because of the number and speed of the cars traveling down West Drive. [Footnote 22] Even if the statements of the residents of West Drive are discounted as self-serving, there is no evidence that the closing was motivated by any racially exclusionary desire. [Footnote 23] The City Council members who favored the closing expressed concerns similar to those of the West Drive residents. [Footnote 24] Those who Page 451 U. S. 115 opposed the resolution did so because they believed that a less drastic response to the traffic problems would be adequate and that the closing would create a dangerous precedent. [Footnote 25] The one witness at trial who testified that "someone" soliciting signatures for a petition favoring the closure had described the traffic on West Drive as "undesirable traffic," stated that the solicitor mentioned excess traffic and danger to children as reasons for signing. [Footnote 26] Unlike the Court of Appeals, Page 451 U. S. 116 we therefore believe that the "undesirable" character of the traffic flow must be viewed as a factor supporting, rather than undermining, the validity of the closure decision. To the extent that the Court of Appeals' opinion can be read as making a finding of discriminatory intent, the record requires us to reject that finding in favor of the District Court's contrary conclusion. Judge McRae expressly found that the respondents had not proved that the City Council had acted with discriminatory intent. App. 161. [Footnote 27] Page 451 U. S. 117Finally, the Court of Appeals was not justified in inferring that the closure would cause "an economic depreciation in the property values in the predominantly black residential area. . . ." 610 F.2d at 404. The only expert testimony credited by the District Court on that issue was provided by a real estate broker called by the plaintiffs. [Footnote 28] His expert opinion, as summarized by the District Court, was that "there would not be a decrease in value experienced by property owners located to the north of West Drive because of the closure." App. 155. After the witness had expressed that opinion, he admittedly speculated that some property owners to the north might be envious of the better housing that they could not afford, and therefore might be less attentive to the upkeep of their own property, which, in turn, "could have a detrimental effect on the property values in the future." [Footnote 29] Page 451 U. S. 118 In our opinion, the District Court correctly refused to find an adverse impact on black property values based on that speculation. [Footnote 30] Page 451 U. S. 119In summary, then, the critical facts established by the record are these: the city's decision to close West Drive was motivated by its interest in protecting the safety and tranquility of a residential neighborhood. The procedures followed in making the decision were fair, and were not affected by any racial or other impermissible factors. The city has conferred a benefit on certain white property owners, but there is no reason to believe that it would refuse to confer a comparable benefit on black property owners. The closing has not affected the value of property owned by black citizens, but it has caused some slight inconvenience to black motorists.IIUnder the Court's recent decisions in Washington v. Davis, 426 U. S. 229, and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, the absence of proof of discriminatory intent forecloses any claim that the official action challenged in this case violates the Equal Protection Clause of the Fourteenth Amendment. Petitioners ask us to hold that respondents' claims under § 1982 and the Thirteenth Amendment are likewise barred by the absence of proof of discriminatory purpose. We note initially that the coverage of both Page 451 U. S. 120 § 1982 and the Thirteenth Amendment is significantly different from the coverage of the Fourteenth Amendment. The prohibitions of the latter apply only to official action, or, as implemented by 42 U.S.C. § 1983 (1976 ed., Supp. III), to action taken under color of state law. We have squarely decided, however, that § 1982 is directly applicable to private parties, Jones v. Alfred H. Mayer Co., 392 U. S. 409; cf. Runyon v. McCrary, 427 U. S. 160, 427 U. S. 170-174; and it has long been settled that 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. Thus, although respondents challenge official action in this case, the provisions of the law on which the challenge is based cover certain private action, as well. Rather than confront prematurely the rather general question whether either § 1982 or the Thirteenth Amendment requires proof of a specific unlawful purpose, we first consider the extent to which either provision applies at all to this street closing case. We of course deal first with the statutory question.IIISection 1982 provides:"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."To effectuate the remedial purposes of the statute, the Court has broadly construed this language to protect not merely the enforceability of property interests acquired by black citizens, but also their right to acquire and use property on an equal basis with white citizens. Thus, in Hurd v. Hodge, 334 U. S. 24, the Court refused to permit enforcement of private covenants imposing racial restrictions on the sale of property even though the legal rights of blacks Page 451 U. S. 121 to purchase or to sell other property were unimpaired. [Footnote 31] In Jones, supra, we held that § 1982 "must encompass every racially motivated refusal to sell or rent." 392 U.S. at 392 U. S. 421-422. [Footnote 32] In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, we interpreted the term "lease" in § 1982 to include an assignable membership share in recreational facilities. [Footnote 33] In Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. Page 451 U. S. 122 431, we extended that holding to cover a preference to purchase a nontransferable swim club membership. [Footnote 34] Although these cases broadly defined the property rights protected by § 1982, our cases, like the statutory language itself, all concerned the right of black persons to hold and acquire property on an equal basis with white persons and the right of blacks not to have property interests impaired because of their race. [Footnote 35] Page 451 U. S. 123Therefore, as applied to this case, the threshold inquiry under 1982 must focus on the relationship between the street closing and the property interests of the respondents. As the Court of Appeals correctly noted in its first opinion, the statute would support a challenge to municipal action benefiting white property owners that would be refused to similarly situated black property owners. For official action of that kind would prevent blacks from exercising the same property rights as whites. But respondents' evidence failed to support this legal theory. Alternatively, as the Court of Appeals held in its second opinion, the statute might be violated by official action that depreciated the value of property owned by black citizens. But this record discloses no effect on the value of property owned by any member of the respondent class. Finally, the statute might be violated if the street closing severely restricted access to black homes, because blacks would then be hampered in the use of their property. Again, the record discloses no such restriction. [Footnote 36] Page 451 U. S. 124The injury to respondents established by the record is the requirement that one public street rather than another must be used for certain trips within the city. We need not assess the magnitude of that injury to conclude that it does not involve any impairment to the kind of property interests that we have identified as being within the reach of § 1982. We therefore must consider whether the street closing violated respondents' constitutional rights.IVIn relevant part, the Thirteenth Amendment provides:"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."In this case, respondents challenge the conferring of a benefit upon white citizens by a measure that places a burden on black citizens as an unconstitutional "badge of slavery." Relying on Justice Black's opinion for the Court in Palmer v. Thompson, 403 U. S. 217, the city argues that, in the absence of a violation of specific enabling legislation enacted pursuant to § 2 of the Thirteenth Amendment, any judicial characterization of an isolated street closing as a badge of slavery would constitute the usurpation of "a law-making power far beyond the imagination of the amendment's authors." Id. at 403 U. S. 227. [Footnote 37]Pursuant to the authority created by § 2 of the Thirteenth Page 451 U. S. 125 Amendment, Congress has enacted legislation to abolish both the conditions of involuntary servitude and the "badges and incidents of slavery." [Footnote 38] The exercise of that authority is not inconsistent with the view that the Amendment has self-executing force. As the Court noted in Jones v. Alfred H. Mayer Co., 392 U.S. at 392 U. S. 439:"'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. [Footnote 39]"In Jones, the Court left open the question whether § 1 of the Amendment, by its own terms, did anything more than abolish Page 451 U. S. 126 slavery. [Footnote 40] It is also appropriate today to leave that question open, because a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not, in any event, be fairly characterized as a badge or incident of slavery.We begin our examination of respondents' Thirteenth Amendment argument by reiterating the conclusion that the record discloses no racially discriminatory motive on the part of the City Council. [Footnote 41] Instead, the record demonstrates that the interests that did motivate the Council are legitimate. Proper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests: the motorist's interest in unhindered access to his destination, the city's interest in the efficient provision of municipal services, the commercial interest in adequate parking, the residents' interest in relative quiet, and the pedestrians' interest in safety. Local governments necessarily exercise wide discretion in making the policy decisions that accommodate these interests.In this case, the city favored the interests of safety and tranquility. As a matter of constitutional law, a city's power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events. The decision to reduce the flow of traffic on West Drive was motivated, in part, by Page 451 U. S. 127 an interest in the safety of children walking to school. [Footnote 42] That interest is equally legitimate whether it provides support for an arguably unnecessary preventive measure or for a community's reaction to a tragic accident that adequate planning might have prevented. See Thomas Cusack Co. v. Chicago, 242 U. S. 526.The residential interest in comparative tranquility is also unquestionably legitimate. That interest provides support for zoning regulations, designed to protect a "quiet place where yards are wide, people few, and motor vehicles restricted. . . ." Village of Belle Terre v. Boraas, 416 U. S. 1, 416 U. S. 9; Arlington County Board v. Richards, 434 U. S. 5, and for the accepted view that a man's home is his castle. The interest in privacy has the same dignity in a densely populated apartment complex, cf. Payton v. New York, 445 U. S. 573, or in an affluent neighborhood of single-family homes. [Footnote 43] In either context, the protection of the individual interest may involve the imposition of some burdens on the general public.Whether the individual privacy interests of the residents of Hein Park, coupled with the interest in safety, should be considered strong enough to overcome the more general interest in the use of West Drive as a thoroughfare is the type of question that a multitude of local governments must resolve every day. Because there is no basis for concluding that the interests favored by the city in its decision were contrived or pretextual, the District Court correctly concluded that it had no authority to review the wisdom of the city's policy decision. See Railway Express Agency, Inc. v. New York, 336 U. S. 106, 336 U. S. 109. Page 451 U. S. 128The interests motivating the city's action are thus sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on the liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. The argument that the closing violates the Amendment must therefore rest not on the actual consequences of the closing, but rather on the symbolic significance of the fact that most of the drivers who will be inconvenienced by the action are black.But the inconvenience of the drivers is a function of where they live and where they regularly drive -- not a function of their race; the hazards and the inconvenience that the closing is intended to minimize are a function of the number of vehicles involved, not the race of their drivers or of the local residents. Almost any traffic regulation -- whether it be a temporary detour during construction, a speed limit, a one-way street, or a no-parking sign -- may have a differential impact on residents of adjacent or nearby neighborhoods. Because urban neighborhoods are so frequently characterized by a common ethnic or racial heritage, a regulation's adverse impact on a particular neighborhood will often have a disparate effect on an identifiable ethnic or racial group. To regard an inevitable consequence of that kind as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom. Proper respect for the dignity of the residents of any neighborhood requires that they accept the same burdens as well as the same benefits of citizenship regardless of their racial or ethnic origin.This case does not disclose a violation of any of the enabling legislation enacted by Congress pursuant to § 2 of the Thirteenth Amendment. To decide the narrow constitutional question presented by this record, we need not speculate about the sort of impact on a racial group that might be Page 451 U. S. 129 prohibited by the Amendment itself. We merely hold that the impact of the closing of West Drive on nonresidents of Hein Park is a routine burden of citizenship; it does not reflect a violation of the Thirteenth Amendment.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtCity of Memphis v. Greene, 451 U.S. 100 (1981)City of Memphis v. GreeneNo. 79-1176Argued December 3, 1980Decided April 20, 1981451 U.S. 100SyllabusThe city of Memphis decided to close the north end of a street (West Drive) that traverses a white residential community (Hein Park), the area to the north of which is predominantly black. West Drive is one of three streets that enter Hein Park from the north. The stated reasons for the closing were to reduce the flow of traffic using Hein Park streets, to increase safety to children who live in Hein Park or use it to walk to school, and to reduce "traffic pollution" in the residential area. Respondents, residents of the predominantly black area, and two civic associations brought a class action in Federal District Court against the city and various officials, alleging that the street closing violated 42 U.S.C. § 1982 -- which entitles all citizens to "have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property" -- and also violated the Thirteenth Amendment, as constituting "a badge of slavery." Ultimately, the District Court entered judgment for the defendants, holding that the street closing did not create a benefit for white citizens which was denied black citizens, that racially discriminatory intent or purpose had not been proved, and that the city had not departed significantly from normal procedures in authorizing the closing. The Court of Appeals reversed and remanded, holding that the street closing was invalid because it adversely affected respondents' ability to hold and enjoy their property. The court concluded that relief under § 1982 was required by the facts (1) that the closing would benefit a white neighborhood and adversely affect blacks; (2) that a barrier was to be erected at the point of separation of the white and black neighborhoods and would have the effect of limiting contact between them; (3) that the closing was not part of a city-wide plan, but rather was a "unique step to protect one neighborhood from outside influences which the residents considered to be undesirable"'; and (4) that there was evidence of economic depreciation in the property values in the predominantly black area.Held:1. The record and the District Court's findings do not support the Court of Appeals' conclusions. Pp. 451 U. S. 110-119. Page 451 U. S. 1012. The street closing did not violate § 1982. The evidence failed to show that the street closing would prevent blacks from exercising the same property rights as whites, that it depreciated the value of blacks' property, or that it severely restricted access to black homes. Rather, the record discloses that respondents' only injury is the requirement that one street rather than another must be used for certain trips within the city. Such an injury does not involve any impairment to the kind of property interests identified as being within the reach of § 1982. Pp. 451 U. S. 120-124.3. Nor did the street closing violate the Thirteenth Amendment. A review of the justification for the closing demonstrates that its disparate impact on black citizens could not be fairly characterized as a badge or incident of slavery. The record discloses no discriminatory motive on the city's part, but rather that the interests of safety and tranquility that motivated the closing are legitimate. Such interests are sufficient to justify an adverse impact on motorists who are somewhat inconvenienced by the street closing. That inconvenience cannot be equated to an actual restraint on liberty of black citizens that is in any sense comparable to the odious practice the Thirteenth Amendment was designed to eradicate. Pp. 451 U. S. 124-129.610 F.2d 395, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 451 U. S. 129. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 451 U. S. 135. Page 451 U. S. 102

1979_79-565

MR. JUSTICE POWELL delivered the opinion of the Court.This case presents the question whether a regulation of the Public Service Commission of the State of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility.IIn December, 1973, the Commission, appellee here, ordered electric utilities in New York State to cease all advertising that "promot[es] the use of electricity." App. to Juris.Statement Page 447 U. S. 559 31a. The order was based on the Commission's finding that "the interconnected utility system in New York State does not have sufficient fuel stocks or sources of supply to continue furnishing all customer demands for the 1973-1974 winter." Id. at 26a.Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds. App. A10. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977.The Policy Statement divided advertising expenses"into two broad categories: promotional -- advertising intended to stimulate the purchase of utility services -- and institutional and informational, a broad category inclusive of all advertising not clearly intended to promote sales. [Footnote 1]"1 App. to Juris.Statement 35a. The Commission declared all promotional advertising contrary to the national policy of conserving energy. It acknowledged that the ban is not a perfect vehicle for conserving energy. For example, the Commission's order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in "off-peak" consumption, the ban limits the "beneficial side effects" of such growth in terms of more efficient use of existing powerplants. Id. at 37a. And since oil dealers are not under the Commission's jurisdiction and Page 447 U. S. 560 thus remain free to advertise, it was recognized that the ban can achieve only "piecemeal conservationism." Still, the Commission adopted the restriction because it was deemed likely to "result in some dampening of unnecessary growth" in energy consumption. Ibid.The Commission's order explicitly permitted "informational" advertising designed to encourage "shifts of consumption" from peak demand times to periods of low electricity demand. Ibid. (emphasis in original). Informational advertising would not seek to increase aggregate consumption, but would invite a leveling of demand throughout any given 24-hour period. The agency offered to review "specific proposals by the companies for specifically described [advertising] programs that meet these criteria." Id. at 38a.When it rejected requests for rehearing on the Policy Statement, the Commission supplemented its rationale for the advertising ban. The agency observed that additional electricity probably would be more expensive to produce than existing output. Because electricity rates in New York were not then based on marginal cost, [Footnote 2] the Commission feared that additional power would be priced below the actual cost of generation. The additional electricity would be subsidized by all consumers through generally higher rates. Id. at 57a-58a. The state agency also thought that promotional advertising would give "misleading signals" to the public by appearing to encourage energy consumption at a time when conservation is needed. Id. at 59a.Appellant challenged the order in state court, arguing that the Commission had restrained commercial speech in violation of the First and Fourteenth Amendments. [Footnote 3] The Commission's Page 447 U. S. 561 order was upheld by the trial court and at the intermediate appellate level. [Footnote 4] The New York Court of Appeals affirmed. It found little value to advertising in "the noncompetitive market in which electric corporations operate." Consolidated Edison Co. v. Public Service Comm'n, 47 N.Y.2d 94, 110, 390 N.E.2d 749, 757 (1979). Since consumers "have no choice regarding the source of their electric power," the court denied that "promotional advertising of electricity might contribute to society's interest in informed and reliable' economic decisionmaking." Ibid. The court also observed that, by encouraging consumption, promotional advertising would only exacerbate the current energy situation. Id. at 110, 390 N.E.2d at 758. The court concluded that the governmental interest in the prohibition outweighed the limited constitutional value of the commercial speech at issue. We noted probable jurisdiction, 111 U.S. 962 (1979), and now reverse.IIThe Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 425 U. S. 762 (1976); Bates v. State Bar of Arizona, 433 U. S. 350, 433 U. S. 363-364 (1977); Friedman v. Rogers, 440 U. S. 1, 440 U. S. 11 (1979). The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U.S. at 425 U. S. 761-762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible Page 447 U. S. 562 dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech."[P]eople will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . ."Id. at 425 U. S. 770; see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 431 U. S. 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra at 433 U. S. 374.Nevertheless, our decisions have recognized"the 'common sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech."Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 436 U. S. 455-456 (1978); see Bates v. State Bar of Arizona, supra at 433 U. S. 381; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1, 38-39 (1979). [Footnote 5] The Page 447 U. S. 563 Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S. at 436 U. S. 456, 436 U. S. 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra at 440 U. S. 13, 440 U. S. 15-16; Ohralik v. Ohio State Bar Assn., supra at 436 U. S. 464-465, or Page 447 U. S. 564 commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U. S. 376, 413 U. S. 388 (1973). [Footnote 6]If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. T he Court noted in Virginia Pharmacy Board that "[t]he advertising ban does not directly affect professional standards one way or the other." 425 U.S. at 425 U. S. 769. In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. Page 447 U. S. 565 "Restraints on advertising . . . are an ineffective way of deterring shoddy work." 433 U.S. at 433 U. S. 378. [Footnote 7]The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus, 436 U. S. 412, 436 U. S. 438 (1978). [Footnote 8] The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra at 435 U. S. 794-795, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates, the Court explicitly did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like, might be required" in promotional materials. 433 U.S. at 433 U. S. 384. See Virginia Pharmacy Board, supra at 425 U. S. 773. And in Carey v. Population Services International, 431 U. S. 678, 431 U. S. 701-702 (1977), we held that the State's "arguments . . . do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that Page 447 U. S. 566 the State could implement more carefully drawn restrictions. See id. at 431 U. S. 712 (POWELL, J., concurring in part and in judgment); id. at 431 U. S. 716-717 (STEVENS, J., concurring in part and in judgment). [Footnote 9]In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.IIIWe now apply this four-step analysis for commercial speech to the Commission's arguments in support of its ban on promotional advertising.AThe Commission does not claim that the expression at issue either is inaccurate or relates to unlawful activity. Yet the New York Court of Appeals questioned whether Central Hudson's advertising is protected commercial speech. Because appellant holds a monopoly over the sale of electricity in its service area, the state court suggested that the Commission's order restricts no commercial speech of any worth. The court stated that advertising in a "noncompetitive market" Page 447 U. S. 567 could not improve the decisionmaking of consumers. 47 N.Y.2d at 110, 390 N.E.2d at 757. The court saw no constitutional problem with barring commercial speech that it viewed as conveying little useful information.This reasoning falls short of establishing that appellant's advertising is not commercial speech protected by the First Amendment. Monopoly over the supply of a product provides no protection from competition with substitutes for that product. Electric utilities compete with suppliers of fuel oil and natural gas in several markets, such as those for home heating and industrial power. This Court noted the existence of interfuel competition 45 years ago, see West Ohio as Co. v. Public Utilities Comm'n, 294 U. S. 63, 294 U. S. 72 (1935). Each energy source continues to offer peculiar advantages and disadvantages that may influence consumer choice. For consumers in those competitive markets, advertising by utilities is just as valuable as advertising by unregulated firms. [Footnote 10]Even in monopoly markets, the suppression of advertising reduces the information available for consumer decisions, and thereby defeats the purpose of the First Amendment. The New York court's argument appears to assume that the providers of a monopoly service or product are willing to pay for wholly ineffective advertising. Most businesses -- even regulated monopolies -- are unlikely to underwrite promotional advertising that is of no interest or use to consumers. Indeed, a monopoly enterprise legitimately may wish to inform the public that it has developed new services or terms of doing business. A consumer may need information to aid his decision whether or not to use the monopoly service at all, or how much of the service he should purchase. In the absence of factors that would distort the decision to advertise, we Page 447 U. S. 568 may assume that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising. [Footnote 11] Since no such extraordinary conditions have been identified in this case, appellant's monopoly position does not alter the First Amendment's protection for its commercial speech.BThe Commission offers two state interests as justifications for the ban on promotional advertising. The first concerns energy conservation. Any increase in demand for electricity -- during peak or off-peak periods -- means greater consumption of energy. The Commission argues, and the New York court agreed, that the State's interest in conserving energy is sufficient to support suppression of advertising designed to increase consumption of electricity. In view of our country's dependence on energy resources beyond our control, no one can doubt the importance of energy conservation. Plainly, therefore, the state interest asserted is substantial.The Commission also argues that promotional advertising will aggravate inequities caused by the failure to base the utilities' rates on marginal cost. The utilities argued to the Commission that, if they could promote the use of electricity in periods of low demand, they would improve their utilization of generating capacity. The Commission responded that promotion of off-peak consumption also would increase consumption during peak periods. If peak demand were to rise, the absence of marginal cost rates would mean that the rates charged for the additional power would not reflect the true costs of expanding production. Instead, the extra costs would Page 447 U. S. 569 be borne by all consumers through higher overall rates. Without promotional advertising, the Commission stated, this inequitable turn of events would be less likely to occur. The choice among rate structures involves difficult and important questions of economic supply and distributional fairness. [Footnote 12] The State's concern that rates be fair and efficient represents a clear and substantial governmental interest.CNext, we focus on the relationship between the State's interests and the advertising ban. Under this criterion, the Commission's laudable concern over the equity and efficiency of appellant's rates does not provide a constitutionally adequate reason for restricting protected speech. The link between the advertising prohibition and appellant's rate structure is, at most, tenuous. The impact of promotional advertising on the equity of appellant's rates is highly speculative. Advertising to increase off-peak usage would have to increase peak usage, while other factors that directly affect the fairness and efficiency of appellant's rates remained constant. Such conditional and remote eventualities simply cannot justify silencing appellant's promotional advertising.In contrast, the State's interest in energy conservation is directly advanced by the Commission order at issue here. There is an immediate connection between advertising and demand for electricity. Central Hudson would not contest the advertising ban unless it believed that promotion would increase its sales. Thus, we find a direct link between the state interest in conservation and the Commission's order.DWe come finally to the critical inquiry in this case: whether the Commission's complete suppression of speech ordinarily protected by the First Amendment is no more extensive than Page 447 U. S. 570 necessary to further the State's interest in energy conservation. The Commission's order reaches all promotional advertising, regardless of the impact of the touted service on overall energy use. But the energy conservation rationale, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests.Appellant insists that, but for the ban, it would advertise products and services that use energy efficiently. These include the "heat pump," which both parties acknowledge to be a major improvement in electric heating, and the use of electric heat as a "backup" to solar and other heat sources. Although the Commission has questioned the efficiency of electric heating before this Court, neither the Commission's Policy Statement nor its order denying rehearing made findings on this issue. In the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances.The Commission's order prevents appellant from promoting electric services that would reduce energy use by diverting demand from less efficient sources, or that would consume roughly the same amount of energy as do alternative sources. In neither situation would the utility's advertising endanger conservation or mislead the public. To the extent that the Commission's order suppresses speech that in no way impairs the State's interest in energy conservation, the Commission's order violates the First and Fourteenth Amendments, and must be invalidated. See First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978).The Commission also has not demonstrated that its interest in conservation cannot be protected adequately by more limited regulation of appellant's commercial expression. To further Page 447 U. S. 571 its policy of conservation, the Commission could attempt to restrict the format and content of Central Hudson's advertising. It might, for example, require that the advertisements include information about the relative efficiency and expense of the offered service, both under current conditions and for the foreseeable future. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). [Footnote 13] In the absence of a showing that more limited speech regulation would be ineffective, we cannot approve the complete suppression of Central Hudson's advertising. [Footnote 14]IVOur decision today in no way disparages the national interest in energy conservation. We accept without reservation the argument that conservation, as well as the development of alternative energy sources, is an imperative national goal. Administrative bodies empowered to regulate electric utilities have the authority -- and indeed the duty -- to take appropriate action to further this goal. When, however, such action involves Page 447 U. S. 572 the suppression of speech, the First and Fourteenth Amendments require that the restriction be no more extensive than is necessary to serve the state interest. In this case, the record before us fails to show that the total ban on promotional advertising meets this requirement. [Footnote 15]Accordingly, the judgment of the New York Court of Appeals isReversed

U.S. Supreme CourtCentral Hudson Gas & Elec. v. Public Svc. Comm'n, 447 U.S. 557 (1980)Central Hudson Gas & Electric Corp. v.Public Service Commission of New YorkNo. 79-565Argued March 17, 1980Decided June 20, 1980447 U.S. 557SyllabusHeld: A regulation of appellee New York Public Service Commission which completely bans an electric utility from advertising to promote the use of electricity violates the First and Fourteenth Amendments. Pp. 447 U. S. 561-572.(a) Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Pp. 447 U. S. 561-566.(b) In this case, it is not claimed that the expression at issue is either inaccurate or relates to unlawful activity. Nor is appellant electrical utility's promotional advertising unprotected commercial speech merely because appellant holds a monopoly over the sale of electricity in its service area. Since monopoly over the supply of a product provides no protection from competition with substitutes for that product, advertising by utilities is just as valuable to consumers as advertising by unregulated firms, and there is no indication that appellant's decision to advertise was not based on the belief that consumers were interested in the advertising. Pp. 447 U. S. 566-568.(c) The State's interest in energy conservation is clearly substantial, and is directly advanced by appellee's regulations. The State's further interest in preventing inequities in appellant's rates -- based on the assertion that successful promotion of consumption in "off-peak" periods would create extra costs that would, because of appellant's rate structure, be borne by all consumers through higher overall rates -- is also substantial. The latter interest does not, however, provide a constitutionally adequate reason for restricting protected speech because the link between the advertising prohibition and appellant's rate structure is, at most, tenuous. Pp. 447 U. S. 568-569. Page 447 U. S. 558(d) Appellee's regulation, which reaches all promotional advertising, regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the State's interest in energy conservation which, as important as it is, cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use. In addition, no showing has been made that a more limited restriction on the content of promotional advertising would not serve adequately the State's interests. Pp. 447 U. S. 569-571.47 N.Y.2d 94, 390 N.E.2d 749, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 447 U. S. 572. BLACKMUN, J., post, p. 447 U. S. 573, and STEVENS, J., post, p. 447 U. S. 579, filed opinions concurring in the judgment, in which BRENNAN, J., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 447 U. S. 583.

1970_2

MR. JUSTICE BLACK delivered the opinion of the Court.Appellee, John Harris, Jr., was indicted in a California state court, charged with violation of the California Penal Code §§ 11400 and 11401, known as the California Criminal Syndicalism Act, set out below. [Footnote 1] He then filed Page 401 U. S. 39 a complaint in the Federal District Court asking that court to enjoin the appellant, Younger, the District Attorney of Los Angeles County, from prosecuting him, and alleging that the prosecution and even the presence of the Act inhibited him in the exercise of his rights of free speech and press, rights guaranteed him by the First and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch intervened as plaintiffs in the suit, claiming that the prosecution of Harris would inhibit them as members of the Progressive Labor Party from peacefully advocating the program of their party, which was to replace capitalism with socialism and to abolish the profit system of production in this country. Appellee Farrell Broslawsky, an instructor in history at Los Angeles Valley College, also intervened, claiming that the prosecution of Harris made him uncertain as to whether he could Page 401 U. S. 40 teach about the doctrines of Karl Marx or read from the Communist Manifesto as part of his classwork. All claimed that, unless the United States court restrained the state prosecution of Harris, each would suffer immediate and irreparable injury. A three-judge Federal District Court, convened pursuant to 28 U.S.C. § 2284, held that it had jurisdiction and power to restrain the District Attorney from prosecuting, held that the State's Criminal Syndicalism Act was void for vagueness and overbreadth in violation of the First and Fourteenth Amendments, and accordingly restrained the District Attorney from "further prosecution of the currently pending action against plaintiff Harris for alleged violation of the Act." 281 F. Supp. 507, 517 (1968).The case is before us on appeal by the State's District Attorney Younger, pursuant to 28 U.S.C. § 1253. In his notice of appeal and his jurisdictional statement, appellant presented two questions: (1) whether the decision of this Court in Whitney v. California, 274 U. S. 357, holding California's law constitutional in 1927 was binding on the District Court and (2) whether the State's law is constitutional on its face. In this Court, the brief for the State of California, filed at our request, also argues that only Harris, who was indicted, has standing to challenge the State's law, and that issuance of the injunction was a violation of a longstanding judicial policy and of 28 U.S.C. § 2283, which 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."See, e.g., Atlantic Coast Line R. Co. v. Engineers, 398 U. S. 281, 398 U. S. 285-286 (1970). Without regard to the questions Page 401 U. S. 41 raised about Whitney v. California, supra, since overruled by Brandenburg v. Ohio, 395 U. S. 444 (1969), or the constitutionality of the state law, we have concluded that the judgment of the District Court, enjoining appellant Younger from prosecuting under these California statutes, must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. [Footnote 2] We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.IAppellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its prosecutor. But none of the other parties plaintiff in the District Court, Dan, Hirsch, or Broslawsky, has such a controversy. None has been indicted, arrested, or even threatened by the prosecutor. About these three, the three-judge court said:"Plaintiffs Dan and Hirsch allege that they are members of the Progressive Labor Party, which advocates change in industrial ownership and political change, and that they feel inhibited in advocating Page 401 U. S. 42 the program of their political party through peaceful, nonviolent means, because of the presence of the Act 'on the books,' and because of the pending criminal prosecution against Harris. Plaintiff Broslawsky is a history instructor, and he alleges that he is uncertain as to whether his normal practice of teaching his students about the doctrines of Karl Marx and reading from the Communist Manifesto and other revolutionary works may subject him to prosecution for violation of the Act."281 F. Supp. at 509. Whatever right Harris, who is being prosecuted under the state syndicalism law, may have, Dan, Hirsch, and Broslawsky cannot share it with him. If these three had alleged that they would be prosecuted for the conduct they planned to engage in, and if the District Court had found this allegation to be true -- either on the admission of the State's district attorney or on any other evidence -- then a genuine controversy might be said to exist. But here appellees Dan, Hirsch, and Broslawsky do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible. They claim the right to bring this suit solely because, in the language of their complaint, they "feel inhibited." We do not think this allegation, even if true, is sufficient to bring the equitable jurisdiction of the federal courts into play to enjoin a pending state prosecution. A federal lawsuit to stop a prosecution in a state court is a serious matter. And persons having no fears of state prosecution except those that are imaginary or speculative are not to be accepted as appropriate plaintiffs in such cases. See Golden v. Zwickler, 394 U. S. 103 (1969). Since Harris is actually being prosecuted under the challenged laws, however, we proceed with him as a proper party. Page 401 U. S. 43IISince the beginning of this country's history, Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts. In 1793, an Act unconditionally provided: "[N]or shall a writ of injunction be granted to stay proceedings in any court of a state. . . ." 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with 28 U.S.C. § 2283, its present-day successor, graphically illustrates how few and minor have been the exceptions granted from the flat, prohibitory language of the old Act. During all this lapse of years from 1793 to 1970, the statutory exceptions to the 1793 congressional enactment have been only three: (1) "except as expressly authorized by Act of Congress"; (2) "where necessary in aid of its jurisdiction"; and (3) "to protect or effectuate its judgments." In addition, a judicial exception to the longstanding policy evidenced by the statute has been made where a person about to be prosecuted in a state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages. See Ex parte Young, 209 U. S. 123 (1908). [Footnote 3]The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified, but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable Page 401 U. S. 44 injury if denied equitable relief. The doctrine may originally have grown out of circumstances peculiar to the English judicial system and not applicable in this country, but its fundamental purpose of restraining equity jurisdiction within narrow limits is equally important under our Constitution in order to prevent erosion of the role of the jury and avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of "comity," that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as "Our Federalism," and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of "Our Federalism." The concept does not mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, "Our Federalism," born in the early struggling days of Page 401 U. S. 45 our Union of States, occupies a highly important place in our Nation's history and its future.This brief discussion should be enough to suggest some of the reasons why it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions. In Fenner v. Boykin, 271 U. S. 240 (1926), suit had been brought in the Federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interstate commerce. The Court, in a unanimous opinion, made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances:"Ex parte Young, 209 U. S. 123, and following cases have established the doctrine that, when absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection."Id. at 271 U. S. 243-244. These principles, made clear in the Fenner case, have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions. See, e.g., 295 U. S. S. 46� Sales Co. v. Dodge, 295 U. S. 89 (1935); Beall v. Missouri Pac. R. Co., 312 U. S. 45 (1941); Watson v. Buck, 313 U. S. 387 (1941); Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette,@ 319 U. S. 157 (1943).In all of these cases, the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that, in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is "both great and immediate." Fenner, supra. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not, by themselves, be considered "irreparable" in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e.g., Ex parte Young, supra, at 209 U. S. 145-147. Thus, in the Buck case, supra, at 313 U. S. 400, we stressed:"Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional.""No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution, even though alleged to be unauthorized, and, hence, unlawful, is not, alone, ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.""Beal v. Missouri Pacific Railroad Corp., 312 U. S. 45, 312 U. S. 49. "Page 401 U. S. 47And, similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:"It does not appear from the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith. . . ."319 U.S. at 319 U. S. 164.This is where the law stood when the Court decided Dombrowski v. Pfister, 380 U. S. 479 (1965), and held that an injunction against the enforcement of certain state criminal statutes could properly issue under the circumstances presented in that case. [Footnote 4] In Dombrowski, Page 401 U. S. 48 unlike many of the earlier cases denying injunctions, the complaint made substantial allegations that:"the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana."380 U.S. at 380 U. S. 482. The appellants in Dombrowski had offered to prove that their offices had been raided and all their files and records seized pursuant to search and arrest warrants that were later summarily vacated by a state judge for lack of probable cause. They also offered to prove that, despite the state court order quashing the warrants and suppressing the evidence seized, the prosecutor was continuing to threaten to initiate new prosecutions of appellants under the same statutes, was holding public hearings at which photostatic copies of the illegally seized documents were being used, and was threatening to use other copies of the illegally seized documents to obtain grand jury indictments against the appellants on charges of violating the same statutes. These circumstances, as viewed by the Court, sufficiently establish the kind of irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention. See, e.g., Beal, supra, at 312 U. S. 50. Indeed, after quoting the Court's statement in Douglas concerning the very restricted circumstances under which an injunction could be justified, the Court in Dombrowski went on to say:"But the allegations in this complaint depict a situation in which defense of the State's criminal Page 401 U. S. 49 prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury."380 U.S. at 380 U. S. 485-486. And the Court made clear that, even under these circumstances, the District Court issuing the injunction would have continuing power to lift it at any time and remit the plaintiffs to the state courts if circumstances warranted. 380 U.S. at 380 U. S. 491, 380 U. S. 402. Similarly, in Cameron v. Johnson, 390 U. S. 611 (1968), a divided Court denied an injunction after finding that the record did not establish the necessary bad faith and harassment; the dissenting Justices themselves stressed the very limited role to be allowed for federal injunctions against state criminal prosecutions and differed with the Court only on the question whether the particular facts of that case were sufficient to show that the prosecution was brought in bad faith.It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present case. Here, a proceeding was already pending in the state court affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution against Harris is brought in bad faith, or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely "that incidental to every criminal proceeding brought lawfully and in good faith," Douglas, supra, and therefore, under the settled doctrine we have already described, he is not entitled to equitable relief "even if such statutes are unconstitutional," Buck, supra. Page 401 U. S. 50The District Court, however, thought that the Dombrowski decision substantially broadened the availability of injunctions against state criminal prosecutions, and that, under that decision, the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found "on its face" to be vague or overly broad, in violation of the First Amendment. We recognize that there are some statements in the Dombrowski opinion .that would seem to support this argument. But, as we have already seen, such statements were unnecessary to the decision of that case, because the Court found that the plaintiffs had alleged a basis for equitable relief under the long-established standards. In addition, we do not regard the reasons adduced to support this position as sufficient to justify such a substantial departure from the established doctrines regarding the availability of injunctive relief. It is undoubtedly true, as the Court stated in Dombrowski, that"[a] criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms."380 U.S. at 380 U. S. 486. But this sort of "chilling effect," as the Court called it, should not, by itself, justify federal intervention. In the first place, the chilling effect cannot be satisfactorily eliminated by federal injunctive relief. In Dombrowski itself, the Court stated that the injunction to be issued there could be lifted if the State obtained an "acceptable limiting construction" from the state courts. The Court then made clear that, once this was done, prosecutions could then be brought for conduct occurring before the narrowing construction was made, and proper convictions could stand so long as the defendants were not deprived of fair warning. 380 U.S. at 380 U. S. 491 n. 7. The kind of relief granted in Dombrowski thus does not effectively eliminate uncertainty as to the coverage of the state Page 401 U. S. 51 statute, and leaves most citizens with virtually the same doubts as before regarding the danger that their conduct might eventually be subjected to criminal sanctions. The chilling effect can, of course, be eliminated by an injunction that would prohibit any prosecution whatever for conduct occurring prior to a satisfactory rewriting of the statute. But the States would then be stripped of all power to prosecute even the socially dangerous and constitutionally unprotected conduct that had been covered by the statute, until a new statute could be passed by the state legislature and approved by the federal courts in potentially lengthy trial and appellate proceedings. Thus, in Dombrowski itself, the Court carefully reaffirmed the principle that, even in the direct prosecution in the State's own courts, a valid narrowing construction can be applied to conduct occurring prior to the date when the narrowing construction was made, in the absence of fair warning problems.Moreover, the existence of a "chilling effect," even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action. Where a statute does not directly abridge free speech, but -- while regulating a subject within the State's power -- tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so. Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967). Just as the incidental "chilling effect" of such statutes does not automatically render them unconstitutional, so the chilling effect that admittedly can result from the very existence of certain laws on the statute books does not, in itself, justify prohibiting the State from carrying out the important Page 401 U. S. 52 and necessary task of enforcing these laws against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.Beyond all this is another, more basic consideration. Procedures for testing the constitutionality of a statute "on its face" in the manner apparently contemplated by Dombrowski, and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is, in the final analysis, derived from its responsibility for resolving concrete disputes brought before the courts for decision; a statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). But this vital responsibility, broad as it is, does not amount to an unlimited power to survey the statute books and pass judgment on laws before the courts are called upon to enforce them. Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation, [Footnote 5] it has been clear that, even when suits of this kind involve a "case or controversy" sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect is rarely, if ever, an appropriate task for the judiciary. Page 401 U. S. 53 The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and, above all, the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, see, e.g., Landry v. Daley, 280 F. Supp. 938 (ND Ill.1968), rev'd sub nom. Boyle v. Landry, post, p. 401 U. S. 77, ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. In light of this fundamental conception of the Framers as to the proper place of the federal courts in the governmental processes of passing and enforcing laws, it can seldom be appropriate for these courts to exercise any such power of prior approval or veto over the legislative process.For these reasons, fundamental not only to our federal system but also to the basic functions of the Judicial Branch of the National Government under our Constitution, we hold that the Dombrowski decision should not be regarded as having upset the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions. We do not think that opinion stands for the proposition that a federal court can properly enjoin enforcement of a statute solely on the basis of a showing that the statute, "on its face," abridges First Amendment rights. There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated:"It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against Page 401 U. S. 54 whomever an effort might be made to apply it."313 U.S. at 313 U. S. 402. Other unusual situations calling for federal intervention might also arise, but there is no point in our attempting now to specify what they might be. It is sufficient for purposes of the present case to hold, as we do, that the possible unconstitutionality of a statute "on its face" does not, in itself, justify an injunction against good faith attempts to enforce it, and that appellee Harris has failed to make any showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. Because our holding rests on the absence of the factors necessary under equitable principles to justify federal intervention, we have no occasion to consider whether 28 U.S.C. § 2283, which prohibits an injunction against state court proceedings "except as expressly authorized by Act of Congress" would, in and of itself, be controlling under the circumstances of this case.The judgment of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtYounger v. Harris, 401 U.S. 37 (1971)Younger v. HarrisNo. 2Argued April 1, 1969Reargued April 29 and November 16, 1970Decided February 23, 1971401 U.S. 37SyllabusAppellee Harris, who had been indicted for violating the California Criminal Syndicalism Act, sued in the Federal District Court to enjoin appellant, the county District Attorney, from prosecuting him, contending that the Act is unconstitutional on its face and inhibits him in exercising his free speech rights. Appellees Dan and Hirsch, claiming that the prosecution of Harris would "inhibit" them from peacefully advocating the program of the political party to which they belonged, and appellee Broslawsky, a college professor, claiming that the prosecution made him "uncertain" as to whether his teaching and reading practices would subject him to prosecution, intervened as plaintiffs. All asserted that they would suffer irreparable injury unless a federal injunction was issued. A three-judge court, relying on Dombrowski v. Pfister, 380 U. S. 479, held the Act void for vagueness and overbreadth, and enjoined Harris' prosecution.Held:1. There is no basis for equitable jurisdiction based on the allegations of appellees other than Harris, who have not been indicted, arrested, or threatened with prosecution, and the normal course of a state criminal prosecution cannot be blocked on the basis of fears of prosecution that are merely speculative. Pp. 401 U. S. 41-42.2. Federal courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate in that (unlike the situation affecting Harris) there is a threat to the plaintiff's federally protected rights that cannot be eliminated by his defense against a single prosecution. The decision in Dombrowski, supra, which involved alleged bad faith harassment and is factually distinguishable from this case, does not substantially broaden the availability of injunctions against state criminal prosecutions. Pp. 401 U. S. 43-54.281 F. Supp. 507, reversed. Page 401 U. S. 38BLACK, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which HARLAN, J., joined, post, p. 401 U. S. 54. BRENNAN, J., filed an opinion concurring in the result, in which WHITE and MARSHALL JJ., joined, post, p. 401 U. S. 56. DOUGLAS, J., filed a dissenting opinion, post, p. 401 U. S. 58.

1967_27

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The Federal Trade Commission, after extensive proceedings, ruled that respondents, the corporate owner of a chain of supermarkets and two of its officers, had unlawfully induced certain suppliers to engage in discriminatory pricing and sales promotional activities prohibited by §§ 2(a) and 2(d) of the Clayton Act, as amended Page 390 U. S. 343 by the Robinson-Patman Act. [Footnote 1] 63 F.T.C. (1963). The Court of Appeals for the Ninth Circuit disagreed with the Commission's construction of § 2(d), and reversed in part its ruling that the section had been violated. 359 F.2d 351 (1966). We granted certiorari, 386 U.S. 907 (1967), because the case presents important questions concerning the scope of a key provision of the Robinson-Patman Act.ISection 2(d) makes it unlawful for a supplier in interstate commerce to grant advertising or other sales promotional allowances to one "customer" who resells the supplier's "products or commodities" unless the allowances are "available on proportionally equal terms to all other customers competing in the distribution of such products or commodities." [Footnote 2] Although we have limited our review of this case to one aspect of the alleged § 2(d) Page 390 U. S. 344 violations, [Footnote 3] full understanding of the issues requires a brief exposition of the facts from which the Commission concluded that respondents had induced violations of both §§ 2(a) and 2(d). The relevant facts found by the Commission were not disturbed by the Court of Appeals.Respondent Fred Meyer, Inc. , operates a chain of 13 supermarkets in the Portland, Oregon, area which engage in the retail sale of groceries, drugs, variety items, and a limited line of clothing. In 1957, Meyer's sales exceeded $40,000,000. According to its 1960 prospectus, it made one-fourth of the retail food sales in the Portland area, and was the second largest seller of all goods in that area. Since 1936, Meyer has conducted annually a four-week promotional campaign in its stores based on the distribution of coupon books to consumers. The books usually contain 72 pages, each page featuring a single product being sold by Meyer at a reduced price. The consumer buys the book for the nominal sum of 10� and must surrender the appropriate coupon when making his purchase of goods. A coupon often represents a reduction Page 390 U. S. 345 of one-third or more from Meyer's regular price for the featured item, and the cover of the 1957 book stated that the use of all 72 coupons would result in total savings of more than $54. The promotional campaign is highly successful. Meyer sold 138,700 books in 1957 and 121,270 in 1958. Aside from the nominal 10� paid by consumers for the coupon books, Meyer finances the promotion by charging the supplier of each featured product a fee of at least $350 for each coupon-page advertising his product. [Footnote 4] Some participating suppliers further underwrite the promotion by giving Meyer price reductions on its purchases of featured items, by replacing at no cost a percentage of the goods sold by Meyer during the campaign, or by redeeming coupons in cash at an agreed rate.The Commission concluded that this promotional scheme, as conducted in the years 1956 through 1958, violated §§ 2(d) and 2(a) in the following respects: first, the $350 paid to Meyer by each of four suppliers participating in the campaigns represented promotional allowances paid in violation of § 2(d) because similar allowances were not made available on proportionally equal terms to competing customers. Second, the additional value given Meyer by these suppliers in the form of discounts, free replacements of goods sold and coupon redemptions amounted to price discrimination prohibited by § 2(a). [Footnote 5] The Commission held that, by inducing the suppliers to discriminate in price, respondents had violated Page 390 U. S. 346 § 2(f) of the Act, [Footnote 6] and that, by inducing them to grant discriminatory promotional allowances, respondents had engaged in an unfair method of competition in violation of § 5(a) of the Federal Trade Commission Act. [Footnote 7]Both before the Commission and in the Court of Appeals, respondents argued that it was not established that two participating suppliers, Tri-Valley Packing Association and Idaho Canning Company, had violated § 2(d). Meyer purchased directly from both of these suppliers. Tri-Valley participated in the 1957 promotion by paying Meyer $350 for a coupon-page featuring Tri-Valley's brand of canned peaches and by replacing in merchandise every third can sold by Meyer on the coupon's offer of three cans for the price of two. Idaho Canning participated in the 1957 promotion on substantially identical terms, except that the coupon-page it purchased offered three cans of corn for the price of two. The Commission found that two wholesalers, Hudson House and Wadhams & Co. , both of which resold to Meyer's retail competitors, had been disfavored in these transactions in that Hudson House had purchased canned peaches from Tri-Valley and both Hudson House and Wadhams had purchased canned corn from Idaho Canning, Page 390 U. S. 347 but neither of the two wholesalers had been accorded promotional allowances comparable to those received by Meyer. Respondents argued that, purely as a matter of statutory construction, Tri-Valley and Idaho Canning could not have violated the requirement of proportional equality among "customers competing in the distribution" of their products, because (1) Meyer, a retailer, was not "competing" in the distribution of canned corn and peaches with the disfavored wholesalers, Hudson House and Wadhams, and (2) the retailers found by the Commission to be competing with Meyer in the resale of these products were not "customers" of Tri-Valley and Idaho Canning, but were customers of Hudson House and Wadhams.The Commission rejected this reading of § 2(d), noting that, if respondents' view prevailed, a retailer buying from a wholesaler and having no direct dealings with his supplier would receive no protection against discriminatory promotional allowances given his competitor who purchased directly from the supplier. The Commission held that § 2(d) prohibits a supplier from granting promotional allowances to a direct-buying retailer, such as Meyer, unless the allowances are also made available to wholesalers who purchase from the supplier and resell to the direct-buying retailer's competitors. Accordingly, the Commission's cease and desist order included a provision barring respondents from inducing suppliers to grant them promotional allowances not available to "customers who resell to purchasers who compete with respondents in the resale of such supplier's products." 63 F.T.C. at ___. One Commissioner, while agreeing with the majority that respondents had induced Tri-Valley and Idaho Canning to violate § 2(d), dissented in part on the ground that the order should have required the promotional allowances to be made available to the retailers competing with Meyer, rather than to Page 390 U. S. 348 wholesalers who resold to them. [Footnote 8] Thus, in his view, the competing retailers were "customers" of Tri-Valley and Idaho Canning within the meaning of the statute. The Court of Appeals adopted the interpretation of § 2(d) urged by respondents. Consequently, it set aside the portion of the Commission's order set out above.We agree with the Commission that the proscription of § 2(d) reaches the kind of discriminatory promotional allowances granted Meyer by Tri-Valley and Idaho Canning. Therefore, we reverse the judgment of the Court of Appeals on this point. However, because we have concluded that Meyer's retail competitors, rather than the two wholesalers, were competing customers under the statute, we also remand the case for appropriate modification of the Commission's order. We deal first with respondents' arguments, second with the opinion of the Court of Appeals, and third with the Commission's order.IIRespondents press upon us a view of § 2(d) which leaves retailers who buy from wholesalers for the most part unprotected from discriminatory promotional allowances granted their direct-buying competitors. We are told that § 2(d) in specific terms requires this result. To benefit from the statute's requirement of proportional equality, it is urged, a buyer must be a "competing customer" within the narrowest sense of that phrase. Thus, the wholesalers in this case are not competing customers, because they do not compete with Meyer, and the retailers who do compete with Meyer in the resale of the suppliers' products are outside the protection of § 2(d) because they are not customers of the suppliers. For reasons stated below, we agree with respondents that, on Page 390 U. S. 349 the facts of this case, § 2(d) reaches only discrimination between customers competing for resales at the same functional level and, therefore, does not mandate proportional equality between Meyer and the two wholesalers. [Footnote 9] But we cannot accept the second half of this argument, for it rests on a narrow definition of "customer" which becomes wholly untenable when viewed in light of the central purpose of § 2(d) and the economic realities with which its framers were concerned.Conceding that the Robinson-Patman amendments by no means represent an exemplar of legislative clarity, [Footnote 10] we cannot, in the absence of an unmistakable directive, construe the Act in a manner which runs counter to the broad goals which Congress intended it to effectuate. See, e.g., FTC v. Sun Oil Co., 371 U. S. 505, 371 U. S. 516-521 (1963); Elizabeth Arden Sales Corp. v. Gus Blass Co., 150 F.2d 988, 991-993 (C.A. 8th Cir.), cert. denied, 326 U.S. 773 (1945). We start with the proposition that"[t]he Robinson-Patman Act was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power."FTC v. Henry Broch & Co., 363 U. S. 166, 363 U. S. 168 (1960). The role within the statutory scheme which Congress intended for § 2(d) is well documented in the legislative history. An investigation of chain store buying practices undertaken by the Federal Trade Commission, at Congress' request, [Footnote 11] had Page 390 U. S. 350 indicated that § 2 of the Clayton Act was an inadequate deterrent against outright price discrimination. [Footnote 12] The investigation also revealed that certain practices by which large buyers induced concessions which their smaller competitors could not obtain were wholly beyond the reach of § 2. [Footnote 13] It is significant that congressional concern had focused on the buying practices of large retailers, particularly the chain stores, because it was felt that they were threatening the continued existence of the independent merchant. [Footnote 14] Indeed, before Congress acted, some States had attempted to limit the growth of retail chains through express prohibitions against further extensions and through taxation. [Footnote 15] One of the practices disclosed by the Commission's investigation was that by which large retailers induced concessions Page 390 U. S. 351 from suppliers in the form of advertising and other sales promotional allowances. [Footnote 16] The draftsman of the provision which eventually emerged as § 2(d) explained that, even when such payments were made for actual sales promotional services, they were a form of indirect price discrimination because the recipient of the allowances could shift part of his advertising costs to his supplier while his disfavored competitor could not. [Footnote 17] That Congress adopted this view of the practice it sought to eliminate by § 2(d) is demonstrated by the words used by the Senate Judiciary Committee in recommending enactment of the section:"Still another favored medium for the granting of oppressive discriminations is found in the practice of large buyer customers to demand, and of their sellers to grant, special allowances in purported payment of advertising and other sales promotional services which the customer agrees to render with reference to the seller's products, or sometimes with reference to his business generally. Such an allowance becomes unjust when the service is not rendered as agreed and paid for or when, if rendered, the payment is grossly in excess of its value, or when, in any case, the customer is deriving from it equal benefit to his own business, and is thus enabled to shift to his vendor substantial portions of his own advertising cost while his smaller competitor, unable to command such allowances, cannot do so. [Footnote 18] "Page 390 U. S. 352Congress chose to deter such indirect price discrimination by prohibiting the granting of sales promotional allowances to one customer unless accorded on proportionally equal terms to all competing customers.Of course, neither the Committee Report nor other parts of the legislative history in so many words define "customer" to include retailers who purchase through wholesalers and compete with direct buyers in resales. But a narrower reading of § 2(d) would lead to the following anomalous result. On the one hand, direct-buying retailers like Meyer, who resell large quantities of their suppliers' products and therefore find it feasible to undertake the traditional wholesaling functions for themselves, would be protected by the provision from the granting of discriminatory promotional allowances to their direct-buying competitors. On the other hand, smaller retailers, whose only access to suppliers is through independent wholesalers, would not be entitled to this protection. Such a result would be diametrically opposed to Congress' clearly stated intent to improve the competitive position of small retailers by eliminating what was regarded as an abusive form of discrimination. If we were to read "customer" as excluding retailers who buy through wholesalers and compete with direct buyers, we would frustrate the purpose of § 2(d). We effectuate it by holding that the section includes such competing retailers within the protected class.IIIThe Commission did not press in the Court of Appeals the position of one Commissioner that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were customers of Tri-Valley and Idaho Canning. Consequently, that court gave almost no consideration to the construction of § 2(d) which we hold to be the proper one. Citing its prior Page 390 U. S. 353 ruling in Tri-Valley Packing Assn. v. FTC, 329 F.2d 694, 709-710 (C.A. 9th Cir.1964), the court merely stated that a § 2(d) violation could not be made out unless (1) Tri-Valley and Idaho Canning had in some way dealt directly with retailers competing with Meyer, and (2) canned peaches and corn sold by the two suppliers could be traced through Hudson House and Wadhams to the shelves of the competing retailers. 359 F.2d at 359-360, 362-363. In the view of the Court of Appeals, these two requirements compose the elements of the "indirect customer" doctrine under which the Commission and the courts impose § 2(d) liability when a supplier in effect supplants his intermediate distributors in dealings with those to whom the distributors resell and favors some of the distributors' accounts over others. See American News Co. v. FTC, 300 F.2d 104, 109 (C.A.2d Cir.), cert. denied, 371 U.S. 824 (1962); K. S. Corp. v. Chemstrand Corp., 198 F. Supp. 310, 312-313 (D.C.S.D.N.Y.1961); Kay Windsor Frocks, Inc., 51 F.T.C. 89, 95-96 (1954); F. Rowe, Price Discrimination Under the Robinson-Patman Act 398-399 (1962), 90 (1964 Supp.). We need not and do not question the validity of this doctrine as applied to pierce a supplier's unrealistic claim that a reseller favored by him is actually the customer of an intermediate distributor. Nor do we reach the question whether a retailer may succeed in a private action based on § 2(d) without proving that he in fact resold the supplier's product in competition with a favored buyer. In the case before us, it is conceded that Meyer was a customer of Tri-Valley and Idaho Canning. Moreover, as indicated by its approval of the Commission's § 2(a) ruling, the Court of Appeals did not question the Commission's finding that Meyer competed in the resale of Tri-Valley and Idaho Canning products with retailers who purchased through Hudson Page 390 U. S. 354 House and Wadhams. [Footnote 19] Given these findings, it was unnecessary for the Commission to resort to the indirect customer doctrine. Whether suppliers deal directly with disfavored competitors or not, they can, and here did, afford a direct buyer the kind of competitive advantage which § 2(d) was intended to eliminate. In light of our holding that "customers" in § 2(d) includes retailers who buy through wholesalers and compete with a direct buyer in the resale of the supplier's product, the requirement of direct dealing between the supplier and disfavored competitors imposed by the Court of Appeals rests on too narrow a reading of the statute. Further, in light of the Commission's finding that Meyer competed in the resale of the Idaho Canning and Tri-Valley products with other retailers in the area who purchased through Hudson House and Wadhams, and in light of the fact that the Court of Appeals did not disturb this finding, the court misapprehended the Commission's burden in requiring it to trace those products to the shelves of the disfavored retailers.IVThe Commission's view of the impact of respondents' argument in no way conflicts with our own. In rejecting respondents' construction of § 2(d), the Commission observed:"The net result of this argument is that the entire structure of 'independent' food merchants -- including the traditional wholesaler and his numerous, small retailer-customers -- are placed completely outside Page 390 U. S. 355 the pale of Section 2(d) of the amended Clayton Act insofar as their competition with the direct-buying 'chains' is concerned.""* * * *" "We are not persuaded that Congress either intended or effected any such result when it passed Section 2(d). In the first place, such a construction goes squarely against the well known purposes of the Act itself, namely, to give the 'independent' food sellers an even break in their competition with the 'chains.' [Footnote 20]"But rather than concluding, as we have, that retailers who purchased through Hudson House and Wadhams and competed with Meyer in resales were disfavored customers of Tri-Valley and Idaho Canning, a majority of the Commission held that the wholesalers, Hudson House and Wadhams, were the customers entitled to promotional allowances on proportionally equal terms with Meyer. Although we approach the Commission's ruling with the deference due the agency charged with day-to-day administration of the Act, we hold that, at least on the facts before us, § 2(d) does not require proportional equality between Meyer and the two wholesalers.The Commission believed it found support for its position in the language of § 2(d) itself, which requires that promotional allowances be accorded on proportionally equal terms to "customers competing in the distribution" of a supplier's product, rather than merely to customers competing in resales. The majority reasoned that Hudson House and Wadhams, when they resold to Meyer's retail competitors, were competing with Meyer in the distribution of Tri-Valley and Idaho Canning products because the two wholesalers were "seeking exactly the same consumer dollars that respondents Page 390 U. S. 356 are after." 63 F.T.C. at ___. While it cannot be doubted that Congress reasonably could have employed such a broad concept of competition in § 2(d), we do not believe that the use of the word "distribution", rather than "resale" is a clear indication that it did, and what discussion there was of the promotional allowance provision during the congressional hearings indicates that the section was meant to impose proportional equality only where buyers competed on the same functional level. Thus, in reporting the provision, both the Senate and House Judiciary Committees used the following example:"To illustrate: where, as was revealed in the hearings earlier referred to in this report, a manufacturer grants a particular chain distributor an advertising allowance of a stated amount per month per store in which the former's goods are sold, a competing customer with a smaller number of stores, but equally able to furnish the same service per store, and under conditions of the same value to the seller, would be entitled to a similar allowance on that basis. [Footnote 21]"This illustration and others which could be cited are not conclusive, but they do strongly suggest that the competition with which Congress was concerned in § 2(d) was that between buyers who competed in resales of the supplier's products. And, as stated above, Congress' objective was to assure that all sellers, regardless of size, competing directly for the same customers would receive even-handed treatment from their suppliers. [Footnote 22] We noted in FTC v. Sun Oil Co., 371 U. S. 505 (1963), that, when Congress wished to expand the meaning of competition to include more than resellers Page 390 U. S. 357 operating on the same functional level, it knew how to do so in unmistakable terms. It did so in § 2(a) of the Act by prohibiting price discrimination which may"injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them."Id. at 371 U. S. 514-515; see FTC v. Morton Salt Co., 334 U. S. 37, 334 U. S. 55 (1948). We stated in Sun Oil that:"There is no reason appearing on the face of the statute to assume that Congress intended to invoke by omission in § 2(b) the same broad meaning of competition or competitor which it explicitly provided by inclusion in § 2(a); the reasonable inference is quite the contrary. [Footnote 23]"In the present case, too, we think "the reasonable inference" is that Congress did not intend such a broad meaning of competition in § 2(d). We recognize that it would be both inappropriate and unwise to attempt to formulate an all-embracing rule applying the elusive language of the section to every system of distribution a supplier might devise for getting his product to the consumer. But, on the concrete facts here presented, it is clear that the direct impact of Meyer's receiving discriminatory promotional allowances is felt by the disfavored retailers with whom Meyer competes in resales. We cannot assume without a clear indication from Congress that § 2(d) was intended to compel the supplier to pay the allowances to a reseller further up the distributive chain who might or might not pass them on to the level where the impact would be felt directly. We conclude that the most reasonable construction of § 2(d) is one which places on the supplier the responsibility for making promotional allowances available to those resellers who compete directly with the favored buyer. Page 390 U. S. 358The Commission argues here that the view we take of § 2(d) is impracticable, because suppliers will not always find it feasible to bypass their wholesalers and grant promotional allowances directly to their numerous retail outlets. Our decision does not necessitate such bypassing. We hold only that, when a supplier gives allowances to a direct-buying retailer, he must also make them available on comparable terms to those who buy his products through wholesalers and compete with the direct buyer in resales. Nothing we have said bars a supplier, consistently with other provisions of the antitrust laws, from utilizing his wholesalers to distribute payments or administer a promotional program, so long as the supplier takes responsibility, under rules and guides promulgated by the Commission for the regulation of such practices, [Footnote 24] for seeing that the allowances are made available to all who compete in the resale of his product.The judgment of the Court of Appeals, insofar as it held that the promotional allowances granted Meyer by Tri-Valley and Idaho Canning did not violate § 2(d), is reversed. The case is remanded to the Court of Appeals with directions to remand to the Commission for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtFTC v. Fred Meyer, Inc., 390 U.S. 341 (1968)Federal Trade Commission v. Fred Meyer, Inc.No. 27Argued November 6, 1967Decided March 18, 1968390 U.S. 341SyllabusThe Federal Trade Commission (FTC) ruled that respondents, the corporate owner of a chain of supermarkets (Meyer) and two of its officers, had unlawfully induced suppliers to engage in discriminatory pricing and sales promotion activities prohibited by §§ 2(a) and 2(d) of the Clayton Act, as amended by the Robinson-Patman Act. The FTC held that § 2(d) prohibits a supplier from granting promotional allowances to a direct-buying retailer like Meyer unless the allowances are also made available to wholesalers who purchase from the supplier and resell to the direct-buying retailer's competitors. The Court of Appeals adopted respondents' view that the statutory requirement of proportional equality among "customers competing in the distribution" of products concerned competition at the same functional level of distribution, which did not include competition between direct-buying retailers and wholesalers, and that retailers competing with Meyer were not customers of the suppliers, but were customers of the wholesalers. The court set aside that portion of the FTC order which barred respondents from inducing suppliers to grant them promotional allowances not available to "customers who resell to purchasers who compete with respondents in the resale of such supplier's products."Held: On the facts of this case, § 2(d) reaches only discrimination between customers competing for resales at the same functional level. Pp. 390 U. S. 348-358.(a) The Act does not mandate proportional equality between the direct-buying retailer, Meyer, and the wholesalers. Pp. 390 U. S. 348-349, 355-357.(b) "Customer" in § 2(d) includes a retailer who buys through wholesalers and competes with a direct-buying retailer in the resale of the supplier's products. Pp. 390 U. S. 348-352.(c) The FTC found that Meyer competed in the resale of certain suppliers' products with other retailers in the area who Page 390 U. S. 342 purchased the products through wholesalers, and the Court of Appeals did not disturb this finding. P. 390 U. S. 354.(d) Since, in this case, the direct impact of the discriminatory promotional allowances is felt by the disfavored retailers, the most reasonable construction of § 2(d) is one which places on the supplier the responsibility for making promotional allowances available to those resellers who compete directly with the favored buyer. P. 390 U. S. 357.(e) A supplier may, consistently with the other provisions of the antitrust laws, utilize his wholesalers to distribute payments or administer promotional programs, as long as the supplier assumes responsibility, under the FTC's rules, for seeing that the allowances are made available to all who compete in the resale of his products. P. 390 U. S. 358.359 F.2d 351, reversed in part and remanded.

1973_72-1040

MR. JUSTICE BRENNAN delivered the opinion of the Court.This is a loyalty oath case. The question for decision is whether the First and Fourteenth Amendments are violated by Indiana's requirement, Ind. Ann.Stat. § 29-3812 (1969), that"[n]o existing or newly organized political party or organization shall be permitted on or to have the names of its candidates printed on the ballot used at any election until it has filed an affidavit, by its officers, under oath, that it does not advocate the overthrow Page 414 U. S. 443 of local, state or national government by force or violence. . . . [Footnote 1]"Appellants are the Communist Party of Indiana, a new political party in Indiana, certain of its officers and potential voters, and its candidates for President and Vice President in the 1972 election. Appellees are the Indiana State Election Board and its members. When appellants applied to the Election Board in August, 1972, for a place on Indiana's National Ballot for the 1972 general election without submitting the required oath, the Board, on the advice of the Attorney General of Indiana, rejected the application. Appellants thereupon filed this action in the District Court for the Northern District of Indiana seeking a declaration of the unconstitutionality Page 414 U. S. 444 of § 29-3812, and an injunction requiring that the Election Board place the Party on the ballot. A three-judge court was convened, and that court, on September 28, 1972, in an unreported opinion, declared the provision of § 29-3812 that is challenged on this appeal constitutional, and issued an order requiring the Election Board to place the Communist Party and its nominees on the National Ballot only "[i]n the event that the Communist Party of Indiana shall submit an affidavit in keeping with this memorandum and order. . . ." [Footnote 2] The Communist Party submitted an affidavit that, in addition to the statutory language, added the following:"The term 'advocate,' as used herein, has the meaning given it by the Supreme Court of the United States in Yates v. United States, 354 U. S. 298 at 354 U. S. 320, 'the advocacy and teaching of concrete action for the forcible overthrow of the government, and not of principles divorced from action.'"The Election Board rejected the affidavit, and appellants, on October 3, returned to the District Court, seeking an order directing the Board to accept it. On the same day, Page 414 U. S. 445 the Election Board filed a motion requesting reconsideration of the order of September 28. [Footnote 3] The District Court, on October 4, denied both motions by order entered that day. Appellants, on October 10, filed a notice of appeal to this Court to enable them to seek emergency relief. That effort was abandoned, and appellants then sought leave of the District Court to withdraw the notice of appeal in order that the District Court might act on a motion of appellants, also filed October 10, that the District Court amend its September 28 order to include a determination that § 29-3812 was constitutional "only insofar as it proscribes advocacy directed at promoting unlawful action, as distinguished from advocacy of abstract doctrine." On October 31, the District Court entered an order granting leave to withdraw the notice of appeal of October 10 but denying the motion to amend the September 28 memorandum.Appellants refiled their notice of appeal on November 29. Appellees moved to dismiss the appeal as jurisdictionally untimely, arguing that the 60-day period for appeal, 28 U.S.C. § 2101(b), expired on November 27. We postponed consideration of the question of our jurisdiction to the merits. 410 U.S. 981 (1973). We hold that the appeal was timely. Appellees' motion for reconsideration of October 3 suspended the finality of the judgment of September 28 until the District Court's denial of the motion on October 4 restored it. Time Page 414 U. S. 446 for appeal thus began to run from October 4, and the notice of appeal filed November 29 was timely. [Footnote 4] As to the merits, we hold that the loyalty oath requirement of § 29-3812 violates the First and Fourteenth Amendments, [Footnote 5] and therefore reverse the judgment of the District Court. [Footnote 6] Page 414 U. S. 447Loyalty oath cases are not strangers to this Court, see Note, Loyalty Oaths, 77 Yale L.J. 739 (1968), but the constitutional questions presented in earlier cases arising from their use to limit access to the ballot have not had plenary consideration. [Footnote 7] The District Court decided this case under the pressure of a ballot printing deadline, and its memorandum opinion states no reasons, and cites no authorities to support the court's holding that"that portion of the statute providing 'that it does not advocate the overthrow of local, state, or national government by force or violence' is constitutional, and hence enforceable by Indiana."Appellees do not deny that § 29-3812 exacts a broad oath embracing advocacy of abstract doctrine as well as action. Yet this Court has held in many contexts that the first and Fourteenth Amendments render invalid statutes regulating advocacy that are not limited to advocacy of action. And, as we have so often emphasized, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U. S. 415, 371 U. S. 438 (1963).We most recently summarized the constitutional principles Page 414 U. S. 448 that have evolved in this area in Brandenburg v. Ohio, 395 U. S. 444 (1969). We expressly overruled the earlier holding of Whitney v. California, 274 U. S. 357 (1927), that "without more, advocating' violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it." 395 U.S. at 395 U. S. 447. For, we said:"[L]ater decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961),""the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. . . .""A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U. S. 298 (1957). . . ."Id. at 395 U. S. 447-448.This principle that"the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"has been applied not only to statutes that directly forbid or proscribe advocacy, see Scales v. United States, 367 U. S. 203 (1961), Noto v. United States, 367 U. S. 290 (1961), Yates v. United States, Page 414 U. S. 449 354 U. S. 298 (1957), but also to regulatory schemes that determine eligibility for public employment, Keyishian v. Board of Regents, 385 U. S. 589 (1967); Elfbrandt v. Russell, 384 U. S. 11 (1966); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961); see also United States v. Robel, 389 U. S. 258 (1967); tax exemptions, Speiser v. Randall, 357 U. S. 513 (1958); and moral fitness justifying disbarment, Schware v. Board of Bar Examiners, 353 U. S. 232 (1957).Appellees argue that the principle should nevertheless not obtain in cases of state regulation of access to the ballot. We perceive no reason to make an exception, and appellees suggest none. Indeed, all of the reasons for application of the principle in the other contexts are equally applicable here."To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections."Kusper v. Pontikes, ante at 414 U. S. 57 (footnote omitted). At stake are appellants' First and Fourteenth Amendment rights to associate with others for the common advancement of political beliefs and ideas. "The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Ibid.; Williams v. Rhodes, 393 U. S. 23, 393 U. S. 30 (1968). At stake as well are appellants' interests as party members in casting an effective ballot. See Bullock v. Carter, 405 U. S. 134, 405 U. S. 142-144 (1972).Thus, burdening access to the ballot, rights of association in the political party of one's choice, interests in casting an effective vote and in running for office not because the Party urges others "to do something, now or in the future . . . , [but] . . . merely to believe in something," Yates v. United States, supra, at 354 U. S. 325, is to Page 414 U. S. 450 infringe interests certainly as substantial as those in public employment, tax exemption, or the practice of law. For "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. . . ." Reynolds v. Sims, 377 U. S. 533, 377 U. S. 562 (1964). "Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 17 (1964).Appellees argue:"It is fraudulent for a group seeking by violent revolution to overthrow our democratic form of government to disguise itself as a political party and use the very forms of the democracy it seeks to subvert in order to gain support and carry on its nefarious ends."Brief for Appellees 7. Again, they argue"that the affidavit required under the statute refers to the official actions of the party itself, thus reducing to a minimum any possibility of 'innocent involvement' in activities which might be considered advocacy."Id. at 10. As we understand appellees, this is an argument that, at least for purposes of determining whether to grant a place on the ballot, any group that advocates violent overthrow as abstract doctrine must be regarded as necessarily advocating unlawful action. We reject that proposition. Its acceptance would only return the law to the "thoroughly discredited" regime of Whitney v. California, 274 U. S. 357 (1927), unanimously overruled by the Court in Brandenburg v. Ohio, 395 U.S. at 395 U. S. 447, 449. [Footnote 8]Reversed

U.S. Supreme CourtCommunist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974)Communist Party of Indiana v. WhitcombNo. 72-1040Argued October 16, 1973Decided January 9, 1974414 U.S. 441SyllabusThe application of appellants (the Communist Party of Indiana, certain of its officers and potential voters, and its candidates for President and Vice President) for a place on the Indiana ballot for the 1972 general election was rejected for failure to submit a statutory loyalty oath stating that the Party "does not advocate the overthrow of local, state or national government by force or violence." Appellants, contending that the statute was unconstitutional, thereupon filed this action in the District Court for injunctive and declaratory relief. On September 28, 1972, a three-judge court declared the statute constitutional and ordered the Election Board to place the Party on the ballot, but only if the required oath was submitted. After a qualified oath submitted by the Party was rejected, appellants, on October 3, sought a District Court order directing the Board to accept such oath, and, on the same day, the Board requested reconsideration of the September 28 order. The next day, the District Court denied both motions. On October 10, appellants filed a notice of appeal to this Court, which it later sought to withdraw so that the District Court might act on appellants' motion of the same day that the September 28 order be amended in certain respects. On October 31, the District Court allowed withdrawal of the appeal notice, but denied the motion to amend. Appellants refiled their notice of appeal to this Court on November 29, which appellees contend is untimely.Held:1. Appellants' notice of appeal was within the 60-day appeal period prescribed by 28 U.S.C. § 2101(b), since appellees' October 3 motion for reconsideration suspended the finality of the September 28 judgment until the District Court's denial of such motion on October 4 restored it, so that the time for appeal thus began to run from October 4. Pp. 414 U. S. 45-44.2. The loyalty oath requirement of the Indiana statute violates the First and Fourteenth Amendments. Pp. 414 U. S. 446-450. Page 414 U. S. 442(a) The principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action, applies to state regulation burdening access to the ballot, rights of association in the political party of one's choice, casting an effective ballot, and in running for office, which are interests as substantial as those in other areas that this Court has protected against statutory schemes contrary to the First and Fourteenth Amendments. Pp. 414 U. S. 448-449.(b) For purposes of determining whether to grant a place on the ballot, a group advocating violent overthrow as abstract doctrine need not be regarded as necessarily advocating unlawful action. Pp. 414 U. S. 449-450.Reversed.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. POWELL, J., filed an opinion concurring in the result, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 414 U. S. 451.

1983_83-95

JUSTICE POWELL delivered the opinion of the Court.This case brings before us a claim that pretrial publicity so infected a state criminal trial as to deny the defendant his Sixth Amendment right to an "impartial jury."IOn April 28, 1966, the body of Pamela Rimer, an 18-year-old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County, Pa. There were Page 467 U. S. 1027 numerous wounds about her head and cuts on her throat and neck. An autopsy revealed that she died of strangulation when blood from her wounds was drawn into her lungs. The autopsy showed no indication that she had been sexually assaulted.At about 5:45 the following morning, respondent Yount appeared at the State Police Substation in nearby DuBois. Yount, who had been the victim's high school mathematics teacher, proceeded to give the police oral and written confessions to the murder. The police refused to release the confession to the press, and it was not published until after it was read at Yount's arraignment three days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the confessions were admitted into evidence. Yount took the stand and claimed temporary insanity. The jury convicted him of first-degree murder and rape, and he was sentenced to life imprisonment. On direct appeal, the Pennsylvania Supreme Court determined that, under Miranda v. Arizona, 384 U. S. 436 (1966), police had given Yount inadequate notice of his right to an attorney prior to his confession. The court remanded for a new trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925 (1970).Prior to the second trial in 1970, the trial court ordered suppression of Yount's written confessions and that portion of the oral confession that was obtained after he was legally in custody. The prosecution dismissed the rape charge. There followed an extensive voir dire that is now at the heart of this case. Jury selection began on November 4, 1970, and took 10 days, 7 jury panels, 292 veniremen, and 1,186 pages of testimony. Yount moved for a change of venue before, and several times during, the voir dire. He argued that the widespread dissemination of prejudicial information could not be eradicated from the minds of potential jurors, and cited in support the difficulty of the voir dire and numerous newspaper and other articles about the case. The motions were denied. The trial court noted that the articles merely reported Page 467 U. S. 1028 events without editorial comment; that the length of the voir dire resulted in part from the court's leniency in allowing examinations and challenges of the jurors; that "almost all, if not all," the jurors seated had "no prior or present fixed opinion"; and that there had been "little, if any, talk in public" between the two trials. The court also observed that the voir dire of the second trial had been sparsely attended.Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount did not take the stand and did not claim temporary insanity. Instead he relied upon cross-examination and character witnesses in an attempt to undermine the State's proof of his intent. The jury convicted him again of first-degree murder, and he was resentenced to life imprisonment. The trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, and that little public interest was shown during the second trial. App. 268a. In addition, the court concluded that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. Commonwealth v. Yount, 455 Pa. 303, 311-314, 314 A.2d 242, 247-248 (1974).In January 1981, Yount filed a petition for a writ of habeas corpus in United States District Court. He claimed, inter alia, that his conviction had been obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial by an impartial jury. The case was assigned to a Magistrate, who conducted a hearing and recommended that the petition be granted. The District Court rejected the Magistrate's recommendation. 537 F. Supp. 873 (WD Pa.1982). It held that the pretrial publicity was not vicious, excessive, nor officially sponsored, and that the jurors were able to set aside any preconceived notions of guilt. It noted that the percentage of jurors excused for cause was "not remarkable to anyone familiar with the difficulty in selecting a homicide jury in Pennsylvania." Id. at 882. In addition, the court reviewed Page 467 U. S. 1029 the instances in which the state trial court had denied a challenge for cause, and upheld the trial court's view that the jury was impartial.The Court of Appeals for the Third Circuit reversed. 710 F.2d 956 (1983). The court relied primarily on the analysis set out in Irvin v. Dowd, 366 U. S. 717 (1961), and found that pretrial publicity had made a fair trial impossible in Clearfield County. It independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated. The publicity revealed Yount's prior conviction for murder, his confession, and his prior plea of temporary insanity, information not admitted into evidence at trial. [Footnote 1] The voir dire showed that all but 2 of 163 veniremen questioned about the case [Footnote 2] had heard of it, and that, 126, or 77%, admitted they would carry an opinion into the jury box. This was a higher percentage than in Irvin, where 62% of the 430 veniremen were dismissed for cause because they had fixed opinions concerning the petitioner's guilt. Finally, the Court of Appeals found that 8 of the 14 jurors and alternates actually seated admitted that, at Page 467 U. S. 1030 some time, they had formed an opinion as to Yount's guilt. [Footnote 3] The court thought that many of the jurors had given equivocal responses when asked whether they could set aside these opinions, and that one juror, a Mr. Hrin, and both alternates would have required evidence to overcome their beliefs. The court concluded that, "despite their assurances of impartiality, the jurors could not set aside their opinions and render a verdict based solely on the evidence presented." 710 F.2d at 972. [Footnote 4]Judge Garth concurred in the judgment. He declined to join the court's view that actual prejudice on the part of the jury might be inferred from pretrial publicity and the answers at voir dire of veniremen not selected for the jury. He wrote that"[a] thorough and skillfully conducted voir dire should be adequate to identify juror bias, even in a community saturated with publicity adverse to the defendant."Id. at 979. [Footnote 5] Judge Garth nevertheless concurred because, in his view, juror Hrin stated at voir dire that he would have required evidence to change his mind about Yount's Page 467 U. S. 1031 guilt. This stripped the defendant of the presumption of innocence. [Footnote 6]We granted certiorari, 464 U.S. 913 (1983), to consider, in the context of this case, the problem of pervasive media publicity that now arises so frequently in the trial of sensational criminal cases. We reverse the judgment of the Court of Appeals.IIAs noted, the Court of Appeals rested its decision that the jury was not impartial on this Court's decision in Irvin v. Dowd, supra. That decision, a leading one at the time, held that adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed. The Court in Irvin reviewed a number of factors in determining whether the totality of the circumstances raised such a presumption. The Court noted, however, that the trial court's findings of impartiality might be overturned only for "manifest error." 366 U.S. at 366 U. S. 723. The Court of Appeals in this case did not address this aspect of the Irvin decision. [Footnote 7] Moreover, the Page 467 U. S. 1032 court below, in concentrating on the factors discussed at length in Irvin, failed to give adequate weight to other significant circumstances in this case. In Irvin, the Court observed that it was during the six or seven months immediately preceding trial that "a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant]." Id. at 725. In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to Yount's first trial in 1966. The jury selection for Yount's second trial, at issue here, did not occur until four years later, at a time when prejudicial publicity was greatly diminished and community sentiment had softened. In these circumstances, we hold that the trial court did not commit manifest error in finding that the jury as a whole was impartial.The record reveals that, in the year and a half from the reversal of the first conviction to the start of the second voir dire, each of the two Clearfield County daily newspapers published an average of less than one article per month. App. 642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important, many of these were extremely brief announcements of the trial dates and scheduling such as are common in rural newspapers. E.g., App. 653a-656a; Record, Ex. P-1-ff, P-1-ii, P-1jj. The transcript of the voir dire contains numerous references to the sparse publicity and minimal public interest prior to the second trial. E.g., App. 43a, 98a, 100a; Tr. (Nov. 4, 1970) 27-28, 90, 191, 384, 771, 829, 1142. It is true that, during the voir dire, the newspapers published articles on an almost daily basis, but these too were purely factual articles generally discussing not the crime or prior prosecution, but the prolonged process of jury selection. App. 658a-671a. In short, the record of publicity in the Page 467 U. S. 1033 months preceding, and at the time of, the second trial does not reveal the "barrage of inflammatory publicity immediately prior to trial," Murphy v. Florida, 421 U. S. 794, 421 U. S. 798 (1975), amounting to a "huge . . . wave of public passion," Irvin, 366 U.S. at 366 U. S. 728, that the Court found in Irvin.The voir dire testimony revealed that this lapse in time had a profound effect on the community and, more important, on the jury, in softening or effacing opinion. Many veniremen, of course, simply had let the details of the case slip from their minds. E.g., App.194a; Tr. 33, 284, 541-544, 991. In addition, while it is true that a number of jurors and veniremen testified that, at one time, they had held opinions, for many, time had weakened or eliminated any conviction they had had. See, e.g., App. 98a-100a (juror number 7), 128a (juror number 8); Tr. 384-385, 398-399, 831, 897 (semble), 1075-1076, 1144; see also App. 164a-166a (juror number 10). [Footnote 8] Page 467 U. S. 1034 The same is true of the testimony of the jurors and veniremen who were seated late in the process, and therefore were subjected to some of the articles and broadcasts disseminated daily during the voir dire: [Footnote 9] the record suggests that their passions had not been inflamed, nor their thoughts biased by the publicity. E.g., id. at 176a-177a, 150a-151a; Tr. 771, 959, 1027.That time soothes and erases is a perfectly natural phenomenon, familiar to all. See Irvin v. Dowd, 271 F.2d 552, 561 (CA7 1959) (Duffy, J., dissenting) (A continuance should have been granted because "[t]he passage of time is a great healer," and public prejudice might have "subsid[ed]"), rev'd, 366 U. S. 717 (1961); see also Murphy, supra, at 802; Beck v. Washington, 369 U. S. 541, 369 U. S. 556 (1962). Not all members of the venire had put aside earlier prejudice, as the voir dire disclosed. They retained their fixed opinions, and were disqualified. But the testimony suggests that the voir dire resulted in selecting those who had forgotten or would need to be persuaded again. [Footnote 10] Page 467 U. S. 1035The Court of Appeals below thought that the fact that the great majority of veniremen "remembered the case" showed that time had not served "to erase highly unfavorable publicity from the memory of [the] community." 710 F.2d at 969. This conclusion, without more, is essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at Yount's trial had such fixed opinions that they could not judge impartially the guilt of the defendant. Irvin, 366 U.S. at 366 U. S. 723. It is not unusual that one's recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have passed. It would be fruitless to attempt to identify any particular lapse of time that, in itself, would distinguish the situation that existed in Irvin. [Footnote 11] But it is clear that the passage of time between a first and a second trial can be a highly relevant fact. In the circumstances of this case, we hold that it clearly rebuts any presumption of partiality or prejudice that existed at the time of the initial trial. There was fair, even abundant, support for the trial court's findings that, between the two trials of this case, there had been "practically no publicity given to this matter through the news media," and that there had not been "any great effect created by any publicity." App. 268a, 265a. Page 467 U. S. 1036IIIYount briefly argues here that juror Hrin, as well as the two alternates, were erroneously seated over his challenges for cause. Brief for Respondent 32. There is substantial doubt whether Yount properly raised in his petition for habeas corpus the claim that the trial court erroneously denied his challenge for cause to juror Hrin. Compare 710 F.2d at 966, n. 18, with id. at 977, and n. 4 (Garth, J., concurring). And there is no evidence that the alternate jurors, who did not sit in judgment, actually talked with the other jurors during the 4-day trial. But Judge Garth in the court below based his concurrence on the view that Hrin would have required Yount to produce evidence to overcome his inclination to think the accused was guilty, and the majority of the panel thought that the 4-day association between the alternates and the other jurors "operate[d] to subvert the requirement that the jury's verdict be based on evidence developed from the witness stand," id. at 971, n. 25. Therefore, we will consider briefly the claims as to all three jurors.It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. See id. at 968, n. 20, 981. Thus, they concluded that the presumption of correctness due a state court's factual findings under 28 U.S.C. § 2254(d) does not apply. The opinions below relied for this proposition on Irvin v. Dowd, 366 U.S. at 366 U. S. 723. Irvin addressed the partiality of the trial jury as a whole, a question we discuss in 467 U. S. supra. We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather, it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed. Cf. Rushen v. Spain, 464 U. S. 114, Page 467 U. S. 1037 464 U. S. 120 (1983) (state court determination that juror's deliberations were not biased by ex parte communications is a finding of fact). [Footnote 12] Page 467 U. S. 1038There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning, e.g., United States v. Burr, 25 F. Cas. 49, 51 (No. 15,692g) (CC Va. 1807) (Marshall, C.J.), usually identifies bias. [Footnote 13] Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." E.g., 466 U. S. Consumers Union of U.S., Inc., 466 U. S. 485, 466 U. S. 500 (1984). The respect paid such findings in a habeas proceeding certainly should be no less. See Marshall v. Lonberger, 459 U. S. 422, 459 U. S. 434-435 (1983). [Footnote 14]Thus, the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. See 28 U.S.C. § 2254(d)(8). The testimony Page 467 U. S. 1039 of each of the three challenged jurors is ambiguous, and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross-section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and, under our system, it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.The voir dire examination of juror Hrin was carefully scrutinized by the state courts and the Federal District Court, as he was challenged for cause and was a member of the jury that convicted the defendant. We think that the trial judge's decision to seat Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated:"I think I could enter it [the jury box] with a very open mind. I think I could . . . very easily. To say this is a requirement for some of the things you have to do every day."App. 89a. After this categorical answer, defense counsel did not renew their challenge for cause. Similarly, in the case of alternate juror Pyott, we cannot fault the trial judge for crediting her earliest testimony, in which she said that she could put her opinion aside "[i]f [she] had to," rather than the later testimony in Page 467 U. S. 1040 which defense counsel persuaded her that, logically, she would need evidence to discard any opinion she might have. Id. at 246a, 250a-252a. Alternate juror Chincharick's testimony is the most ambiguous, as he appears simply to have answered "yes" to almost any question put to him. It is here that the federal court's deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.IVWe conclude that the voir dire testimony and the record of publicity do not reveal the kind of "wave of public passion" that would have made a fair trial unlikely by the jury that was empaneled as a whole. We also conclude that the ambiguity in the testimony of the cited jurors who were challenged for cause is insufficient to overcome the presumption of correctness owed to the trial court's findings. We therefore reverse.It is so ordered

U.S. Supreme CourtPatton v. Yount, 467 U.S. 1025 (1984)Patton v. YountNo. 83-95Argued February 28, 1984Decided June 26, 1984467 U.S. 1025SyllabusAfter a jury trial in a Pennsylvania state court in 1966, respondent was convicted of first-degree murder and rape, and was sentenced to life imprisonment. However, on direct appeal, the Pennsylvania Supreme Court held that the police had violated respondent's constitutional rights in securing confessions that had been admitted in evidence, and remanded the case for a new trial. Before and during an extensive voir dire examination of potential jurors at the second trial in 1970, respondent moved for a change of venue, arguing that publicity concerning the case had resulted in dissemination of prejudicial information that could not be eradicated from the potential jurors' minds. The trial court denied the motions, and respondent was convicted again of first-degree murder. He was resentenced to life imprisonment, and the trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, that little public interest was shown during the second trial, and that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. Respondent then sought habeas corpus relief in Federal District Court, claiming that his conviction had been obtained in violation of his right under the Sixth and Fourteenth Amendments to a fair trial by an impartial jury. Upholding the state trial court's view that the jury was impartial, the District Court denied relief, but the Court of Appeals reversed. Relying primarily on Irvin v. Dowd, 366 U. S. 717, the court found that pretrial publicity had made a fair trial impossible in the county.Held:1. The voir dire testimony and the record of publicity do not reveal the kind of "wave of public passion" that would have made a fair trial unlikely by the empaneled jury as a whole. Although Irvin v. Dowd, supra, held that adverse publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed, it also recognized that the trial court's findings of impartiality may be overturned only for "manifest error." In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to respondent's first trial. The record shows that prejudicial publicity was greatly diminished and community sentiment Page 467 U. S. 1026 ment had softened when the jury for the second trial was selected four years later. Thus the trial court did not commit manifest error in finding that the jury as a whole was impartial. Potential jurors who had retained fixed opinions as to respondent's guilt were disqualified, and the fact that the great majority of veniremen "remembered the case," without more, is essentially irrelevant. The relevant question is whether the jurors at respondent's second trial had such fixed opinions that they could not judge impartially respondent's guilt. The passage of time between the first and second trials clearly rebutted any presumption of partiality or prejudice that existed at the time of the initial trial. Pp. 467 U. S. 1031-1035.2. There is no merit in respondent's argument that one of the selected jurors, as well as the two alternates, had been erroneously seated over his challenges for cause. The ambiguity in the testimony of the cited jurors was insufficient to overcome the presumption of correctness, under 28 U.S.C. § 2254(d), owed to the trial court's findings. The question of an individual juror's partiality is plainly one of historical fact, and there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. Pp. 467 U. S. 1036-1040.710 F.2d 956, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 467 U. S. 1040. MARSHALL, J., took no part in the decision of the case.

1972_71-1428

MR. JUSTICE BRENNAN delivered the opinion of the Court.This case requires us to determine whether a person released on his own recognizance is "in custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a). See Peyton v. Rowe, 391 U. S. 54 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968); Jones v. Cunningham, 371 U. S. 236 (1963). Petitioner initiated this action in the United States District Court for the Northern District of California, challenging a state court conviction on First and Fourteenth Page 411 U. S. 346 Amendment grounds. The court denied relief, holding that, since the petitioner was enlarged on his own recognizance pending execution of sentence, he was not yet "in custody" for purposes of the habeas corpus statute. The Court of Appeals for the Ninth Circuit agreed that release on one's own recognizance is not sufficient custody to confer jurisdiction on the District Court, and affirmed the judgment. 453 F.2d 1252 (1972). [Footnote 1] We granted certiorari, 409 U.S. 840 (1972), and we reverse.Convicted of a misdemeanor in California Municipal Court for violation of § 29007 of the California Education Code, [Footnote 2] petitioner was sentenced to serve one year in jail and pay a fine of $625. He appealed his conviction unsuccessfully to the Appellate Department of the Superior Court, and his efforts to have the conviction set aside on state court collateral attack have proved equally unavailing. It appears that petitioner exhausted all available state court remedies prior to filing this petition for federal habeas corpus. See 28 U.S.C. § 2254(b). [Footnote 3] Page 411 U. S. 347At all times since his conviction, petitioner has been enlarged on his own recognizance. While pursuing his state court remedies, he remained at large under an order of the state trial court staying execution of his sentence. And the state trial court extended its stay, even after the Supreme Court of California declined to hear his application for post-conviction relief, apparently to permit petitioner to remain at large while seeking habeas corpus in the United States District Court. Pending appeal from the District Court's denial of relief, an application for extension of the state court stay was granted by Mr. Justice Black, as Acting Circuit Justice, on August 12, 1970, and extended by MR. JUSTICE DOUGLAS, as Circuit Justice, on August 20, 1970, and again on September 9, 1970. [Footnote 4] The Court of Appeals affirmed the denial of habeas corpus, but granted a 30-day stay of its mandate pending application for certiorari. That stay was extended by MR. JUSTICE DOUGLAS, as Circuit Justice, on March 20, 1972, and it is pursuant to his order that petitioner remains at large at the present time. Page 411 U. S. 348The California Penal Code provides that any court that may release a defendant upon his giving bail may release him on his own recognizance, provided he agrees in writing that:"(a) He will appear at all times and places as ordered by the court or magistrate releasing him and as ordered by any court in which, or any magistrate before whom, the charge is subsequently pending.""(b) If he fails to so appear and is apprehended outside of the State of California, he waives extradition.""(c) Any court or magistrate of competent jurisdiction may revoke the order of release and either return him to custody or require that he give bail or other assurance of his appearance. . . ."Cal.Penal Code § 1318.4. A defendant is subject to re-arrest if he fails to appear as agreed, id. § 1318.8(a), and a willful failure to appear is itself a criminal offense. Id. § 1319.6. We assume that these statutory conditions have been imposed on petitioner at all times since the state trial court stayed execution of his sentence.The question presented for our decision is a narrow one, namely, whether the conditions imposed on petitioner as the price of his release constitute "custody" as that term is used in the habeas corpus statute. Respondent contends that the conditions imposed on petitioner are significantly less restrictive than those imposed on the petitioner in Jones v. Cunningham, 371 U. S. 236 (1963), where we held that a person released on parole is "in custody" for purposes of the district courts' habeas corpus jurisdiction. It is true, of course, that the parolee is generally subject to greater restrictions on his liberty of movement than a person released on bail or his own recognizance. And some lower courts have reasoned Page 411 U. S. 349 that this difference precludes an extension of the writ in cases such as the one before us. [Footnote 5] On the other hand, a substantial number of courts, perhaps a majority, have concluded that a person released on bail or on his own recognizance may be "in custody" within the meaning of the statute. [Footnote 6] In view of the analysis which led to a finding of custody in Jones v. Cunningham, supra, we conclude that this latter line of cases reflects the sounder view.While the "rhetoric celebrating habeas corpus has changed little over the centuries," [Footnote 7] it is nevertheless true that the functions of the writ have undergone dramatic change. Our recent decisions have reasoned from the premise that habeas corpus is not "a static, narrow, formalistic remedy," Jones v. Cunningham, supra, at 371 U. S. 243, Page 411 U. S. 350 but one which must retain the "ability to cut through barriers of form and procedural mazes." Harris v. Nelson, 394 U. S. 286, 394 U. S. 291 (1969). See Frank v. Mangum, 237 U. S. 309, 237 U. S. 346 (1915) (Holmes, J., dissenting)."The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."Harris v. Nelson, supra, at 394 U. S. 291.Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements. The demand for speed, flexibility, and simplicity is clearly evident in our decisions concerning the exhaustion doctrine, Fay v. Noia, 372 U. S. 391 (1963); Brown v. Allen, 344 U. S. 443 (1953); the criteria for relitigation of factual questions, Townsend v. Sain, 372 U. S. 293 (1963); the prematurity doctrine, Peyton v. Rowe, 391 U. S. 54 (1968); the choice of forum, Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973); Strait v. Laird, 406 U. S. 341 (1972); and the procedural requirements of a habeas corpus hearing, Harris v. Nelson, supra. That same theme has indelibly marked our construction of the statute's custody requirement. See Strait v. Laird, supra; Peyton v. Rowe, supra; Carafas v. LaVallee, 391 U. S. 234 (1968); Walker v. Wainwright, 390 U. S. 335 (1968); Jones v. Cunningham, supra. [Footnote 8] Page 411 U. S. 351The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is, to a large extent, uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate. Applying that principle, we can only conclude that petitioner is in custody for purposes of the habeas corpus statute. First, he is subject to restraints "not shared by the public generally," Jones v. Cunningham, supra, at 371 U. S. 240: that is, the obligation to appear "at all times and places as ordered" by "[a]ny court or magistrate of competent jurisdiction." Cal.Penal Code §§ 1318.4(a), 1318.4(c). He cannot come and go as he pleases. His freedom of movement rests in the hands of state judicial officers, who may demand his presence at any time and without a moment's notice. Disobedience is itself a criminal offense. The restraint on his liberty is surely no less severe than the conditions imposed on the unattached reserve officer whom we held to be "in custody" in Strait v. Laird, supra. [Footnote 9]Second, petitioner remains at large only by the grace of a stay entered first by the state trial court and then extended by two Justices of this Court. The State has emphatically indicated its determination to put him behind bars, and the State has taken every possible step to secure that result. His incarceration is not, in other Page 411 U. S. 352 words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where the unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retain the determination and the power to seize him as soon as the obstacle of the stay is removed. The need to keep the stay in force is itself an unusual and substantial impairment of his liberty.Moreover, our conclusion that the petitioner is presently in custody does not interfere with any significant interest of the State. Indeed, even if we were to accept respondent's argument that petitioner is not in custody, that result would do no more than postpone this habeas corpus action until petitioner had begun service of his sentence. [Footnote 10] It would still remain open to the District Court to order petitioner's release pending consideration of his habeas corpus claim. In re Shuttlesworth, 369 U. S. 35 (1962). Even if petitioner remained in jail only long enough to have his petition filed in the District Court, his release by order of the District Court would not jeopardize his "custody" for purposes of a habeas corpus action. Carafas v. LaVallee, supra. [Footnote 11] Plainly, Page 411 U. S. 353 we would badly serve the purposes and the history of the writ to hold that, under these circumstances, the petitioner's failure to spend even 10 minutes in jail is enough to deprive the District Court of power to hear his constitutional claim.Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. Where a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts. Nothing in today's opinion alters the application of that doctrine to such a defendant.Since the Court of Appeals erroneously concluded that petitioner was not "in custody" at the time his petition was filed, its judgment is reversed and the case is remanded to the District Court to consider his petition for a writ of habeas corpus.Reversed

U.S. Supreme CourtHensley v. Municipal Court, 411 U.S. 345 (1973)Hensley v. Municipal CourtNo. 71-1428Argued January 15, 1973Decided April 18, 1973411 U.S. 345SyllabusRestraints imposed on petitioner who was released on his own recognizance constitute "custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3), 2254(a). Pp. 411 U. S. 348-353.453 F.2d 1252, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 411 U. S. 353. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL, J., joined, post, p. 411 U. S. 354.

1982_81-1255

JUSTICE POWELL announced the judgment of the Court in Part VI and delivered the opinion of the Court with respect to Parts I and II and an opinion with respect to Parts III, IV, and V, in which THE CHIEF JUSTICE joins.These cases, like City of Akron v. Akron Center for Reproductive Health, Inc., ante p. 462 U. S. 416, and Simopoulos v. Virginia, post, p. 462 U. S. 506, present questions as to the validity of state statutes or local ordinances regulating the performance of abortions.IPlanned Parenthood Association of Kansas City, Missouri, Inc., two physicians who perform abortions, and an abortion clinic (plaintiffs) filed a complaint in the District Court for the Western District of Missouri challenging, as unconstitutional, several sections of the Missouri statutes regulating the performance of abortions. The sections relevant here include Mo.Rev.Stat. § 188.025 (Supp.1982), requiring that abortions after 12 weeks of pregnancy be performed in a hospital; [Footnote 1] § 188.047, requiring a pathology report for each abortion performed; [Footnote 2] § 188.030.3, requiring the presence of a second Page 462 U. S. 479 physician during abortions performed after viability; [Footnote 3] and § 188.028, requiring minors to secure parental or judicial consent. [Footnote 4] Page 462 U. S. 480After hearing testimony from a number of expert witnesses, the District Court invalidated all of these sections except the pathology requirement. 483 F. Supp. 679, 699701 (1980). [Footnote 5] The Court of Appeals for the Eighth Circuit Page 462 U. S. 481 reversed the District Court's judgment with respect to § 188.028, thereby upholding the requirement that a minor secure parental or judicial consent to an abortion. It also held that the District Court erred in sustaining § 188.047, the pathology requirement. The District Court's judgment with respect to the second physician requirement was affirmed, and the case was remanded for further proceedings and findings relating to the second trimester hospitalization requirement. 655 F.2d 848, 872-873 (1981). On remand, the District Court adhered to its holding that the second trimester hospitalization requirement was unconstitutional. The Court of Appeals affirmed this judgment. 664 F.2d 687, 691 (1981). We granted certiorari. 456 U.S. 988 (1982).The Court today, in City of Akron, ante at 462 U. S. 426-431, has stated fully the principles that govern judicial review of state statutes regulating abortions, and these need not be repeated here. With these principles in mind, we turn to the statutes at issue.IIIn City of Akron, we invalidated a city ordinance requiring physicians to perform all second trimester abortions at general or special hospitals accredited by the Joint Commission on Accreditation of Hospitals (JCAH) or by the American Osteopathic Association. Ante at 462 U. S. 431-432. Missouri's hospitalization requirements are similar to those enacted by Akron, as all second trimester abortions must be performed in general, acute care facilities. [Footnote 6] For the reasons stated in City of Page 462 U. S. 482 Akron, we held that such a requirement "unreasonably infringes upon a woman's constitutional right to obtain an abortion." Ante at 462 U. S. 439. For the same reasons, we affirm the Court of Appeals' judgment that § 188.025 is unconstitutional.IIIWe turn now to the State's second physician requirement. In Roe v. Wade, 410 U. S. 113 (1973), the Court recognized that the State has a compelling interest in the life of a viable fetus:"[T]he State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."Id. at 410 U. S. 164-165. See Colautti v. Franklin, 439 U. S. 379, 439 U. S. 386-387 (1979); Beal v. Doe, 432 U. S. 438, 432 U. S. 445-446 (1977). Several of the Missouri statutes undertake such regulation. Post-viability abortions are proscribed except when necessary to preserve the life or the health of the woman. Mo.Rev.Stat. § 188.030.1 (Supp.1982). The Page 462 U. S. 483 State also forbids the use of abortion procedures fatal to the viable fetus unless alternative procedures pose a greater risk to the health of the woman. § 188.030.2.The statutory provision at issue in this case requires the attendance of a second physician at the abortion of a viable fetus. § 188.030.3. This section requires that the second physician"take all reasonable steps in keeping with good medical practice . . . to preserve the life and health of the viable unborn child; provided that it does not pose an increased risk to the life or health of the woman."See n 3, supra. It also provides that the second physician "shall take control of and provide immediate medical care for a child born as a result of the abortion."The lower courts invalidated 188.030.3. [Footnote 7] The plaintiffs, respondents here on this issue, urge affirmance on the Page 462 U. S. 484 grounds that the second physician requirement distorts the traditional doctor-patient relationship, and is both impractical and costly. They note that Missouri does not require two Page 462 U. S. 485 physicians in attendance for any other medical or surgical procedure, including childbirth or delivery of a premature infant.The first physician's primary concern will be the life and health of the woman. Many third trimester abortions in Missouri will be emergency operations, [Footnote 8] as the State permits these late abortions only when they are necessary to preserve the life or the health of the woman. It is not unreasonable for the State to assume that, during the operation, the first physician's attention and skills will be directed to preserving the woman's health, and not to protecting the actual life of those fetuses who survive the abortion procedure. Viable fetuses will be in immediate and grave danger because of their premature birth. A second physician, in situations where Missouri permits third trimester abortions, may be of assistance to the woman's physician in preserving the health and life of the child.By giving immediate medical attention to a fetus that is delivered alive, the second physician will assure that the State's interests are protected more fully than the first physician alone would be able to do. And given the compelling interest that the State has in preserving life, we cannot say that the Missouri requirement of a second physician in those unusual Page 462 U. S. 486 circumstances where Missouri permits a third trimester abortion is unconstitutional. Preserving the life of a viable fetus that is aborted may not often be possible, [Footnote 9] but the State legitimately may choose to provide safeguards for the comparatively few instances of live birth that occur. We believe the second physician requirement reasonably furthers the State's compelling interest in protecting the lives of viable fetuses, and we reverse the judgment of the Court of Appeals holding that § 188.030.3 is unconstitutional.IVIn regulating hospital services within the State, Missouri requires that"[a]ll tissue surgically removed with the exception of such tissue as tonsils, adenoids, hernial sacs and prepuces, shall be examined by a pathologist, either on the premises or by arrangement outside of the hospital."13 Mo.Admin.Code § 50-20.030(3)(A)7 (1977). With respect to abortions, whether performed in hospitals or in some other facility, § 188.047 requires the pathologist to "file a copy of the tissue report with the state division of health. . . ." See n 2, supra. The pathologist also is required to "provide a copy of the report to the abortion facility or hospital in which the abortion was performed or induced." Thus, Missouri appears to require that tissue following abortions, as well as from almost all other surgery performed in hospitals, must be submitted to a pathologist, not merely examined by the performing doctor. The narrow question before us is whether the State lawfully also may require the tissue removed following Page 462 U. S. 487 abortions performed in clinics as well as in hospitals to be submitted to a pathologist.On its face and in effect, § 188.047 is reasonably related to generally accepted medical standards and "further[s] important health-related state concerns." City of Akron, ante at 462 U. S. 430. As the Court of Appeals recognized, pathology examinations are clearly "useful and even necessary in some cases," because "abnormalities in the tissue may warn of serious, possibly fatal disorders." 655 F.2d at 870. [Footnote 10] As a rule, it is accepted medical practice to submit all tissue to the examination of a pathologist. [Footnote 11] This is particularly important following abortion, because questions remain as to the long-range Page 462 U. S. 488 complications and their effect on subsequent pregnancies. See App. 72-73 (testimony of Dr. Willard Cates, Jr.); Levin, Schoenbaum, Monson, Stubblefield, & Ryan, Association of Induced Abortion with Subsequent Pregnancy Loss, 243 J.A.M.A. 2495, 2499 (1980). Recorded pathology reports, in concert with abortion complication reports, provide a statistical basis for studying those complications. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 428 U. S. 81 (1976).Plaintiffs argue that the physician performing the abortion is as qualified as a pathologist to make the examination. This argument disregards the fact that Missouri requires a pathologist -- not the performing physician -- to examine tissue after almost every type of surgery. Although this requirement is in a provision relating to surgical procedures in hospitals, many of the same procedures included within the Missouri statute customarily are performed also in outpatient clinics. No reason has been suggested why the prudence required in a hospital should not be equally appropriate in such a clinic. Indeed, there may be good reason to impose stricter standards in this respect on clinics performing abortions than on hospitals. [Footnote 12] As the testimony in the District Page 462 U. S. 489 Court indicates, medical opinion differs widely on this question. See 4 Record 623; 6 Record 749-750, 798-800, 845-847; n 11, supra. There is substantial support for Missouri's requirement. In this case, for example, Dr. Bernard Nathanson, a widely experienced abortion practitioner, testified that he requires a pathologist examination after each of the 60,000 abortions performed under his direction at the New York Center for Reproductive and Sexual Health. He considers it"absolutely necessary to obtain a pathologist's report on each and every specimen of tissue removed from abortion, or for that matter from any other surgical procedure which involves the removal of tissue from the human body."App. 143-144. See also id. at 146-147 (testimony of Dr. Keitges); 5 Record 798-799 (testimony of Dr. Schmidt). [Footnote 13]In weighing the balance between protection of a woman's health and the comparatively small additional cost of a pathologist's examination, we cannot say that the Constitution requires that a State subordinate its interest in health to minimize to this extent the cost of abortions. Even in the early weeks of pregnancy,"[c]ertain regulations that have no significant impact on the woman's exercise of her right [to Page 462 U. S. 490 decide to have an abortion] may be permissible where justified by important state health objectives."City of Akron, ante at 462 U. S. 430. See Danforth, supra, at 428 U. S. 80-81. We think the cost of a tissue examination does not significantly burden a pregnant woman's abortion decision. The estimated cost of compliance for plaintiff Reproductive Health Services was $19.40 per abortion performed, 483 F. Supp. at 700, n. 48, and in light of the substantial benefits that a pathologist's examination can have, this small cost clearly is justified. In Danforth, this Court unanimously upheld Missouri's recordkeeping requirement as"useful to the State's interest in protecting the health of its female citizens, and [as] a resource that is relevant to decisions involving medical experience and judgment,"428 U.S. at 428 U. S. 81. [Footnote 14] We view the requirement for a pathology report as comparable and as a relatively insignificant burden. Accordingly, we reverse the judgment of the Court of Appeals on this issue.VAs we noted in City of Akron, the relevant legal standards with respect to parental consent requirements are not in dispute. See ante at 462 U. S. 439; Bellotti v. Baird, 443 U. S. 622, 443 U. S. 640-642, 443 U. S. 643-644 (1979) (Bellotti II) (plurality opinion); id. at 443 U. S. 656-657 (WHITE, J., dissenting). [Footnote 15] A State's interest in Page 462 U. S. 491 protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. It is clear, however, that"the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests. [Footnote 16] City of Akron, ante at 462 U. S. 439-440. [Footnote 17] The issue here is one purely of statutory construction: whether Missouri Page 462 U. S. 492 provides a judicial alternative that is consistent with these established legal standards. [Footnote 18]"The Missouri statute, § 188.028.2, [Footnote 19] in relevant part, provides:"(4) In the decree, the court shall for good cause:""(a) Grant the petition for majority rights for the purpose of consenting to the abortion; or""(b) Find the abortion to be in the best interests of the minor and give judicial consent to the abortion, setting forth the grounds for so finding; or""(c) Deny the petition, setting forth the grounds on which the petition is denied."On its face, § 188.028.2(4) authorizes Juvenile Courts [Footnote 20] to choose among any of the alternatives outlined in the section. Page 462 U. S. 493 The Court of Appeals concluded that a denial of the petition permitted in subsection (c)"would initially require the court to find that the minor was not emancipated and was not mature enough to make her own decision, and that an abortion was not in her best interests."655 F.2d at 858. Plaintiffs contend that this interpretation is unreasonable. We do not agree.Where fairly possible, courts should construe a statute to avoid a danger of unconstitutionality. The Court of Appeals was aware, if the statute provides discretion to deny permission to a minor for any "good cause," that arguably it would violate the principles that this Court has set forth. Ibid. It recognized, however, that before exercising any option, the Juvenile Court must receive evidence on "the emotional development, maturity, intellect and understanding of the minor." Mo.Rev.Stat. § 188.028.2(3) (Supp.1982). The court then reached the logical conclusion that "findings and the ultimate denial of the petition must be supported by a showing of good cause.'" 655 F.2d at 858. The Court of Appeals reasonably found that a court could not deny a petition "for good cause" unless it first found -- after having received the required evidence -- that the minor was not mature enough to make her own decision. See Bellotti II, 443 U.S. at 443 U. S. 643-644, 443 U. S. 647-648 (plurality opinion). We conclude that the Court of Appeals correctly interpreted the statute, and that § 188.028, as interpreted, avoids any constitutional infirmities. [Footnote 21] Page 462 U. S. 494VIThe judgment of the Court of Appeals, insofar as it invalidated Missouri's second trimester hospitalization requirement and upheld the State's parental and judicial consent provision, is affirmed. The judgment invalidating the requirement of a pathology report for all abortions and the requirement that a second physician attend the abortion of any viable fetus is reversed. We vacate the judgment upholding an award of attorney's fees for all hours expended by plaintiffs' attorneys and remand for proceedings consistent with Hensley v. Eckerhart, 461 U. S. 424 (1983).It is so ordered

U.S. Supreme CourtPlanned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983)Planned Parenthood Association ofKansas City, Missouri, Inc. v. AshcroftNo. 81-1255Argued November 30, 1982Decided June 15, 1983*462 U.S. 476SyllabusMissouri statutes require abortions after 12 weeks of pregnancy to be performed in a hospital (§ 188.025); require a pathology report for each abortion performed (§ 188.047); require the presence of a second physician during abortions performed after viability (§ 188.030.3); and require minors to secure parental consent or consent from the Juvenile Court for an abortion (§ 188.028). In an action challenging the constitutionality of these provisions, the District Court invalidated all provisions except § 188.047. The Court of Appeals reversed as to § 188.028 and § 188.047 but affirmed as to § 188.030.3 and § 188.025.Held: Section 188.025 is unconstitutional, but §§ 188.047, 188.030.3, and 188.028 are constitutional.664 F.2d 687, affirmed in part, reversed in part, vacated in part, and remanded.JUSTICE POWELL delivered the opinion of the Court with respect to Parts I and II, concluding that the second trimester hospitalization requirement of § 188.025 "unreasonably infringes upon a woman's constitutional right to obtain an abortion." Akron v. Akron Center of Reproductive Health, Inc., ante at 462 U. S. 439. 462 U. S. 481-482.JUSTICE POWELL, joined by THE CHIEF JUSTICE, concluded in Parts III, IV, and V that:1. The second physician requirement of § 188.030.3 is constitutional as reasonably furthering the State's compelling interest in protecting the lives of viable fetuses. Pp. 462 U. S. 482-486.2. The pathology report requirement of § 188.047 is constitutional. On its face and in effect, such requirement is reasonably related to generally accepted medical standards, and furthers important health-related state concerns. In light of the substantial benefits that a pathologist's examination can have, the small additional cost of such an examination does not significantly burden a pregnant woman's abortion decision. Pp. 462 U. S. 486-490 Page 462 U. S. 4773. Section 188.028 is constitutional. A State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. And as interpreted by the Court of Appeals to mean that the Juvenile Court cannot deny a minor's application for consent to an abortion "for good cause" unless the court first finds that the minor was not mature enough to make her own decision, § 188.028 provides a judicial alternative that is consistent with established legal standards. See Akron v. Akron Center for Reproductive Health, Inc., ante at 462 U. S. 439-440. Pp. 462 U. S. 490-493.JUSTICE O'CONNOR, joined by JUSTICE WHITE and JUSTICE REHNQUIST, concluded that:1. The second physician requirement of § 188.030.3 is constitutional because the State has a compelling interest, extant throughout pregnancy, in protecting and preserving fetal life. 462 U. S. 505.2. The pathology report requirement of § 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion, and its validity is not contingent on the trimester of pregnancy in which it is imposed. P. 462 U. S. 505.3. Assuming, arguendo, that the State cannot impose a parental veto on a minor's decision to undergo an abortion, the parental consent provision of § 188.028.2 is constitutional because it imposes no undue burden on any right that a minor may have to undergo an abortion. P. 462 U. S. 505.POWELL, J announced the judgment of the Court in Part VI and delivered the opinion of the Court with respect to Parts I and II, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which BURGER, C.J., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 462 U. S. 494. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE and REHNQUIST, JJ., joined, post, p. 462 U. S. 505. Page 462 U. S. 478

1997_96-1768

342 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.Henry J. Tashman argued the cause for respondent.With him on the brief was Gregory J. Kopta. *JUSTICE THOMAS delivered the opinion of the Court. Section 504(c) of the Copyright Act of 1976 permits a copyright owner "to recover, instead of actual damages and profits, an award of statutory damages ... , in a sum of not less than $500 or more than $20,000 as the court considers just." 90 Stat. 2585, as amended, 17 U. S. C. § 504(c)(1). In this case, we consider whether § 504(c) or the Seventh Amendment grants a right to a jury trial when a copyright owner elects to recover statutory damages. We hold that although the statute is silent on the point, the Seventh Amendment provides a right to a jury trial, which includes a right to a jury determination of the amount of statutory damages. We therefore reverse.IPetitioner C. Elvin Feltner owns Krypton International Corporation, which in 1990 acquired three television stations in the southeastern United States. Respondent Columbia Pictures Television, Inc., had licensed several television series to these stations, including "Who's the Boss," "Silver Spoons," "Hart to Hart," and "T. J. Hooker." After the stations became delinquent in making their royalty payments to Columbia, Krypton and Columbia entered into negotiations to restructure the stations' debt. These discussions were unavailing, and Columbia terminated the stations' li-*Howard B. Abrams, pro se, filed a brief as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Society of Composers, Authors and Publishers by I. Fred Koenigsberg and Philip H. Schaeffer; for the International Anticounterfeiting Coalition, Inc., by Peter W James, Anthony M. Keats, and Larry W McFarland; and for the National Football League et al. by Neil K. Roman and Robert A. Long, Jr.343cense agreements in October 1991. Despite Columbia's termination, the stations continued broadcasting the programs.Columbia sued Feltner, Krypton, the stations, various Krypton subsidiaries, and certain Krypton officers in Federal District Court alleging, inter alia, copyright infringement arising from the stations' unauthorized broadcasting of the programs. Columbia sought various forms of relief under the Copyright Act of 1976 (Copyright Act), 17 U. S. C. § 101 et seq., including a permanent injunction, § 502; impoundment of all copies of the programs, § 503; actual damages or, in the alternative, statutory damages, § 504; and costs and attorney's fees, § 505. On Columbia's motion, the District Court entered partial summary judgment as to liability for Columbia on its copyright infringement claims.1Columbia exercised the option afforded by § 504(c) of the Copyright Act to recover "Statutory Damages" in lieu of actual damages. In relevant part, § 504(c) provides:"STATUTORY DAMAGES-"(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to anyone work, ... in a sum of not less than $500 or more than $20,000 as the court considers just ...."(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $100,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of1 During the course of the litigation, Columbia dropped all claims against all parties except its copyright claims against Feltner.344344 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.copyright, the court [in] its discretion may reduce the award of statutory damages to a sum of not less than $200 .... " 17 U. s. C. § 504(c).The District Court denied Feltner's request for a jury trial on statutory damages, ruling instead that such issues would be determined at a bench trial. After two days of trial, the trial judge held that each episode of each series constituted a separate work and that the airing of the same episode by different stations controlled by Feltner constituted separate violations; accordingly, the trial judge determined that there had been a total of 440 acts of infringement. The trial judge further found that Feltner's infringement was willful and fixed statutory damages at $20,000 per act of infringement. Applying that amount to the number of acts of infringement, the trial judge determined that Columbia was entitled to $8,800,000 in statutory damages, plus costs and attorney's fees.The Court of Appeals for the Ninth Circuit affirmed in all relevant respects. Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc., 106 F.3d 284 (1997).2 Most importantly for present purposes, the court rejected Feltner's argument that he was entitled to have a jury determine statutory damages. Relying on Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (CA9 1977)-which held that § 25(b) of the Copyright Act of 1909, the statutory predecessor of § 504(c), required the trial judge to assess statutory damages 3-the Court of2 The Court of Appeals vacated and remanded (for further explanation) the District Court's award of costs and attorney's fees to Columbia. See 106 F. 3d, at 296.3 Under the 1909 Act, a copyright plaintiff could recover, "in lieu of actual damages and profits, such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph[,] such damages shall not exceed the sum of [$200] nor be less than the sum of [$50], and such damages shall in345Appeals held that § 504(c) does not grant a right to a jury determination of statutory damages. The court reasoned that "[i]f Congress intended to overrule Krofft by having the jury determine the proper award of statutory damages, it would have altered" the language "as the court considers just" in § 504(c). 106 F. 3d, at 293. The Court of Appeals further concluded that the "Seventh Amendment does not provide a right to a jury trial on the issue of statutory damages because an award of such damages is equitable in nature." Ibid. We granted certiorari. 521 U. S. 1151 (1997).IIBefore inquiring into the applicability of the Seventh Amendment, we must "'first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.'" Tull v. United States, 481 U. S. 412, 417, n. 3 (1987) (quoting Curtis v. Loether, 415 U. S. 189, 192, n. 6 (1974)). Such a construction is not possible here, for we cannot discern "any congressional intent to grant ... the right to a jury trial," 481 U. S., at 417, n. 3, on an award of statutory damages.4The language of § 504(c) does not grant a right to have a jury assess statutory damages. Statutory damages are to be assessed in an amount that "the court considers just." § 504(c)(1). Further, in the event that "the court finds" the infringement was willful or innocent, "the court in its discretion" may, within limits, increase or decrease the amount ofno other case exceed the sum of [$5,000] nor be less than the sum of [$250] ... " Act of Mar. 4, 1909, § 25(b), 35 Stat. 1081 (later amended and codified at 17 U. S. C. § 101(b)).4 The Courts of Appeals have unanimously held that § 504(c) is not susceptible of an interpretation that would avoid the Seventh Amendment question. See, e. g., Cass County Music Co. v. C. H. L. R., Inc., 88 F.3d 635, 641 (CA8 1996); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1014 (CA7 1991); Gnossos Music v. Mitken Inc., 653 F.2d 117, 119 (CA4 1981); see also Oboler v. Goldin, 714 F.2d 211, 213 (CA2 1983); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright § 14.04[C] (1997).346346 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.statutory damages. § 504(c)(2). These phrases, like the entire statutory provision, make no mention of a right to a jury trial or, for that matter, to juries at all.The word "court" in this context appears to mean judge, not jury. Cf. F. W Woolworth Co. v. Contemporary Arts, Inc., 344 U. S. 228, 232 (1952) (referring to the "judicial discretion" necessary for "the court's choice between a computed measure of damage and that imputed by" the Copyright Act of 1909 (emphasis added)). In fact, the other remedies provisions of the Copyright Act use the term "court" in contexts generally thought to confer authority on a judge, rather than a jury. See, e. g., § 502 ("court ... may ... grant temporary and final injunctions"); § 503(a) ("[T]he court may order the impounding ... of all copies or phonorecords"); § 503(b) ("As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords"); § 505 ("[T]he court in its discretion may allow the recovery of full costs" of litigation, and "the court may also award a reasonable attorney's fee"). In contrast, the Copyright Act does not use the term "court" in the subsection addressing awards of actual damages and profits, see § 504(b), which generally are thought to constitute legal relief. See Dairy Queen, Inc. v. Wood, 369 U. S. 469, 477 (1962) (action for damages for trademark infringement "subject to cognizance by a court of law"); see also Arnstein v. Porter, 154 F.2d 464, 468 (CA2 1946) (copyright action for damages is "triable at 'law' and by a jury as of right"); Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1014 (CA7 1991) ("little question that the right to a jury trial exists in a copyright infringement action when the copyright owner endeavors to prove and recover its actual damages"); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 12.10[B] (1997) ("beyond dispute that a plaintiff who seeks to recover actual damages is entitled to a jury trial" (footnotes omitted)).347Feltner relies on Lorillard v. Pons, 434 U. S. 575, 585 (1978), in which we held that the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. § 621 et seq., provides a statutory right to a jury trial in an action for unpaid wages even though the statute authorizes "the court ... to grant such legal or equitable relief as may be appropriate," § 626(b). That holding, however, turned on two crucial factors: The ADEA's remedial provisions were expressly to be enforced in accordance with the Fair Labor Standards Act of 1938, as amended, 29 U. S. C. § 101 et seq., which had been uniformly interpreted to provide a right to a jury trial, Lorillard v. Pons, 434 U. S., at 580-581; and the statute used the word "legal," which we found to be a "term of art" used in cases "in which legal relief is available and legal rights are determined" by juries, id., at 583. Section 504(c), in contrast, does not make explicit reference to another statute that has been uniformly interpreted to provide a right to jury trial and does not use the word "legal" or other language denoting legal relief or rights.5We thus discern no statutory right to a jury trial when a copyright owner elects to recover statutory damages. Accordingly, we must reach the constitutional question.IIIThe Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved .... " u. S. Const., Arndt. 7. Since Justice Story's time, the Court5 In addition, a copyright plaintiff may elect statutory damages "at any time before final judgment is rendered." § 504(c)(1). The parties agree, and we have found no indication to the contrary, that election may occur even after a jury has returned a verdict on liability and an award of actual damages. It is at least unlikely that Congress intended that a jury, having already made a determination of actual damages, should be reconvened to make a determination of statutory damages.348348 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.has understood "Suits at common law" to refer "not merely [to] suits, which the common law recognized among its old and settled proceedings, but [to] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830) (emphasis in original). The Seventh Amendment thus applies not only to common-law causes of action, but also to "actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty." Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989) (citing Curtis v. Loether, 415 U. S., at 193). To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought. See 492 U. S., at 42.Unlike many of our recent Seventh Amendment cases, which have involved modern statutory rights unknown to 18th-century England, see, e. g., Wooddell v. Electrical Workers, 502 U. S. 93 (1991) (alleged violations of union's duties under Labor Management Relations Act, 1947, and Labor-Management Reporting and Disclosure Act of 1959); Grarifinanciera v. Nordberg, supra (action to rescind fraudulent preference under Bankruptcy Act); Tull v. United States, 481 U. S. 412 (1987) (Government's claim for civil penalties under Clean Water Act); Curtis v. Loether, supra (claim under Title VIII of Civil Rights Act of 1968), in this case there are close analogues to actions seeking statutory damages under § 504(c). Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. More importantly, copyright suits for mone-349tary damages were tried in courts of law, and thus before juries.By the middle of the 17th century, the common law recognized an author's right to prevent the unauthorized publication of his manuscript. See, e. g., Stationers Co. v. Patentees, Carter's Rep. 89, 124 Eng. Rep. 842 (C. P. 1666). This protection derived from the principle that the manuscript was the product of intellectual labor and was as much the author's property as the material on which it was written. See Millar v. Taylor, 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (K. B. 1769) (opinion of Mansfield, C. J.) (common-law copyright derived from principle that "it is just, that an Author should reap the pecuniary Profits of his own ingenuity and Labour"); 1 W. Patry, Copyright Law and Practice 3 (1994). Actions seeking damages for infringement of common-law copyright, like actions seeking damages for invasions of other property rights, were tried in courts of law in actions on the case. See Millar v. Taylor, supra, at 23962397, 98 Eng. Rep., at 251. Actions on the case, like other actions at law, were tried before juries. See McClenachan v. McCarty, 1 Dall. 375, 378 (C. P. Phila. Cty. 1788); 5 J. Moore, Moore's Federal Practice '38.11[5] (2d ed. 1996); 1 J. Chitty, Treatise on Pleading and Parties to Actions 164 (1892).In 1710, the first English copyright statute, the Statute of Anne, was enacted to protect published books. 8 Anne ch. 19 (1710). Under the Statute of Anne, damages for infringement were set at "one Penny for every Sheet which shall be found in [the infringer's] custody, either printed or printing, published, or exposed to Sale," half ("one Moiety") to go to the Crown and half to the copyright owner, and were "to be recovered ... by Action of Debt, Bill, Plaint, or Information." § 1. Like the earlier practice with regard to common-law copyright claims for damages, actions seeking damages under the Statute of Anne were tried in courts of law. See350350 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.Beckford v. Hood, 7 T. R. 621, 627, 101 Eng. Rep. 1164, 1167 (K. B. 1798) (opinion of Kenyon, C. J.) ("[T]he statute having vested that right in the author, the common law gives the remedy by action on the case for the violation of it").The practice of trying copyright damages actions at law before juries was followed in this country, where statutory copyright protections were enacted even before adoption of the Constitution. In 1783, the Continental Congress passed a resolution recommending that the States secure copyright protections for authors. See U. S. Copyright Office, Copyright Enactments: Laws Passed in the United States Since 1783 Relating to Copyright, Bulletin No.3, p. 1 (rev. ed. 1963) (hereinafter Copyright Enactments). Twelve States (all except Delaware) responded by enacting copyright statutes, each of which provided a cause of action for damages, and none of which made any reference to equity jurisdiction. At least three of these state statutes expressly stated that damages were to be recovered through actions at law, see id., at 2 (in Connecticut, damages for double the value of the infringed copy "to be recovered ... in any court of law in this State"); id., at 17 (in Georgia, similar damages enforceable "in due course of law"); id., at 19 (in New York, similar damages enforceable in "any court of law"), while four others provided that damages would be recovered in an "action of debt," a prototypical action brought in a court of law before a jury. See F. Maitland, Forms of Action at Common Law 357 (1929) (hereinafter Maitland); see Copyright Enactments 4-9 (in Massachusetts, New Hampshire, and Rhode Island, damages enforceable by "action of debt"); id., at 12 (in South Carolina, damages of one shilling per sheet enforceable by "debt, bill, plaint or information"). Although these statutes were short-lived, and hence few courts had occasion to interpret them, the available evidence suggests that the practice was for copyright actions seeking damages to be tried to a jury. See Hudson & Goodwin v. Patten, 1 Root 133, 134351(Conn. Super. Ct. 1789) (jury awarded copyright owner £100 under Connecticut copyright statute).Moreover, three of the state statutes specifically authorized an award of damages from a statutory range, just as § 504(c) does today. See Copyright Enactments 4 (in Massachusetts, damages of not less than £5 and not more than £3,000); id., at 8 (in New Hampshire, damages of not less than £5 and not more than £1,000); id., at 9 (in Rhode Island, damages of not less than £5 and not more than £3,000). Although we have found no direct evidence of the practice under these statutes, there is no reason to suppose that such actions were intended to deviate from the traditional practice: The damages were to be recovered by an "action of debt," see id., at 4-9, which was an action at law, see Maitland 357.In 1790, Congress passed the first federal copyright statute, the Copyright Act of 1790, which similarly authorized the awarding of damages for copyright infringements. Act of May 31, 1790, ch. 15, §§ 2, 6, 1 Stat. 124, 125. The Copyright Act of 1790 provided that damages for copyright infringement of published works would be "the sum of fifty cents for every sheet which shall be found in [the infringer's] possession, ... to be recovered by action of debt in any court of record in the United States, wherein the same is cognizable." § 2. Like the Statute of Anne, the Copyright Act of 1790 provided that half ("one moiety") of such damages were to go to the copyright owner and half to the United States. For infringement of an unpublished manuscript, the statute entitled a copyright owner to "all damages occasioned by such injury, to be recovered by a special action on the case founded upon this act, in any court having cognizance thereof." § 6.There is no evidence that the Copyright Act of 1790 changed the practice of trying copyright actions for damages in courts of law before juries. As we have noted, actions on the case and actions of debt were actions at law for which a352352 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.jury was required. See supra, at 349, 350.6 Moreover, actions to recover damages under the Copyright Act of 1831which differed from the Copyright Act of 1790 only in the amount (increased to $1 from 50 cents) authorized to be recovered for certain infringing sheets-were consistently tried to juries. See, e. g., Backus v. Gould, 7 How. 798, 802 (1849) (jury awarded damages of $2,069.75); Reed v. Carusi, 20 F. Cas. 431, 432 (No. 11,642) (CC Md. 1845) (jury awarded damages of $200); Millett v. Snowden, 17 F. Cas. 374, 375 (No. 9,600) (SDNY 1844) (jury awarded damages of $625); Dwight v. Appleton, 8 F. Cas. 183, 185 (No. 4,215) (SDNY 1843) (jury awarded damages of $2,000).Columbia does not dispute this historical evidence. In fact, Columbia makes no attempt to draw an analogy between an action for statutory damages under § 504(c) and any historical cause of action-including those actions for monetary relief that we have characterized as equitable, such as actions for disgorgement of improper profits. See Teamsters v. Terry, 494 U. S. 558, 570-571 (1990); Tull v. United States, 481 U. S., at 424. Rather, Columbia merely contends that statutory damages are clearly equitable in nature.We are not persuaded. We have recognized the "general rule" that monetary relief is legal, Teamsters v. Terry, supra, at 570, and an award of statutory damages may serve purposes traditionally associated with legal relief, such as compensation and punishment. See Curtis v. Loether, 415 U. S., at 196 (actual damages are "traditional form of relief offered in the courts of law"); Tull v. United States, 481 U. S., at 4226 The Copyright Act of 1790 did not provide for equitable remedies at all, and in Stevens v. Gladding, 17 How. 447 (1855), we held that, even after Congress had provided for equity jurisdiction under the Copyright Act, see Act of Feb. 15, 1819, ch. 19, 3 Stat. 481, the statute's damages provision could not be enforced through a suit in equity. 17 How., at 455; see also Callaghan v. Myers, 128 U. S. 617, 663 (1888) (Stevens v. Gladding determined that "the penalties given by § 7 of the copyright act of 1831 cannot be enforced in a suit in equity").353("Remedies intended to punish culpable individuals ... were issued by courts of law, not courts of equity"). Nor, as we have previously stated, is a monetary remedy rendered equitable simply because it is "not fixed or readily calculable from a fixed formula." Id., at 422, n. 7. And there is historical evidence that cases involving discretionary monetary relief were tried before juries. See, e. g., Coryell v. Colbaugh, 1 N. J. L. 77 (1791) (jury award of "exemplary damages" in an action on a promise of marriage). Accordingly, we must conclude that the Seventh Amendment provides a right to a jury trial where the copyright owner elects to recover statutory damages.The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. It has long been recognized that "by the law the jury are judges of the damages." Lord Townshend v. Hughes, 2 Mod. 150, 151, 86 Eng. Rep. 994, 994-995 (C. P. 1677). Thus in Dimick v. Schiedt, 293 U. S. 474 (1935), the Court stated that "the common law rule as it existed at the time of the adoption of the Constitution" was that "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it." Id., at 480 (internal quotation marks and citations omitted). And there is overwhelming evidence that the consistent practice at common law was for juries to award damages. See, e. g., Duke of York v. Pilkington, 2 Show. 246, 89 Eng. Rep. 918 (K. B. 1760) (jury award of £100,000 in a slander action); Wilkes v. Wood, Lofft 1, 19, 98 Eng. Rep. 489, 499 (C. P. 1763) (jury award of £1,000 in an action of trespass); Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763) (upholding jury award of £300 in an action for trespass, assault and imprisonment); Genay v. Norris, 1 S. C. L. 6, 7 (1784) (jury award of £400); Coryell v. Colbaugh, supra (sustaining correctness of jury award of exemplary damages in an action on a promise of marriage); see also K. Redden, Punitive Dam-354354 FELTNER v. COLUMBIA PICTURES TELEVISION, INC.ages § 2.2, p. 27 (1980) (describing "primacy of the jury in the awarding of damages").More specifically, this was the consistent practice in copyright cases. In Hudson & Goodwin v. Patten, 1 Root, at 134, for example, a jury awarded a copyright owner £100 under the Connecticut copyright statute, which permitted damages in an amount double the value of the infringed copy. In addition, juries assessed the amount of damages under the Copyright Act of 1831, even though that statute, like the Copyright Act of 1790, fixed damages at a set amount per infringing sheet. See Backus v. Gould, supra, at 802 (jury awarded damages of $2,069.75); Reed v. Carusi, supra, at 432 (same, but $200); Dwight v. Appleton, supra, at 185 (same, but $2,000); Millett v. Snowden, supra, at 375 (same, but $625).Relying on Tull v. United States, supra, Columbia contends that the Seventh Amendment does not provide a right to a jury determination of the amount of the award. In Tull, we held that the Seventh Amendment grants a right to a jury trial on all issues relating to liability for civil penalties under the Clean Water Act, 33 U. S. C. §§ 1251, 1319(d),7 see 481 U. S., at 425, but then went on to decide that Congress could constitutionally authorize trial judges to assess the amount of the civil penalties, see id., at 426-427.8 According to Columbia, Tull demonstrates that a jury determination of the amount of statutory damages is not necessary "to preserve 'the substance of the common-law right of trial by jury.'" Id., at 426 (quoting Colgrove v. Battin, 413 U. S. 149, 157 (1973)).7 Section 1319(d) of the Clean Water Act provided that violators of certain sections of the Act "shall be subject to a civil penalty not to exceed $10,000 per day" during the period of the violation. 481 U. S., at 414.8 This portion of our opinion was arguably dicta, for our holding that there was a right to a jury trial on issues relating to liability required us to reverse the lower court's liability determination.355In Tull, however, we were presented with no evidence that juries historically had determined the amount of civil penalties to be paid to the Government.9 Moreover, the awarding of civil penalties to the Government could be viewed as analogous to sentencing in a criminal proceeding. See 481 U. S., at 428 (SCALIA, J., concurring in part and dissenting in part).l0 Here, of course, there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. Tull is thus inapposite. As a result, if a party so demands, a jury must determine the actual amount of statutory damages under § 504(c) in order "to preserve 'the substance of the commonlaw right of trial by jury.''' Id., at 426.***For the foregoing reasons, we hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself. The judgment below is reversed, and we remand the case for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusFELTNER v. COLUMBIA PICTURES TELEVISION, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-1768. Argued January 21, 1998-Decided March 31,1998Respondent Columbia Pictures Television, Inc., terminated agreements licensing several television series to three television stations owned by petitioner Feltner after the stations' royalty payments became delinquent. When the stations continued to broadcast the programs, Columbia sued Feltner and others for, inter alia, copyright infringement. Columbia won partial summary judgment as to liability on its copyright infringement claims and then exercised the option afforded by § 504(c) of the Copyright Act of 1976 (Act) to recover statutory damages in lieu of actual damages. The District Court denied Feltner's request for a jury trial, and awarded Columbia statutory damages following a bench trial. The Ninth Circuit affirmed, holding that neither § 504(c) nor the Seventh Amendment provides a right to a jury trial on statutory damages.Held:1. There is no statutory right to a jury trial when a copyright owner elects to recover statutory damages. Section 504(c) makes no mention of a right to a jury trial or to juries at all, providing instead that damages should be assessed in an amount "the court deems just," and that in the event that "the court finds" an infringement that is willful or innocent, "the court in its discretion" may increase or decrease the statutory damages. The word "court" in this context appears to mean judge, not jury. Other remedies provisions in the Act use the term "court" in contexts generally thought to confer authority on a judge, and the Act does not use the term "court" when addressing awards of actual damages and profits, see § 504(b), which generally are thought to constitute legal relief, Dairy Queen, Inc. v. Wood, 369 U. S. 469, 477. Feltner's reliance on Lorillard v. Pons, 434 U. S. 575, 585, for a contrary interpretation is misplaced. There being no statutory right to a jury trial on statutory damages, the constitutional question must be addressed. See Tull v. United States, 481 U. S. 412, 417. Pp. 345-347.2. The Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c), including the amount itself. Pp.347-355.341(a) The Seventh Amendment applies to both common-law causes of action and to statutory actions more analogous to cases tried in 18thcentury courts of law than to suits customarily tried in courts of equity or admiralty. Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42. To determine the proper analogue, this Court examines both the nature of the statutory action and the remedy sought. See ibid. Pp. 347-348.(b) There are close 18th-century analogues to § 504(c) statutory damages actions. Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. More importantly, copyright suits for monetary damages were tried in courts of law, and thus before juries. There is no evidence that the first federal copyright law, the Copyright Act of 1790, changed this practice; and damages actions under the Copyright Act of 1831 were consistently tried before juries. The Court is unpersuaded by Columbia's contention that, despite this undisputed historical evidence, statutory damages are clearly equitable in nature. Pp. 348-353.(c) The right to a jury trial includes the right to have a jury determine the amount of statutory damages, if any, awarded to the copyright owner. There is overwhelming evidence that the consistent commonlaw practice was for juries to award damages. More specifically, this was the consistent practice in copyright cases. Tull v. United States, supra-in which this Court determined that, although the Seventh Amendment grants a right to a jury trial on liability for civil penalties under the Clean Water Act, Congress could constitutionally authorize trial judges to assess the amount of the civil penalties-is inapposite to this case. In Tull, there was no evidence that juries historically had determined the amount of civil penalties to be paid to the Government, and the awarding of such penalties could be viewed as analogous to sentencing in a criminal proceeding. Here there is no similar analogy, and there is clear and direct historical evidence that juries, both as a general matter and in copyright cases, set the amount of damages awarded to a successful plaintiff. Pp. 353-355.106 F.3d 284, reversed and remanded.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 355.John G. Roberts, Jr., argued the cause for petitioner.With him on the briefs were David G. Leitch and Jonathan S. Franklin.342Full Text of Opinion

1958_58

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question in this case is whether the Court of Appeals for the Eighth Circuit, under the applicable principles hereinafter discussed, properly held that it was error to submit to a jury's determination whether an insured died as a result of suicide or accident. Page 359 U. S. 438Petitioner is the beneficiary of two policies issued by respondent in 1944 and 1949 insuring the life of her now-deceased husband, William Dick. Each policy contained a clause which provided that double indemnity would be payable upon receipt of proof that the death of the insured "resulted directly, and independently of all other causes, from bodily injury effected solely through external violent and accidental means," but that the double indemnity would not be payable if the insured's death resulted from "self-destruction, whether sane or insane."Mr. Dick met his death while alone in the silage shed of his farm. The death resulted from two wounds caused by the discharge of his shotgun. [Footnote 1] Petitioner filed proofs of death, but respondent rejected her claim for double indemnity payments on the ground that Mr. Dick had committed suicide. Petitioner then filed suit in the North Dakota courts. Her complaint set forth the policies in issue, the facts surrounding her husband's death, an allegation that the death was accidental, and a demand for payment. Respondent removed the case to the United States District Court for the District of North Dakota on the grounds of diversity of citizenship and jurisdictional amount. It then filed an answer to the complaint in which it set up suicide as an affirmative defense to the demand for double indemnity payments. Respondent admitted liability for the face amounts of the policies ($7,500), and no issue is presented concerning those amounts.Trial proceeded before the district judge and jury. The evidence showed that the Dicks, who had been happily married since 1926, lived on a farm near Lisbon, North Page 359 U. S. 439 Dakota, where they raised sheep, cattle, and field crops. Five of the six quarter sections of the farm were unmortgaged, and Mr. Dick, who was not known to have any financial problems, had nearly $1,000 in the bank. He was known as a "husky," "strong," "jolly" man who was seldom moody. "If he had anything on his chest, he would get it off and forget about it." Dick got along well with his neighbors, and was well liked in the community. He was 47 at the time of his death. He was five feet seven inches tall, weighed approximately 165 pounds, and was generally healthy. The coroner, who was also Dick's personal doctor, testified that Dick was a mature, muscular, physically able workman who, three weeks before his death, was bright and cheerful. About a year and a half before his death, Mr. Dick visited the doctor and complained that he felt tired and pepless. His condition was diagnosed as mild to moderate non-specific prostatitis, for which he received sulfa treatments and hormone shots. But the record is devoid of evidence that the condition was serious or particularly painful, or that Mr. Dick was especially concerned with it. The Dicks reared five children. One daughter still lived with them, and attended high school in nearby Elliott. Dick got along well with his whole family.The evening before he died, the family returned from Elliott and ate ice cream and watched television together. Mr. Dick helped his daughter with a school problem in general science, explaining to her the intricacies of a transformer. He slept soundly that night. He intended to help his cousin -- a neighbor -- make sausage the following day. He arose the next morning, milked the cows, ate a hearty breakfast, and spoke with his wife about their plans for the day. He said nothing to indicate that he contemplated doing anything out of the ordinary. About 8:30 a.m., Mrs. Dick drove their daughter to school. Mr. Dick backed the car out of the garage for his wife and said Page 359 U. S. 440 goodbye in a normal way. He was then in the process of feeding milk to the pigs and silage to the cattle.Mrs. Dick returned in about a half hour, and proceeded to work in the house. Later, when she thought it was time to leave for the cousin's house, she went to locate Mr. Dick. She walked to the barn and called for him, but there was no answer. She then went to the little 8 foot by 12 foot silage shed adjacent to the barn, and saw Mr. Dick lying on the floor. He was fully clothed for the zero weather Lisbon was then experiencing, and he wore bulky gloves and a heavy jacket which was fully zipped up. Near him lay his shotgun. A good part of his head appeared blown off, and she knew from his appearance that he was dead. She hurriedly returned to the house and called Mr. Dick's brother, who lived nearby. He came immediately, and, at Mrs. Dick's direction, went to the silage shed. There he saw Mr. Dick lying with his head to the northwest and his feet to the southeast of the shed. The body was along the south wall with the feet near the corner. Later, when he examined the shed more closely, he found a concentration of shotgun pellets high in the northwest corner of the shed and other pellets four to five feet from the floor in the southeast corner. He also noticed a sprinkle of frozen silage on the floor of the shed and on the steps leading to the door from the shed.James Dick, the deceased's nephew, also responded to Mrs. Dick's call. He stated that, upon arriving at the Dick's house, he saw a tub newly filled with ground corn in the silage yard, and that normally his uncle fed silage with a topping of ground corn to the cattle. He also stated that the cattle were just then finishing the silage presumably laid out by Mr. Dick before his death.At about 11 a.m., the sheriff arrived. Mr. Dick was still lying where he had died. The sheriff examined Mr. Dicks shotgun and found two discharged shells in its chamber. The gun was dry and clean, and there were no Page 359 U. S. 441 bloodstains on it or on the gloves which Dick was still wearing. The sheriff also noticed some of the shot patterns found by Dick's brother, and saw some brain tissue splattered on the southeast corner. He found a screwdriver lying on the floor about a foot from the gun. The Dicks use the screwdriver to open and close the door to the silage shed, because the doorknob was missing.Soon thereafter, the coroner arrived. He testified that Mr. Dick's body contained a shotgun wound on the left side and one on the head. The body wound was mortal, but not immediately fatal. It consisted of a gouged out wound on the left lateral chest wall which removed skin, fat, rib muscles and portions of rib from the body. In addition, other ribs were fractured, and Dick's left lung was collapsed. In the coroner's opinion, it was the type of wound which would have had to result in immense pain, although it probably would not have made it impossible for Dick again to discharge the gun. The wound to the head caused immediate death. According to the testimony of the sheriff and a member of the Fargo police department, both wounds were received from the front. In the sheriff's opinion, the chest wound was received from an upward shot into Dick's body, but this testimony conflicted with another statement of the sheriff indicating that the wound was received from a downward shot.It was clear from the testimony that Mr. Dick was an experienced hunter. Petitioner testified that he kept the shotgun in the barn because of attacks on his sheep by vicious dogs during the preceding year. A number of the sheep had been killed in this manner. In addition, Dick had mentioned seeing foxes near the barn. Mrs. Dick testified that, when her husband went hunting, he sometimes borrowed his father's gun because he didn't trust his own. She was with him once when the gun wouldn't fire, and had been told that occasionally it fired accidentally. In addition, Dick's brother testified that, while hunting Page 359 U. S. 442 with Dick, he heard a shot at an unexpected time which Dick explained as an accidental discharge that occurred "once in a while." The gun was over 26 years old.The sheriff testified that, after the death, he tested Dick's gun by cocking and dropping it a number of times. [Footnote 2] The triggers did not release on any of these occasions. The sheriff also explained that the gun had a safety, and could not discharge with the safety on. The safety was off during each of his tests. Finally, the sheriff stated that each trigger had approximately a seven-pound trigger pull.No suicide notes were found. Mr. Dick had said nothing to his relatives or friends concerning suicide. He left no will.At the conclusion of the evidence, respondent unsuccessful moved for a directed verdict. The court charged the jury that, under state law, accidental death should be presumed, and that respondent had the burden to show by a fair preponderance of the evidence that Dick committed suicide. The jury returned a verdict of $7,500 for petitioner. Respondent's motions for judgment notwithstanding the verdict and for new trial were denied.In this Court and before the Court of Appeals, both parties assumed that the propriety of the District Court's refusal to grant respondent's motions was a matter of North Dakota law. Under that law, it is clear that, under the circumstances present in this case, a presumption arises, which has the weight of affirmative evidence, that death was accidental. Svihovec v. Woodmen Accident Page 359 U. S. 443 Co., 69 N.D. 259, 285 N.W. 447. See Paulsen v. Modern Woodmen of America, 21 N.D. 235, 130 N.W. 231; Clemens v. Royal Neighbors of America, 14 N.D. 116, 103 N.W. 402; Stevens v. Continental Casualty Co., 12 N.D. 463, 97 N.W. 862. [Footnote 3] Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide. Svihovec v. Woodmen Accident Co., supra. Under North Dakota law, this presumption does not disappear once the insurer presents any evidence of suicide. Ibid. Rather, the presumed fact (accidental death) continues, and a plaintiff is entitled to affirmative instructions to the jury concerning its existence and weight. [Footnote 4] This is not to say that, under North Dakota law, the presumption of accidental death may not be overcome by so much evidence that the insurer is entitled to a directed verdict. For it is clear that, where "there is no evidence in the record that can be said to be inconsistent with the conclusion of death by suicide," or"the facts and circumstances surrounding the death [can]not be reconciled with any reasonable theory of accidental or nonintentional injury,"the state court may direct a verdict for the insurer even though the insurer is charged with the burden of proving that death was caused by suicide. [Footnote 5] These state rules determine when Page 359 U. S. 444 the evidence in a "suicide" case is sufficient to go to a jury. They are not directed at determining when the presumption of accidental death is rebutted, and thus excised from the case, because, as stated above, the presumed fact of accidental death continues throughout the trial, and has the weight of affirmative evidence.The Court of Appeals, in its opinion, reviewed the evidence in detail and resolved at least one disputed point in respondent's favor. It found, as "definitely established by the evidence," that "neither barrel [of the shotgun] could have been fired unless someone or something either pulled or pushed one of the triggers." It stated that"[o]ne can believe that even an experienced hunter might accidentally shoot himself once, but the asserted theory that he could accidentally shoot himself first with one barrel and then with the other stretches credulity beyond the breaking point. [Footnote 6]"And it concluded that the facts and circumstances could not"be reconciled with any reasonable theory of accident, and that, under the evidence, the question whether the death was accidental was not a question of fact for the jury."Judgment was reversed with directions to dismiss the complaint. We granted certiorari, 357 U.S. 925.Lurking in this case is the question whether it is proper to apply a state or federal test of sufficiency of the evidence to support a jury verdict where federal jurisdiction Page 359 U. S. 445 is rested on diversity of citizenship. On this question, the lower courts are not in agreement. Compare Rowe v. Pennsylvania Greyhound Lines, Inc., 231 F.2d 922; Cooper v. Brown, 126 F.2d 874; Lovas v. General Motors Corp., 212 F.2d 805, with Davis Frozen Foods, Inc. v. Norfolk Southern Ry. Co., 204 F.2d 839; Reuter v. Eastern Air Lines, 226 F.2d 443; Diederich v. American News Co., 128 F.2d 144. And see Morgan, Choice of Law Governing Proof, 58 Harv.L.Rev. 153, 174, and 5 Moore's Federal Practice (2d ed. 1951) § 38.10. But the question is not properly here for decision, because, in the briefs and arguments in this Court, both parties assumed that the North Dakota standard applied. [Footnote 7] Moreover, although the Court of Appeals appears to have applied the state standard, that court did not discuss the issue. Under these circumstances, we will not reach out to decide this important question, particularly where, in the context of this case, the two standards are substantially the same. [Footnote 8] A decision as to which standard should be applied can well be left to another case where the question is briefed and argued. This case can be decided on the simple issue stated at the outset of the opinion.In our view, the Court of Appeals improperly reversed the judgment of the District Court. It committed its basic error in resolving a factual dispute in favor of respondent that the shotgun would not fire unless someone or something pulled the triggers. Petitioner's evidence on this score, despite the "tests" performed by the sheriff, could support a jury conclusion that the gun might have Page 359 U. S. 446 fired accidentally from other causes. Once an accidental discharge is possible, a jury could rationally conceive of a number of explanations of accidental death which were consistent with evidence which the jury might well have believed showed the overwhelming improbability of suicide. The record indisputably shows lack of motive -- in fact, there is affirmative evidence from which the jury could infer that Dick was a most unlikely suicide prospect. He was relatively healthy, financially secure, happily married, well liked, and apparently emotionally stable. He left nothing behind to indicate that he had committed suicide, and nothing in his conduct before death indicated an intention to destroy himself. The timing of the death, while in the midst of normal chores and immediately preceding a planned appointment with neighbors, militates against such a conclusion. Dick's presence in the shed and the accessibility of the gun are explicable in view of the fact that dogs had previously attacked his sheep and the fact that the door in the shed provided a convenient exit to the adjoining fields. And a jury could well believe it improbable that a man would not even bother to remove his bulky gloves, or thick jacket, when he intended to commit suicide, even though those articles of clothing made it difficult to turn the gun on himself.In a case like this one, North Dakota presumes that death was accidental and places on the insurer the burden of proving that death resulted from suicide. Stevens v. Continental Casualty Co., supra; Paulsen v. Modern Woodmen of America, supra. Under the Erie rule, [Footnote 9] presumptions (and their effects) and burden of proof are "substantive," and hence respondent was required to shoulder the burden during the instant trial. Palmer v. Hoffman, 318 U. S. 109; Cities Service Oil Co. v. Dunlap, 308 U. S. 208. And see Balchunas v. Palmer, 151 F.2d Page 359 U. S. 447 842; Sylvania Electric Products v. Barker, 228 F.2d 842; Matsumoto v. Chicago & N.W. Ry. Co., 168 F.2d 496. After all the evidence was in, the district judge, who was intimately concerned with the trial and who has a first-hand knowledge of the applicable state principles, believed that the case should go to the jury. Under all the circumstances, we believe that he was correct, and that reasonable men could conclude that the respondent failed to satisfy its burden of showing that death resulted from suicide.Reversed

U.S. Supreme CourtDick v. New York Life Insurance Co., 359 U.S. 437 (1959)Dick v. New York Life Insurance Co.No. 58Argued January 12, 1959Decided May 18, 1959359 U.S. 437SyllabusIn this case, federal jurisdiction was based on diversity of citizenship and the issue was whether an insured died as a result of suicide or accident. He was alone when he met his death from two wounds from his double-barreled shotgun. In such circumstances, applicable state law presumes that death was accidental and places on the insurer the burden of proving that death resulted from suicide. So instructed, the jury found that death was accidental, and returned a verdict for the beneficiary. The evidence was entirely circumstantial, and could support such a verdict. The District Court denied the insurer's motions for a directed verdict, judgment notwithstanding the verdict, and a new trial, and entered judgment for the beneficiary. After reviewing the record, the Court of Appeals concluded that the gun could not have been fired without someone or something pulling or pushing the trigger, and that the evidence did not justify submitting the issue to the jury, and it reversed with directions to dismiss the complaint.Held: the District Court properly submitted the issue to the jury, and the judgment of the Court of Appeals is reversed. Pp. 359 U. S. 437-447.252 F.2d 43, reversed.

1976_75-353

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in these cases, 425 U.S. 910 (1976), to consider, among other issues, whether an unsuccessful tender offeror in a contest for control of a corporation has an implied cause of action for damages under § 14(e) of the Securities Exchange Act of 1934, as added by § 3 of the Williams Act of 1968, 82 Stat. 457, 15 U.S.C. § 78n(e), or under Securities and Exchange Commission (SEC) Rule 10b-6, 17 CFR § 240.10b-6 (1976), based on alleged antifraud violations by the successful competitor, its investment adviser, and individuals constituting the management of the target corporation.IBackgroundThe factual background of this complex contest for control, including the protracted litigation culminating in the cases now before us, is essential to a full understanding of the contending parties' claims.The three petitions present questions of first impression, arising out of a "sophisticated and hard-fought contest" for control of Piper Aircraft Corp., a Pennsylvania-based manufacturer of light aircraft. Piper's management consisted principally of members of the Piper family, who owned 31% of Piper's outstanding stock. Chris-Craft Industries, Inc., a diversified manufacturer of recreational products, attempted to secure voting control of Piper through cash and exchange tender offers for Piper common stock. Chris-Craft's takeover attempt failed, and Bangor Punta Corp. (Bangor or Bangor Punta), with the support of the Piper family, obtained control of Piper in September, 1969. Chris-Craft brought suit under § 14(e) of the Securities Exchange Act of 1934 and Rule 10b-6 alleging that Bangor Punta achieved control of the target corporation as a result of violations of the federal securities laws by the Piper family, Bangor Punta, and Bangor Punta's Page 430 U. S. 5 underwriter, First Boston Corp., who together had successfully repelled Chris-Craft's takeover attempt.The struggle for control of Piper began in December, 1968. At that time, Chris-Craft began making cash purchases of Piper common stock. By January 22, 1969, Chris-Craft had acquired 203,700 shares, or approximately 13% of Piper's 1,644,790 outstanding shares. On the next day, following unsuccessful preliminary overtures to Piper by Chris-Craft's president, Herbert Siegel, Chris-Craft publicly announced a cash tender offer for up to 300,000 Piper shares [Footnote 1] at $65 per share, which was approximately $12 above the then-current market price. Responding promptly to Chris-Craft's bid, Piper's management met on the same day with the company's investment banker, First Boston, and other advisers. On January 24, the Piper family decided to oppose Chris-Craft's tender offer. As part of its resistance to Chris-Craft's takeover campaign, Piper management sent several letters to the company's stockholders during January 25-27, arguing against acceptance of Chris-Craft's offer. On January 27, a letter to shareholders from W. T. Piper, Jr., president of the company, stated that the Piper Board "has carefully studied this offer and is convinced that it is inadequate, and not in the best interests of Piper's shareholders."In addition to communicating with shareholders, Piper entered into an agreement with Grumman Aircraft Corp. on January 29 whereby Grumman agreed to purchase 300,000 authorized but unissued Piper shares at $65 per share. The agreement increased the amount of stock necessary for Chris-Craft to secure control, and thus rendered Piper less vulnerable to Chris-Craft's attack. A Piper press release and letter to shareholders announced the Grumman transaction, but failed to state either that Grumman had a "put" or option to sell the shares back to Piper at cost, plus interest, or that Page 430 U. S. 6 Piper was required to maintain the proceeds of the transaction in a separate fund free from liens.Despite Piper's opposition, Chris-Craft succeeded in acquiring 304,606 shares by the time its cash tender offer expired on February 3. To obtain the additional 17% of Piper stock needed for control, Chris-Craft decided to make an exchange offer of Chris-Craft securities for Piper stock. Although Chris-Craft filed a registration statement and preliminary prospectus with the SEC in late February, 1969, the exchange offer did not go into effect until May 15, 1969.In the meantime, Chris-Craft made cash purchases of Piper stock on the open market until Mr. Siegel, the company's president, was expressly warned by SEC officials that such purchases, when made during the pendency of an exchange offer, violated SEC Rule 10b-6. [Footnote 2] At Mr. Siegel's direction, Chris-Craft immediately complied with the SEC's directive and canceled all outstanding orders for purchases of Piper stock.While Chris-Craft's exchange offer was in registration, Piper, in March, 1969 terminated the agreement with Grumman Page 430 U. S. 7 and entered into negotiations with Bangor Punta. Bangor had initially been contacted by First Boston about the possibility of a Piper takeover in the wake of Chris-Craft's initial cash tender offer in January. With Grumman out of the picture, the Piper family agreed on May 8, 1969, to exchange their 31% stockholdings in Piper for Bangor Punta securities. Bangor also agreed to use its best efforts to achieve control of Piper by means of an exchange offer of Bangor securities for Piper common stock. A press release issued the same day announced the terms of the agreement, including a provision that the forthcoming exchange offer would involve Bangor securities to be valued, in the judgment of First Boston, "at not less than $80 per Piper share." [Footnote 3]While awaiting the effective date of its exchange offer, Bangor, in mid-May, 1969, purchased 120,200 shares of Piper stock in privately negotiated, off-exchange transactions from three large institutional investors. All three purchases were made after the SEC's issuance of a release on May 5 announcing proposed Rule 10b-13, a provision which, upon becoming effective in November, 1969, would expressly prohibit a tender offeror from making purchases of the target company's stock during the pendency of an exchange offer. The SEC release stated that the proposed rule was, "in effect, a codification of existing interpretations under Rule 10b-6," [Footnote 4] the provision invoked by SEC officials against Mr. Siegel of Chris-Craft a month earlier. Bangor officials, although aware of the release at the time of the three off-exchange purchases, Page 430 U. S. 8 made no attempt to secure an exemption for the transactions from the SEC, as provided by Rule 10b-6(f). The SEC, however, took no action concerning these purchases as it had with respect to Chris-Craft's open market transactions.With these three block purchases, amounting to 7% of Piper stock, Bangor Punta, in mid-May, took the lead in the takeover contest. The contest then centered upon the competing exchange offers. Chris-Craft's first exchange offer, which began in mid-May, 1969, failed to produce tenders of the specified minimum number of Piper shares (80,000). Meanwhile, Bangor Punta's exchange offer, which had been announced on May 8, became effective on July 18. The registration materials which Bangor filed with the SEC in connection with the exchange offer included financial statements, reviewed by First Boston, representing that one of Bangor's subsidiaries, the Bangor & Aroostock Railroad (BAR), had a value of $18.4 million. This valuation was based upon a 1965 appraisal by investment bankers after a proposed sale of the BAR failed to materialize. The financial statements did not indicate that Bangor was considering the sale of the BAR, or that an offer to purchase the railroad for $5 million had been received. [Footnote 5]In the final phase of the see-saw of competing offers, Chris-Craft modified the terms of its previously unsuccessful exchange offer to make it more attractive. The revised offer succeeded in attracting 112,089 additional Piper shares, while Bangor's exchange offer, which terminated on July 29, resulted in the tendering of 110,802 shares. By August 4, 1969, at the conclusion of both offers, Bangor Punta owned a total of 44.5%, while Chris-Craft owned 40.6% of Piper stock. The remainder of Piper stock, 14.9%, remained in the hands of the public. Page 430 U. S. 9After completion of their respective exchange offers, both companies renewed market purchases of Piper stock, [Footnote 6] but Chris-Craft, after purchasing 29,200 shares for cash in mid-August, withdrew from competition. [Footnote 7] Bangor Punta continued making cash purchases until September 5, by which time it had acquired a majority interest in Piper. The final tally in the nine-month takeover battle showed that Bangor Punta held over 50% and Chris-Craft held 42% of Piper stock.IIBefore either side had achieved control, the contest moved from the marketplace to the courts. Then began more than seven years of complex litigation growing out of the contest for control of Piper Aircraft.AChris-Craft's Initial SuitMay 22, 1969On May 22, 1969, Chris-Craft filed suit seeking both damages and injunctive relief in the United States District Court for the Southern District of New York. Chris-Craft alleged that Bangor's block purchases of 120,200 Piper shares in mid-May violated Rule 10b-6, and that Bangor's May 8 press release, announcing an $80 valuation of Bangor securities to be offered in the forthcoming exchange offer, violated SEC "gun-jumping" provisions, 15 U.S.C. § 77e(c), and Page 430 U. S. 10 SEC Rule 135, 17 CFR 230.135 (1976). Chris-Craft sought to enjoin Bangor from voting the Piper shares purchased in violation of Rule 10b-6, and from accepting any shares tendered by Piper stockholders pursuant to the exchange offer.BDistrict Court Decision on Preliminary InjunctionAugust 19, 1969On July 22, 1969, Chris-Craft moved for a preliminary injunction against Bangor. In an opinion filed August 19, 1969, United States District Judge Charles Tenney denied relief. Judge Tenney concluded, first, that the May 8 press release had not violated the gun-jumping provisions, and, second, that Bangor's block purchases of Piper stock were not inconsistent with Rule 10b-6."Bangor Punta's cash purchases . . . effected neither on the Exchange nor from or through a broker or dealer, were obviously not designed to place market pressures on the distribution price of Piper, so as to create an artificially high price for this security."303 F. Supp. 191, 198. (Emphasis supplied.) [Footnote 8]Judge Tenney accordingly concluded that neither irreparable injury nor likelihood of probable success on the merits had been established, particularly since the contest for control was still open."[B]oth the Chris-Craft and Bangor Punta exchange offers have expired. Neither party has gained control of Piper, and both are still in a position to do so."Id. at 199. Page 430 U. S. 11CCourt of Appeals' Decision on Preliminary InjunctionApril 28, 1970On appeal, the Court of Appeals for the Second Circuit, sitting en banc, affirmed Judge Tenney's denial of injunctive relief. 426 F.2d 569 (1970). In an opinion by Judge Waterman, the court held that Bangor had properly been allowed to continue soliciting Piper stock."Chris-Craft was free [at the time of the District Court's decision] to compete equally with Bangor Punta for the remaining Piper shares, and it did so. We do not understand Chris-Craft to allege that prior misdeeds of Bangor Punta so determined the course of the competition . . . that Chris-Craft was placed at any real disadvantage."Id. at 573.The court concluded, however, that Bangor had violated SEC "gun-jumping" provisions and Rule 10b-6, unless the three block purchases fell within an established exemption to the Rule. [Footnote 9]Chief Judge Lumbard, in dissent, agreed that injunctive relief was unwarranted, but also accepted the District Court's determination that Bangor had not violated the securities laws. [Footnote 10] Id. at 579. Page 430 U. S. 12The Court of Appeals remanded the case for further proceedings, so that Bangor, among other things, could attempt to establish that its block purchases fell within an exemption to Rule 10b-6.DDistrict Court Decision on SEC InjunctionAugust 26, 1971While Chris-Craft's private suit was pending, the SEC sought an injunction against Bangor on account of the BAR omission in Bangor's registration statement. The SEC sought both an offer of rescission to Piper shareholders who accepted Bangor's exchange offer and an injunction against Bangor from violating the Securities Act of 1933 and the 1934 Act.In an opinion by Judge Pollack, the District Court concluded that Bangor's registration statement was unintentionally misleading by virtue of the failure to disclose the fact that an offer had been received for the sale of the BAR. Accordingly, the court required Bangor to offer rescission to tendering Piper shareholders; however, the District Court refused to grant an injunction against future violations of the securities laws on the ground that the SEC had failed to establish that Bangor and its officials had a "propensity or natural inclination to violate the securities law." SEC v. Bangor Punta Corp., 331 F. Supp. 1154, 1163 (1971).EDistrict Court Decision on LiabilityDecember 10, 1971On remand from the Court of Appeals, Chris-Craft's private action also came before Judge Pollack. Although its second amended complaint, which added a claim based on the BAR omission, sought both damages and injunctive relief, Chris-Craft, at a pretrial hearing, expressly abandoned its Page 430 U. S. 13 prayer for equitable relief; the case was thereafter treated solely as an action for damages. 337 F. Supp. 1128, 1136 n. 8.Following trial before the District Court without a jury, Judge Pollack, in December, 1971, dismissed Chris-Craft's complaint against all defendants. In an exhaustive opinion, he concluded that Chris-Craft had standing to seek damages for Bangor's Rule 10b-6 violations, 337 F. Supp. at 1133, but found it unnecessary to decide whether § 14(e) could be invoked by one competitor for corporate control against another. 337 F. Supp. at 1134. [Footnote 11]On the merits, the District Court held that the Piper communications characterizing Chris-Craft's cash tender offer a "inadequate" were not misleading. The court concluded that the "more rational" view was that the statements referred to factors other than price, such as Piper's views as to the quality of Chris-Craft's management. Id. at 1135. The court also rejected Chris-Craft's contention that it had been injured by the omission in the Grumman press release concerning the "put" or option provision in the agreement. The District Court concluded that Piper's complete description of the provision in a listing application with the New York Stock Exchange, coupled with Chris-Craft's major acquisitions of Piper stock after learning of the "put," undermined Chris-Craft's claim that it was misled or otherwise injured by the announcement of the Grumman transaction. Ibid.With respect to the May 8 press release, which the Court of Appeals had held violative of the "gun-jumping" rules, the District Court held that the release, although technically a violation, was not false or misleading. Moreover, Chris-Craft had failed to show that it was injured or disadvantaged by the release in its efforts to acquire Piper stock. Id. at 1137. Page 430 U. S. 14As to the claim of a misleading valuation of the BAR, Judge Pollack held that Chris-Craft failed to show either scienter or causation as required in a damages action under the 1934 Act's antifraud provisions. Scienter was not established, the court concluded, since the BAR omission was "mere negligent omission or misstatement of fact." Id. at 1140. As to causation, the District Court specifically distinguished this Court's decision in Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), which established a presumption of causation in a § 14(a) suit by minority shareholders challenging misleading proxy materials. The omission in the proxy statement in that case, the District Court reasoned, directly affected the shareholders on whose behalf the suit was brought:"It was in that particular context that the Supreme Court deemed sufficient a set of facts under which shareholders could be misled. This does not aid Chris-Craft, as it is seeking to recover because of the effect which a misstatement allegedly had on third parties."337 F. Supp. at 1139. (Emphasis in original.) (Footnote omitted.) Given the differences between the instant case and Mills, the District Court went on to hold that proof of actual causation was required:"There is no proof that a single exchanging Piper shareholder would have refrained from the exchange and taken an offer for his shares from Chris-Craft instead of that from Bangor Punta. In a damage suit, as distinct from one for equitable relief, such proof is essential to sustain a 10b-5 claim."Ibid. (Emphasis in original.)On Chris-Craft's Rule 10b-6 claim, Judge Pollack held that, although the block purchases did not fall within any exemption to the Rule, Chris-Craft had no right to recovery:"Even granting that the block purchases resulted arithmetically Page 430 U. S. 15 in Bangor Punta's achievement of control, there is no basis for concluding that, absent Bangor Punta's acquisition of these blocks, Chris-Craft would have achieved its goal of control."Id. at 1142. Based on its findings with respect to Piper and Bangor Punta, the District Court also held in favor of First Boston; the court specifically exonerated the firm of having "committed, or engaged in any course of conduct which operated as a fraud or deceit upon Chris-Craft or the public shareholders of Piper." Id. at 1145.FCourt of Appeals Decision on LiabilityMarch 16, 1973Chris-Craft appealed, and the SEC sought review of the District Court's denial of injunctive relief against Bangor Punta. In the Court of Appeals, each member of the panel wrote separately. All three members of the panel agreed that Chris-Craft had standing to sue for damages under § 14(e), and that a claim for damages had been established. However, Judges Gurfein and Mansfield, over Judge Timbers' dissent, sustained the District Court's denial of an injunction against Bangor.Court of Appeals Majority OpinionThe Court of Appeals directly answered the question concerning Chris-Craft's standing under § 14(e), which the District Court had not decided. [Footnote 12] The Court of Appeals based its holding "on the statute itself [§ 14(e)] and such decisional law as there is that has touched on the question." 480 F.2d 341, 358. The opinion noted that the Second Page 430 U. S. 16 Circuit had on four occasions [Footnote 13] addressed the issue whether a private cause of action might be implied under § 14(e). Although acknowledging that no case represented a square holding in this respect, the court interpreted the cases to intimate "that such an implied right of action would be reasonable." 480 F.2d at 360. The court then noted that Chris-Craft could likely state a common law tort claim in state court for "interference with a prospective advantage.'" Ibid."We will not infer from the silence of the statute that Congress intended to deny a federal remedy and to extinguish a liability which, under established principles of tort law, normally attends the doing of a proscribed act."Id. at 360-361.With respect to the legislative history of § 14(e), the Court of Appeals expressly acknowledged that the focus of congressional concern was the protection of public shareholders. Given this purpose, the court concluded:"We can conceive of no more effective means of furthering the general objective of § 14(e) than to grant a victim of violations of the statute standing to sue for damages. . . . Particularly in light of the enforcement rationale of [J. I. Case Co. v.\] Borak, [377 U.S. 426 (1964),] we believe it is both necessary and appropriate that [Chris-Craft] should be granted standing to sue for damages."480 F.2d at 361. Page 430 U. S. 17The court next reviewed the alleged § 14(e) violations for which Chris-Craft sought damages. In contrast to the District Court's conclusions, the Court of Appeals held that Piper's description of the Chris-Craft offer as "inadequate," and the failure to disclose the "put" provision in the Grumman agreement constituted actionable violations of § 14(e). 480 F.2d at 36365. As to Bangor Punta, the Court of Appeals agreed with Judge Pollack's determination that Chris-Craft had not been injured by the "gun-jumping" press release of May 8; on the other hand, the court held that the BAR omission in Bangor's registration statement was actionable. The Court of Appeals expressly rejected Judge Pollack's conclusion that the registration statement was "unintentionally in error." On the contrary, the Court of Appeals held that Bangor Punta's officers "showed reckless disregard" in failing to disclose the BAR negotiations, although the court conceded that the officers were not shown to have had an "intent to defraud." Id. at 369. First Boston was likewise held culpable because its certification of the registration statement "amounted to an almost complete abdication of its responsibility [as an underwriter]. . . ." Id. at 373.The Court of Appeals also disagreed with the District Court's analysis of causation. Although agreeing that Chris-Craft failed to show that it would have won the takeover battle, [Footnote 14] the court relied upon Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), as establishing a presumption of reliance Page 430 U. S. 18 and causation applicable to Chris-Craft. Under Mills, so the court held, "we must presume that [Bangor's] offer was not so appealing, considering the BAR loss, as to have attracted any takers." 480 F.2d at 375."Since [Bangor] eventually acquired only about 51% of the outstanding Piper shares, it is clear that the 7% acquired through its exchange offer was critical to its success. Reliance and causation have been shown."Ibid.In addition to the § 14(e) claim, the Court of Appeals held that Chris-Craft could recover damages for Bangor's Rule 10b-6 violations; the three block purchases had a "presumptively . . . stimulating effect . . . which misled the public." 480 F.2d at 378. Since those purchases amounted to 7% of Piper stock, "[e]ven arithmetically, it is apparent that the block purchases [by Bangor Punta] . . . were essential to achieve control." Id. at 379.The Court of Appeals then remanded with directions to the District Court to award damages in the amount of"the reduction in the appraisal value of [Chris-Craft's] Piper holdings attributable to [Bangor Punta's] taking a majority position and reducing [Chris-Craft] to a minority position. . . ."Id. at 380. Damages were to be awarded against all defendants jointly and severally. In addition, without discussing Chris-Craft's abandonment of its claim for equitable relief, the court instructed the District Court to enjoin Bangor for a period of at least five years from voting the Piper shares acquired through the exchange offer and in violation of Rule 10b-6. Ibid.Finally, Judge Timbers, writing in dissent on this issue, disagreed with the conclusion of Judges Mansfield and Gurfein that the SEC request for an injunction against future violations by Bangor Punta had properly been refused. In Judge Timbers' view, the District Court employed an improper Page 430 U. S. 19 legal standard in denying the SEC injunctive relief against Bangor.Judge Gurfein's Concurring OpinionJudge Gurfein concurred "generally" in Judge Timbers' opinion for the court. On the issue of standing, Judge Gurfein agreed with the District Court's approach in considering the matter as one of "causation before considering the question of standing." 480 F.2d at 393. Under Judge Gurfein's approach, Chris-Craft had standing because Bangor's acquisitions of Piper shares were necessary for control. As to scienter, Judge Gurfein was of the view that "mere negligence" would not suffice, but that "recklessness that is equivalent to willful fraud' is required. . . ." Ibid. (Citation omitted.)Judge Gurfein disagreed, however, with Judge Timbers' analysis of the alleged Rule 10b-6 violations. He refused to indulge the presumption of "stimulating effect" embraced by Judge Timbers, and concluded, rather, that, because "the [illegal] block purchases were necessary for control, causation was established. . . ." 480 F.2d at 393.With respect to the SEC action against Bangor Punta, Judge Gurfein, writing for himself and Judge Mansfield, upheld the District Court's refusal to grant a permanent injunction. Applying the "abuse of discretion" standard, Judge Gurfein concluded that"the matter is not so clear that we should substitute our judgment for the judgment of the experienced trial Judge below, who sat as a chancellor in equity."Ibid.Judge Mansfield's Concurring and Dissenting OpinionJudge Mansfield concurred in the "results" reached by Judge Timbers, except with respect to the Piper family's liability. Judge Mansfield agreed that the Piper communications violated § 14(e), but concluded that Chris-Craft had failed to prove damages resulting from those infractions. Page 430 U. S. 20 Applying the principles of Mills v. Electric Auto-Lite Co., supra, Judge Mansfield stated: "[Chris-Craft] must show that it suffered some resulting loss. This it has failed to do."480 F.2d at 401.On the other issues addressed by the majority opinion, Judge Mansfield concluded that Chris-Craft's standing under § 14(e) rested solely on the policy of vigorous enforcement of the antifraud provisions. 480 F.2d at 396. As to scienter, Judge Mansfield concluded that intent to defraud had not been shown. He formulated instead the following test of scienter:"In short, the scienter requirement would be met if the corporate officer (1) knew the essential facts and failed to disclose them, or (2) failed or refused, after being put on notice of a possible material failure in disclosure, to apprise himself of the facts under circumstances where he could reasonably have ascertained and disclosed them without any extraordinary effort."Id. at 398. He concluded that the actions complained of satisfied this standard.Like Judge Gurfein, Judge Mansfield declined to indulge the presumption that Bangor's Rule 10b-6 violations actually operated to make its exchange offer deceptively attractive; he concurred solely on the ground that, where a party achieves control through violations of the securities laws, the party is liable as a matter of law to an injured competitor. [Footnote 15]GDistrict Court Opinion on ReliefNovember 6, 1974Pursuant to the remand, Judge Pollack took evidence on damages. Although concluding that the Court of Appeals' Page 430 U. S. 21 mandate required the use of "hypothetical figures," he determined that Chris-Craft's damages were to be measured by comparing the value of its Piper holdings prior and subsequent to Bangor's achieving control. 384 F. Supp. 507, 512 (1974). Employing this method, he concluded, on the basis of expert testimony, that the fair market value of Piper stock as of the day Bangor achieved control was $48 per share. Id. at 517. After ascertaining that the value of Chris-Craft's takeover opportunity amounted to 5% of the fair market value of the stock, or $2.40 per share, id. at 523, the District Court awarded to Chris-Craft, based on its holdings of 697,495 shares, damages of $1,673,988. Ibid. The District Court also granted an award of prejudgment interest and entered an injunction, consistent with the mandate of the Court of Appeals, barring Bangor from voting the illegally acquired Piper shares for five years. Id. at 526.HCourt of Appeals' Opinion on ReliefApril 11, 1975In the final phase of the litigation, the Court of Appeals reversed on the damages issue and calculated Chris-Craft's damages without further remand to the District Court. The Court of Appeals fixed damages as the difference between what Chris-Craft had actually paid for Piper shares and the price at which the large minority block could have been sold at the earliest point after Bangor Punta gained control. Application of this formula produced damages in the amount of $36.98 per Piper share held by Chris-Craft, or a total of $25,793,365. 516 F.2d 172, 190 (1975). The court instructed the District Court to recompute prejudgment interest based on the revised damages award. Id. at 191. This new computation increased Chris-Craft's prejudgment interest from $600,000 to approximately $10 million.It is this judgment which is now under review. Page 430 U. S. 22IIIThe Williams ActWe turn first to an examination of the Williams Act, which was adopted in 1968 in response to the growing use of cash tender offers as a means for achieving corporate takeovers. [Footnote 16] Prior to the 1960's, corporate takeover attempts had typically involved either proxy solicitations, regulated under § 14 of the Securities Exchange Act, 15 U.S.C. § 78n, or exchange offers of securities, subject to the registration requirements of the 1933 Act. § 77e. The proliferation of cash tender offers, in which publicized requests are made and intensive campaigns conducted for tenders of shares of stock at a fixed price, removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the federal securities laws. See generally S.Rep. No. 550, 90th Cong., 1st Sess., 2 (1967) (hereinafter Senate Report); H.R.Rep. No. 1711, 90th Cong., 2d Sess., 2-4 (1968) (hereinafter House Report).To remedy this gap in federal regulation, Senator Harrison Williams introduced a bill in October, 1965, to subject tender offerors to advance disclosure requirements. The original proposal, S. 2732, evolved over the next two years in response to positions expressed by the SEC and other interested parties from private industry and the New York Stock Exchange. 113 Cong.Rec. 854 (1967) (remarks of Sen. Williams). As subsequently enacted, the legislation requires takeover bidders to file a statement with the Commission indicating, among other things, the "background and identity" of the offeror, the source and amount of funds or other consideration to be used in making the purchases, the Page 430 U. S. 23 extent of the offeror's holdings in the target corporation, and the offeror's plans with respect to the target corporation's business or corporate structure. 15 U.S.C. § 78m(d)(1).In addition to disclosure requirements, which protect all target shareholders, the Williams Act provides other benefits for target shareholders who elect to tender their stock. First, stockholders who accept the tender offer are given the right to withdraw their shares during the first seven days of the tender offer and at any time after 60 days from the commencement of the offer. § 78n(d)(5). Second, where the tender offer is for less than all outstanding shares and more than the requested number of shares are tendered, the Act requires that the tendered securities be taken up pro rata by the offeror during the first 10 days of the offer. § 78n(d)(6). [Footnote 17] This provision, according to Senator Williams, was specifically designed to reduce pressures on target shareholders to deposit their shares hastily when the takeover bidder makes its tender offer on a first-come, first-served basis. 113 Cong.Rec. 856 (1967). Finally, the Act provides that, if, during the course of the offer, the amount paid for the target shares is increased, all tendering shareholders are to receive the additional consideration, even if they tendered their stock before the price increase was announced. 15 U.S.C. § 78n(d)(7). See generally 1 A Bromberg, Securities Law: Fraud § 6.3 (551), p. 120.2 (1975). Page 430 U. S. 24Besides requiring disclosure and providing specific benefits for tendering shareholders, the Williams Act also contains a broad antifraud prohibition, which is the basis of Chris-Craft's claim. Section 14(e) of the Securities Exchange Act, as added by § 3 of the Williams Act, 82 Stat. 457, 15 U.S.C. § 78n(e), provides:"It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation."This provision was expressly directed at the conduct of a broad range of persons, including those engaged in making or opposing tender offers or otherwise seeking to influence the decision of investors or the outcome of the tender offer. Senate Report 11.The threshold issue in these cases is whether tender offerors such as Chris-Craft, whose activities are regulated by the Williams Act, have a cause of action for damages against other regulated parties under the statute on a claim that antifraud violations by other parties have frustrated the bidder's efforts to obtain control of the target corporation. Without reading such a cause of action into the Act, none of the other issues need be reached.IVOur analysis begins, of course, with the statute itself. Section 14(e), like § 10(b), makes no provision whatever for a private cause of action, such as those explicitly provided in other sections of the 1933 and 1934 Acts. E.g., §§ 11, 12, 15 of the 1933 Act, 15 U.S.C. §§ 77k, 77l, 77o; §§ 9, 16, 18, 20 Page 430 U. S. 25 of the 1934 Act, 15 U.S.C. §§ 78i, 78p, 78r, 78t. This Court has nonetheless held that, in some circumstances, a private cause of action can be implied with respect to the 1934 Act's antifraud provisions, even though the relevant provisions are silent as to remedies. J. I. Case Co. v. Borak, 377 U. S. 426 (1964) (§ 14(a)); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U. S. 6, 404 U. S. 13 n. 9 (1971) (§ 10(b)).The reasoning of these holdings is that, where congressional purposes are likely to be undermined absent private enforcement, private remedies may be implied in favor of the particular class intended to be protected by the statute. For example, in J. I. Case Co. v. Borak, supra, recognizing an implied right of action in favor of a shareholder complaining of a misleading proxy solicitation, the Court concluded as to such a shareholder's right:"While [ § 14(a)] makes no specific reference to a private right of action, among its chief purposes is 'the protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result."377 U.S. at 377 U. S. 432. (Emphasis supplied.)Indeed, the Court in Borak carefully noted that, because of practical limitations upon the SEC's enforcement capabilities, "[p]rivate enforcement . . . provides a necessary supplement to Commission action." Ibid. (Emphasis added.) Similarly, the Court's opinion in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 730 (1975), in reaffirming the availability of a private right of action under § 10(b), specifically alluded to the language in Borak concerning the necessity for supplemental private remedies without which congressional protection of shareholders would be defeated. See also Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 422 U. S. 62 (1975).Against this background, we must consider whether § 14(e), which is entirely silent as to private remedies, permits this Court to read into the statute a damages remedy for unsuccessful tender offerors. To resolve that question, we turn to the Page 430 U. S. 26 legislative history to discern the congressional purpose underlying the specific statutory prohibition in § 14(e). Once we identify the legislative purpose, we must then determine whether the creation by judicial interpretation of the implied cause of action asserted by Chris-Craft is necessary to effectuate Congress' goals.AReliance on legislative history in divining the intent of Congress is, as has often been observed, a step to be taken cautiously. Department of Air Force v. Rose, 425 U. S. 352, 425 U. S. 388-389 (1976) (BLACKMUN, J., dissenting); United States v. Public Utilities Comm'n, 345 U. S. 295, 345 U. S. 319 (1953) (Jackson, J., concurring); Scripps-Howard Radio v. FCC, 316 U. S. 4, 316 U. S. 11 (1942). In this case, both sides press legislative history on the Court not so much to explain the meaning of the language of a statute as to explain the absence of any express provision for a private cause of action for damages. As Mr. Justice Frankfurter reminded us: "We must be wary against interpolating our notions of policy in the interstices of legislative provisions." Ibid. With that caveat, we turn to the legislative history of the Williams Act.In introducing the legislation on the Senate floor, the sponsor, Senator Williams, stated:"This legislation will close a significant gap in investor protection under the Federal securities laws by requiring the disclosure of pertinent information to stockholders when persons seek to obtain control of a corporation by a cash tender offer or through open market or privately negotiated purchases of securities."113 Cong.Rec. 854 (1967). (Emphasis supplied.) The same theme of investor protection was emphasized eight months later by Senator Williams on the day the measure was passed by the Senate:"[The federal securities laws] provide protection for millions of American investors by requiring full disclosure Page 430 U. S. 27 of information in connection with the public offering and trading of securities. These laws have worked well in providing the public with adequate information on which to base intelligent investment decisions.""* * * *" "There are, however, some areas still remaining where full disclosure is necessary for investor protection, but not required by present law. One such area is the purchase by direct acquisition or by tender offers of substantial blocks of the securities of publicly held companies.""S. 510 . . . provides for investor protection in these areas."Id. at 24664. (Emphasis supplied.) Indeed, the bill, as finally enacted by Congress, was styled as a disclosure provision: "A bill to provide for full disclosure of corporate equity ownership of securities under the Securities Exchange Act of 1934." See generally 1 A. Bromberg, supra, § 6.3(121), at 116.2.Confirming the view that the legislation was designed to fill "a rather large gap in the securities statutes," Manuel Cohen, then Chairman of the SEC, testified before the Senate Subcommittee on Securities:"[T]he general approach . . . of this bill is to provide the investor, the person who is required to make a decision, an opportunity to examine and to assess the relevant facts. . . ."Senate Hearings 15. In response to the suggestion that the legislation would tend to aid entrenched management in warding off potentially beneficial takeover bids, Chairman Cohen testified:"But the principal point is that we are not concerned with assisting or hurting either side. We are concerned with the investor who today is just a pawn in a form of industrial warfare. . . . The investor is lost somewhere Page 430 U. S. 28 in the shuffle. This is our concern, and our only concern."Id. at 178. (Emphasis supplied.)The legislative history thus shows that Congress was intent upon regulating takeover bidders, theretofore operating covertly, in order to protect the shareholders of target companies. That tender offerors were not the intended beneficiaries of the bill was graphically illustrated by the statements of Senator Kuchel, cosponsor of the legislation, in support of requiring takeover bidders, whom he described as "corporate raiders" and "takeover pirates," to disclose their activities."Today there are those individuals in our financial community who seek to reduce our proudest businesses into nothing but corporate shells. They seize control of the corporation with unknown sources, sell or trade away the best assets, and later split up the remains among themselves. The tragedy of such collusion is that the corporation can be financially raped without management or shareholders having any knowledge of the acquisitions. . . . The corporate raider may thus act under a cloak of secrecy while obtaining the shares needed to put him on the road to a successful capture of the company."113 Cong.Rec. 857-858 (1967). (Emphasis supplied.)At different stages of the legislative debate, Senator Kuchel called the Senate's attention to specific takeover attempts directed against two companies. During the floor debate on the day S. 510 was passed, Senator Kuchel described one takeover contest:"If this attempt had succeeded, [the company] would have found itself under the control of a combination including significant foreign interests, without prior notice to the company, without an opportunity for examination into the circumstances surrounding the tender Page 430 U. S. 29 offer, and without any regard for the rights of its stockholders."Id. at 24665. (Emphasis supplied.)Moreover, the Senate Subcommittee heard the testimony of Professor Hayes, speaking on behalf of himself and his co-author of a comprehensive study on takeover attempts, [Footnote 18] who stated:"The two major protagonists -- the bidder and the defending management do not need any additional protection, in our opinion. They have the resources and the arsenal of moves and countermoves which can adequately protect their interests. Rather, the investor -- who is the subject of these entreaties of both major protagonists -- is the one who needs a more effective champion. . . ."Senate Hearings 57. (Emphasis supplied.)In the face of this legislative history, the Court of Appeals understandably did not rely upon the legislative materials to support an implied cause of action for damages in favor of Chris-Craft. In this Court, however, Chris-Craft and the SEC contend that Congress clearly intended to protect tender offerors as part of a "pervasive scheme of federal regulation of tender offers." In support of their reading of the legislative history, they emphasize, first, that, in enacting the legislation, Congress was intent upon establishing a policy of evenhandedness in takeover regulation. Congress was particularly anxious, Chris-Craft argues, "to avoid tipping the balance of regulation. . . .'"Congress was indeed committed to a policy of neutrality in contests for control, but its policy of evenhandedness does not go either to the purpose of the legislation or to whether a private cause of action is implicit in the statute. Neutrality is, rather, but one characteristic of legislation directed toward a different purpose -- the protection of investors. Indeed, the statements concerning the need for Congress to Page 430 U. S. 30 maintain a neutral posture in takeover attempts are contained in the section of the Senate Report entitled, "Protection of Investors." Taken in their totality, these statements confirm that what Congress had in mind was the protection of shareholders, the "pawn[s] in a form of industrial warfare." The Senate Report expressed the purpose as "plac[ing] investors on an equal footing with the takeover bidder," Senate Report 4, without favoring either the tender offeror or existing management. This express policy of neutrality scarcely suggests an intent to confer highly important, new rights upon the class of participants whose activities prompted the legislation in the first instance.Moreover, closer analysis shows that Congress' "equal footing" observations were in response to strong criticisms that the proposed legislation would unduly inhibit tender offers. [Footnote 19] As originally introduced, the disclosure proposals embodied in S. 2731 were avowedly pro-management in the target company's efforts to defeat takeover bids. See generally Note, The Williams Amendments: An Evaluation of the Early Returns, 23 Vand.L.Rev. 700 (1970). Subsequent committee hearings, however, indicated, first, that takeover bids could often serve a useful function, and, second, that entrenched management, equipped with considerable weapons in battles for control, tended to be successful in fending off possibly beneficial takeover attempts. Several witnesses specifically called the efficacy of the proposed legislation into question, since, in their view, the "scales are pretty unbalanced at the moment, and unbalanced very much in favor of management." Senate Hearings 117.The sponsors of this legislation were plainly sensitive to the suggestion that the measure would favor one side or the other in control contests; however, they made it clear that Page 430 U. S. 31 the legislation was designed solely to get needed information to the investor, the constant focal point of the committee hearings. Senator Williams articulated this singleness of purpose, even while advocating neutrality:"We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids. S. 610 is designed solely to require full and fair disclosure for the benefit of investors."113 Cong.Rec. 24664 (1967). (Emphasis supplied.)Accordingly, the congressional policy of "evenhandedness" is nonprobative of the quite disparate proposition that the Williams Act was intended to confer rights for money damages upon an injured takeover bidder.Besides the policy of evenhandedness, Chris-Craft emphasizes that the matter of implied private causes of action was raised in written submissions to the Senate Subcommittee. Specifically, Chris-Craft points to the written statements of Professors Israels and Painter, who made reference to J. I. Case Co. v. Borak, 377 U. S. 426 (1964). Chris-Craft contends, therefore, that Congress was aware that private actions were implicit in § 14(e).But this conclusion places more weight on the passing reference to Borak than can reasonably be carried. Even accepting the value of written statements received without comment by the committee and without cross-examination, [Footnote 20] the statements do not refer to implied private actions by Page 430 U. S. 32 offeror-bidders. For example, Professor Israels' statement on this subject reads:"[A] private litigant could seek similar relief before or after the significant fact such as the acceptance of his tender of securities."Senate Hearings 67. (Emphasis supplied.) Similarly, Professor Painter, in his written submission, referred to "injured investors." Id. at 140. Neither Israels nor Painter discussed, or even alluded to, remedies potentially available to takeover bidders.More important, these statements referred to a case in which the remedy was afforded to shareholders -- the direct and intended beneficiaries of the legislation. In Borak, the Court emphasized that § 14(a), the proxy provision, was adopted expressly for "the protection of investors," 377 U.S. at 377 U. S. 432, the very class of persons there seeking relief. [Footnote 21] The Page 430 U. S. 33 Court found no difficulty in identifying the legislative objective and concluding that remedies should be available if necessary "to make effective the congressional purpose." Id. at 377 U. S. 433. Borak did not involve, and the statements in the legislative history relied upon by Chris-Craft do not implicate, the interests of parties such as offeror-bidders who are outside the scope of the concerns articulated in the evolution of this legislation. [Footnote 22]Chris-Craft and the SEC also rely upon statements in the legislative history which, they suggest, demonstrate that Congress, in adopting the Williams Act, was concerned with parties other than shareholders. First, they place particular emphasis upon a statement by Chairman Cohen in his Senate testimony that "shareholders are not the only persons concerned." From this statement, they argue that tender offerors were likewise within the sphere of congressional concern. In that colloquy, however, Chairman Cohen was plainly referring to persons in need of disclosure:"As soon as there is a takeover bid, everybody in the market gets excited. There are people who consider themselves professional or amateur arbitragers, and they begin to play the games that possibility permits."Senate Hearings 178. Thus, Chairman Cohen was referring to other actors in the marketplace, including arbitragers, who would benefit from disclosure. He was not referring to the needs of those required by the proposed legislation to make disclosure, the tender offerors themselves. Page 430 U. S. 34Finally, Chris-Craft emphasizes what it perceives as the Commission's express concern with the plight of takeover bidders faced with "unfair tactics by entrenched management." The SEC Chairman did indeed speak in the Subcommittee Hearings of the need to "regulate improper practices by management and others opposing a tender offer. . . ." Senate Hearings 184. But, in so doing, he was not pleading the cause of takeover bidders; on the contrary, he testified that imposing disclosure duties upon management would "make it much easier for stockholders to evaluate the offer on its merits." Ibid. (Emphasis supplied.)In short, by extending the statute's coverage to solicitations in opposition to tender offers, Congress was seeking to broaden the scope of protection afforded to shareholders confronted with competing claims. Senator Williams, for example, was fully aware that in a contest for control, full disclosure by all contestants was needed to protect shareholders:"In the rather common situation where existing management or third parties contest a tender offer, shareholders may be exposed to a bewildering variety of conflicting appeals and arguments designed to persuade them either to accept or to reject the tender offer. The experience of the SEC with proxy fights offers ample evidence that this type of situation can best be controlled, and shareholders most adequately informed, if both sides to the argument are subject to the full and fair disclosure rules of the Federal securities laws."113 Cong.Rec. 855-856 (1967). (Emphasis supplied.) Furthermore, in the very passages on which Chris-Craft relies as evidencing SEC concern for tender offerors, Chairman Cohen criticized any analysis which focused upon the legislation's impact on management or the takeover bidder:"Moreover, this type of analysis lays almost exclusive stress on the respective interests of the offeror and the Page 430 U. S. 35 existing management, rather than upon the protection of the stockholders . . . , who are left to be treated as pawns in an elaborate game between the offerors and the management or perhaps other competing interests."Senate Hearings 184. (Emphasis supplied.)The legislative history thus shows that the sole purpose of the Williams Act was the protection of investors who are confronted with a tender offer. As we stated in Rondeau v. Mosinee Paper Corp., 422 U.S. at 422 U. S. 58:"The purpose of the Williams Act is to insure that public shareholders who are confronted by a cash tender offer for their stock will not be required to respond without adequate information. . . ."We find no hint in the legislative history, on which respondent so heavily relies, that Congress contemplated a private cause of action for damages by one of several contending offerors against a successful bidder or by a losing contender against the target corporation.The dissent suggests, however, that Chris-Craft is suing under § 14(e) for injuries sustained in its status as a Piper shareholder, as well as in its capacity as a defeated tender offeror. Post at 430 U. S. 56-59. In contrast to that suggestion, Chris-Craft's position in this Court on the issue of standing is based on the narrow ground that the Williams Act was designed to protect not only target company shareholders, but rival contestants for control as well. Brief for Respondent 36-40, 43, 46 48, 50-54. It is clear, therefore, that Chris-Craft has not asserted standing under § 14(e) as a Piper shareholder. The reason is not hard to divine. As a tender offeror actively engaged in competing for Piper stock, Chris-Craft was not in the posture of a target shareholder confronted with the decision of whether to tender or retain its stock. Consequently, Chris-Craft could scarcely have alleged a need for the disclosures mandated by the Williams Act. In short, the fact that Chris-Craft necessarily acquired Piper stock as a means of taking over Piper adds nothing to its § 14(e) standing Page 430 U. S. 36 arguments. [Footnote 23] This probably explains why the Court of Appeals at no time intimated that it rested Chris-Craft's standing on its status as a Piper stockholder. Its opinion in this respect could hardly be clearer:"This is a case of first impression with respect to the right of a tender offeror to claim damages for statutory violations by his adversary. And our holding is premised on the belief that the harm done the defeated contestant is not that it had to pay more for the stock, but that it got less stock than it needed for control."480 F.2d at 362. (Emphasis supplied.)Moreover, the items of damages cited in dissent, post at 430 U. S. 57-58, n. 6, as attributable to Chris-Craft in its status as a Piper shareholder are, upon analysis, actually related, under these circumstances, to Chris-Craft's status as a contestant for control of a corporation. First, the alleged "loss of the control premium," which Chris-Craft presumably otherwise would have enjoyed,. relates, on its face, not to Chris-Craft as a Piper shareholder per se, but to its status as a shareholder who failed to gain control. Second, the alleged loss of value as to a "locked-in," "exceptionally large block" of Piper stock likewise relates, under these circumstances, to a particular kind of Piper shareholder, namely one whose efforts to secure control necessarily resulted in the acquisition of major stockholdings in the company. In this regard, the Court of Appeals Page 430 U. S. 37 plausibly assumed that, in order to dispose of its Piper holdings, Chris-Craft would have to file a registration statement with the SEC, since Chris-Craft would presumably be engaged in a distribution of Piper stock. 516 F.2d at 188-189. In contrast, no ordinary Piper shareholder would have had to comply with the 1933 Act's registration requirements in order to sell his stock, since the typical shareholder is not "an issuer, underwriter, or dealer." 15 U.S.C. § 77d(1).Consequently, the elements of damages mentioned in dissent are peculiar to Chris-Craft not as a "target shareholder" of Piper, but as a defeated tender offeror "injured" by its adversaries' alleged violations of the securities laws. [Footnote 24]BOur conclusion as to the legislative history is confirmed by the analysis in Cort v. Ash, 422 U. S. 66 (1975). There, the Court identified four factors as "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one. The first is whether the plaintiff is "one of the class for whose especial benefit the statute was enacted. . . .'" Id. at 422 U. S. 78. (Emphasis in original.) As previously indicated, examination of the statute and its genesis shows that Chris-Craft is not an intended beneficiary of the Williams Act, and surely is not one "for whose especial benefit the statute was enacted." Ibid. To the contrary, Chris-Craft is a member of the class whose activities Congress intended to regulate for the protection and benefit of an entirely distinct class, shareholder-offerees. As a party whose previously unregulated conduct was purposefully brought under federal control by the statute, Chris-Craft can scarcely lay claim to the status of "beneficiary" whom Congress considered in need of protection. Page 430 U. S. 38Second, in Cort v. Ash, we inquired whether there was "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Ibid. Although the historical materials are barren of any express intent to deny a damages remedy to tender offerors as a class, there is, as we have noted, no indication that Congress intended to create a damages remedy in favor of the loser in a contest for control. Fairly read, we think the legislative documents evince the narrow intent to curb the unregulated activities of tender offerors. The expression of this purpose, which pervades the legislative history, negates the claim that tender offerors were intended to have additional weapons in the form of an implied cause of action for damages, particularly if a private damages action confers no advantage on the expressly protected class of shareholder-offerees, a matter we discuss later. Infra at 430 U. S. 39.Chris-Craft argues, however, that Congress intended standing under § 14(e) to encompass tender offerors, since the statute, unlike § 10(b), does not contain the limiting language, "in connection with the purchase or sale" of securities. Instead, in § 14(e), Congress broadly proscribed fraudulent activities "in connection with any tender offer . . . or any solicitation . . . in opposition to or in favor of any such offer. . . ."The omission of the purchaser-seller requirement does not mean, however, that Chris-Craft has standing to sue for damages under § 14(e) in its capacity as a takeover bidder. It may well be that Congress desired to protect, among others, shareholder-offerees who decided not to tender their stock due to fraudulent misrepresentations by persons opposed to a takeover attempt. See generally 1 A. Bromberg, Securities Law: Fraud § 6.3 (1021), p. 122.17 (1969). See also Senate Report 2; House Report 3. These shareholders, who might not enjoy the protection of § 10(b) under Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975), could perhaps Page 430 U. S. 39 state a claim under § 14(e), even though they did not tender their securities. [Footnote 25] But increased protection, if any, conferred upon the class of shareholder-offerees by the elimination of the purchaser-seller restriction can scarcely be interpreted as giving protection to the entirely separate and unrelated class of persons whose conduct the statute is designed to regulate.Third, Cort v. Ash tells us that we must ascertain whether it is "consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff." 422 U.S. at 422 U. S. 78. We conclude that it is not. As a disclosure mechanism aimed especially at protecting shareholders of target corporations, the Williams Act cannot consistently be interpreted as conferring a monetary remedy upon regulated parties, particularly where the award would not redound to the direct benefit of the protected class. Although it is correct to say that the $36 million damages award indirectly benefits those Piper shareholders who became Chris-Craft shareholders when they accepted Chris-Craft's exchange offer, it is equally true that the damages award injures those Piper shareholders who exchanged their shares for Bangor Punta's stock and who, as Bangor Punta shareholders, would necessarily bear a large part of the burden of any judgment against Bangor Punta. The class sought to be protected by the Williams Act are the shareholders of the target corporation; hence it can hardly be said that their interests as a class are served by a judgment in favor of Chris-Craft and against Bangor Punta. Moreover, the damages are awarded to the very party whose activities Congress intended to curb; Chris-Craft did not sue in the capacity of an injured Piper shareholder, but as a defeated tender offeror.Nor can we agree that an ever-present threat of damages against a successful contestant in a battle for control will provide significant additional protection for shareholders Page 430 U. S. 40 in general. The deterrent value, if any, of such awards can never be ascertained with precision. More likely, however, is the prospect that shareholders may be prejudiced because some tender offers may never be made if there is a possibility of massive damages claims for what courts subsequently hold to be an actionable violation of § 14(e). [Footnote 26] Even a contestant who "wins the battle" for control may well wind up exposed to a costly "war" in a later and successful defense of its victory. Or, at worst -- on Chris-Craft's damages theory -- the victorious tender offeror or the target corporation might be subject to a large substantive judgment, plus high costs of litigation.In short, we conclude that shareholder protection, if enhanced at all by damages awards such as Chris-Craft contends for, can more directly be achieved with other, less drastic means more closely tailored to the precise congressional goal underlying the Williams Act.Fourth, under the Cort v. Ash analysis, we must decide whether "the cause of action [is] one traditionally relegated to state law. . . ." 422 U.S. at 422 U. S. 78. Despite the pervasiveness of federal securities regulation, the Court of Appeals concluded in these cases that Chris-Craft's complaint would give rise to a cause of action under common law principles of interference Page 430 U. S. 41 with a prospective commercial advantage. Although Congress is, of course, free to create a remedial scheme in favor of contestants in tender offers, we conclude, as we did in Cort v. Ash, that"it is entirely appropriate in this instance to relegate [the offeror-bidder] and others in [that] situation to whatever remedy is created by state law,"id. at 422 U. S. 84, at least to the extent that the offeror seeks damages for having been wrongfully denied a "fair opportunity" to compete for control of another corporation.CWhat we have said thus far suggests that, unlike J. I. Case Co. v. Borak, supra, judicially creating a damages action in favor of Chris-Craft is unnecessary to ensure the fulfillment of Congress' purposes in adopting the Williams Act. Even though the SEC operates in this context under the same practical restraints recognized by the Court in Borak, institutional limitations alone do not lead to the conclusion that any party interested in a tender offer should have a cause of action for damages against a competing bidder. [Footnote 27] First, Page 430 U. S. 42 as Judge Friendly observed in Electronic Specialty Co. v. International Controls Corp., 409 F.2d 937, 947 (CA2 1969), in corporate control contests, the stage of preliminary injunctive relief, rather than post-contest lawsuits, "is the time when relief can best be given." Furthermore, awarding damages to parties other than the protected class of shareholders has only a remote, if any, bearing upon implementing the congressional policy of protecting shareholders who must decide whether to tender or retain their stock. [Footnote 28] Indeed, as we suggested earlier, a damages award of this nature may well be inconsistent with the interests of many members of the protected class, and of only indirect value to shareholders who accepted the exchange offer of the defeated takeover contestant.We therefore conclude that Chris-Craft, as a defeated tender offeror, has no implied cause of action for damages under § 14(e).VIn addition to its holding under § 14(e), the Court of Appeals held that Bangor was liable for damages under Rule 10b-6 because of its off-exchange cash purchases of Piper stock in May, 1969. Although the Court of Appeals imposed joint and several liability upon all defendants with respect to the injury occasioned by Bangor's achieving control of Piper, our holding, in 430 U. S. supra, that no cause of action for damages lies under § 14(e) in favor of Chris-Craft, Page 430 U. S. 43 necessarily removes all petitioners except Bangor Punta from any potential liability in these cases. The issue that remains is whether Chris-Craft has a cause of action for damages against Bangor alone by virtue of the latter's alleged Rule 10b-6 violations. We hold that it does not.Rule 10b-6 [Footnote 29] is an antimanipulative provision designed to protect the orderliness of the securities market during distributions of stock. The Rule, in essence ,prohibits issuers whose stock is in the process of distribution from market tampering by purchasing either the stock or rights to purchase the stock until the distribution has been completed. The purpose of the Rule is to prevent stimulative trading by an issuer in its own securities in order to create an unnatural and unwarranted appearance of market activity. See generally E. Aranow & H. Einhorn, Tender Offers for Corporate Control 131 (1973). Here, the Court of Appeals held, and its holding is unchallenged, that the cash purchases of Piper stock during the pendency of Bangor's exchange offer constituted purchases of "right[s] to purchase" Bangor stock within the meaning of Rule 10b-6. [Footnote 30]Without questioning the finding of Rule 10b-6 violations, Bangor strenuously argues that Chris-Craft fails the standing test applied in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975). [Footnote 31] The concern of Rule 10b-6 in these circumstances, Bangor suggests, is to foreclose manipulative trading which would affect the price of Bangor Punta stock, since Bangor Punta securities were being distributed Page 430 U. S. 44 in the exchange offer. Because Chris-Craft neither purchased nor sold Bangor securities, it is foreclosed, under Bangor's analysis, from suing under Rule 10b-6.If we accepted Bangor's analysis, Rule 10b-6 would provide no remedy for an entire class of persons who actually purchased or sold securities, namely, those investors who either bought or sold Piper stock, which, in turn, represented "rights" to purchase Bangor stock then in distribution. This class of securities would, under the SEC's theory, be potentially affected by Bangor's off-exchange purchases, since acquisitions of rights to acquire stock during a distribution have, under the SEC's view of Rule 10b, at least the potential for artificially raising the price of those rights. Thus, Bangor's theory would foreclose, among others, any investors who purchased Piper stock after the unlawful acquisitions; this would be true even though the price paid for the stock might be shown to reflect the stimulative effects of Bangor's off-market, block purchases. In this respect, this case is readily distinguishable from Blue Chip, where the complainants made no purchases of stock at all; unlike that situation, here, Chris-Craft was a purchaser of Piper common stock, the very class of securities with respect to which Bangor was held to have committed Rule 10b-6 violations.We conclude, however, that these cases do not call for a definitive resolution of the law of standing under Rule 10b-6, as Bangor would have us do. Nor do we find it appropriate to do so under the unusual circumstances presented here. First, the Court of Appeals, although sensitive to the Birnbaum issue, did not have the benefit of our decision in Blue Chip in resolving the standing issue. Second, in this Court, both Chris-Craft and the United States, in its amicus brief on certiorari, contend that § 14(e)'s broad prohibition of "manipulative acts or practices" in tender offers embraces acts proscribed under the more specific mandate of Rule 10b-6. Brief for Respondent 56; Brief for United States as Page 430 U. S. 45 Amicus Curiae 16-17. Thus, to this extent, the issue of Rule 10b-6 standing has not been fully explored by the parties because of their initial misconception as to Chris-Craft's standing to sue for damages under § 14(e).Although we reserve judgment on the broader standing issues arising under Rule 10b-6, we hold that, in the context of these cases, Chris-Craft is without standing to sue for damages on account of Bangor's alleged Rule 10b-6 violations. Our holding is based upon one critical factor: as the parties themselves have framed the issues for resolution in this litigation, Chris-Craft is clearly outside the express concern of Rule 10b-6. At no time has Chris-Craft complained of or even suggested that the price which it paid for Piper shares was influenced by Bangor's Rule 10b-6 violations. Indeed, Chris-Craft does not assert standing as a Piper shareholder; on the contrary, it claims damages because, in its view of the case, it lost the opportunity to gain control of Piper by virtue of Bangor's Rule 10b-6 violations. Assuming the correctness of this theory, the fact remains that Rule 10b-6 is not directed at or concerned with contests for corporate control. This technical rule is focused narrowly upon a precise goal -- maintaining an orderly market for the distribution of securities free from artificial or manipulative influences. Thus, as the issues have been framed, Chris-Craft did not come to the courts in the posture of a hoodwinked investor victimized by market manipulation; its complaint, as we noted, is that it lost a chance to gain control of a corporation, a claim beyond the bounds of the specific concern of Rule 10b-6.Our conclusion in this respect is buttressed by the close relationship of Rule 10b-6 with § 9 of the 1934 Act, 15 U.S.C. § 78i. Section 9, among other things, prohibits transactions by issuers in their own securities, if forbidden by SEC regulations, even though the transactions are designed to stabilize the market for the issuer's stock. § 78i(a)(6). The SEC suggests in its amicus brief that Rule Page 430 U. S. 46 10b-6 was promulgated pursuant to the Commission's authority under § 9(a)(6), [Footnote 32] as well as under § 10(b) of the 1934 Act. It contends that, in view of this bifurcated statutory origin, Chris-Craft need only be a purchaser of Piper stock to have standing under Rule 10b-6, since § 9 requires only that an aggrieved party have purchased or sold "any security" affected by the violation. 15 U.S.C. § 78i(e). Under this view, Chris-Craft's failure to purchase Bangor Punta stock is irrelevant, since its purchases of Piper shares satisfied the "any security" requirement of § 9.Unlike § 10(b), however, § 9 provides an express cause of action for persons injured by unlawful market activities. 15 U.S.C. § 78i(e). Yet that cause of action is framed specifically in favor of "any person who shall purchase or sell any security at a price which was affected by such act or transaction. . . ." Ibid. (Emphasis supplied.) Congress therefore focused in § 9 upon the amount actually paid by an investor for stock that had been the subject of manipulative activity. This is not, as we have seen, the gravamen of Chris-Craft's complaint. It seeks no recovery for an improper premium exacted for Piper stock; rather, it desires compensation for its lost opportunity to control Piper. We therefore conclude that, on its claimed basis for relief, Chris-Craft cannot avail itself of Rule 10b-6. Page 430 U. S. 47VIOur resolution of these issues makes it unnecessary to address the other questions raised by the parties in their petitions for certiorari. Since we have concluded that Chris-Craft cannot avail itself of § 14(e) or Rule 10b-6 in its suit for damages, it is unnecessary to consider the Court of Appeals' holdings with respect to scienter, causation, the calculation of damages, the imposition of joint and several liability, the liability of underwriters in § 14(e) damages actions, and the award of prejudgment interest.Apart from awarding damages, however, the Court of Appeals also ordered the District Court to enjoin Bangor Punta from voting the illegally acquired Piper shares for a period of five years. In compliance with that directive, Judge Pollack on remand entered an injunction to remain in effect for a period of five years from November 12, 1974, the date on which judgment was entered. 384 F. Supp. at 528-529. On appeal, the Court of Appeals affirmed that portion of the District Court's order.We hold that, under the circumstances presented here, this injunction should not have been granted. As we previously indicated, Chris-Craft prior to the trial on liability expressly waived any claim to injunctive relief. The case was tried in the District Court, without a jury, exclusively as a suit for damages. See 337 F. Supp. at 1136 n. 8, 1137, 1141-1142, n. 18, 1146. Accord, 480 F.2d at 355, 379. Under these circumstances, our holding that Chris-Craft does not have a cause of action for damages under § 14(e) or Rule 10b-6 renders that injunction inappropriate, premised as it was upon the impermissible award of damages. [Footnote 33] The inappropriateness Page 430 U. S. 48 of the injunction is particularly acute in this litigation, where the order was entered almost four years after the contest for control had ended and where no regard was given to the interests of the protected class of shareholder-offerees, many of whom would be at least indirectly disadvantaged by the award. [Footnote 34]Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtPiper v. Chris-Craft Industries, Inc., 430 U.S. 1 (1977)Piper v. Chris-Craft Industries, Inc.No. 75-353Argued October 6, 1976Decided February 23, 1977*430 U.S. 1SyllabusRespondent Chris-Craft Industries was the unsuccessful tender offeror in a contest for the control of a corporation. During the course of the takeover contest, Chris-Craft brought suit for damages and injunctive relief against the management of the target corporation, its investment adviser, and Bangor Punta Corp., the successful competitor, alleging, inter alia, violations of § 14(e) and other provisions of the Securities Exchange Act of 1934, and Rule 10b-6 of the Securities and Exchange Commission. Section 14(e) makes unlawful"any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer . . . or any solicitation of security holders in opposition to or in favor of any such offer. . . ."Rule 10b-6 prohibits issuers whose stock is in the process of distribution from market tampering by purchasing stock or stock rights until the distribution has been completed. After protracted litigation, the Court of Appeals ultimately held that Chris-Craft had standing to sue for damages under § 14(e) and Rule 10b-6, and that a claim for damages had been established. The court stated that it would not infer from the silence of the statute that Congress intended to deny a federal remedy as a "means of furthering the general Page 430 U. S. 2 objective of § 14(e). . . ." On the merits the court found violations of § 14(e) by all the defendants and violations of Rule 10b-6 by the successful competitor. The court then remanded for a determination of the amount of damages, and instructed the District Court to enjoin the successful competitor for at least five years from voting the target company's shares acquired through violation of § 14(e) and Rule 10b-6.Held:1. A tender offeror, suing in its capacity as a takeover bidder, does not have standing to sue for damages under § 14(e); hence, the Court of Appeals erred in holding that Chris-Craft, as a defeated tender offeror, had an implied cause of action for damages under that provision. Pp. 430 U. S. 24-42.(a) The legislative history shows that the sole purpose of § 14(e) was the protection of investors who are confronted with a tender offer. Congress was intent on regulating takeover bidders, who had previously operated covertly, in order to protect shareholders of target companies; tender offerors, the class regulated by the statute, were not the intended beneficiaries of the legislation. Pp. 430 U. S. 26-37.(b) The creation of an implied cause of action for damages by judicial interpretation, such as is urged by Chris-Craft, is not necessary to effectuate Congress' objectives in enacting § 14(e). This conclusion is confirmed by the four factors identified in Cort v. Ash, 422 U. S. 66, as "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one: (i) Chris-Craft, a member of the class whose activities Congress intended to regulate for the benefit of target shareholders, was not "one of the class for whose especial benefit [§ 14(e)] was enacted . . .'"; (ii) although nothing in the legislative history manifests an intent to deny a damages remedy to tender offerors, there is no material showing an intention to create such a remedy, and the pervasive legislative history negates any claim that the statute was intended to provide tender offerors with additional weapons in contests for control; (iii) it is not consistent with the underlying legislative purpose to imply a damages remedy for the tender offeror in a statute especially designed to protect shareholders of target corporations, particularly where the damages award (here $36 million to Chris-Craft) favors the tender offeror, not the "injured" shareholders of the target; and (iv) the cause of action by a tender offeror is one appropriately "relegated to state law," to the extent that the offeror seeks damages for loss of an opportunity to control a corporation. Pp. 430 U. S. 37-41.2. In the context of this case, Chris-Craft has no standing to sue for damages on account of the asserted Rule 10b-6 violations by the Page 430 U. S. 3 successful competitor, since Chris-Craft's complaint is not that the price paid for the target company's shares was influenced by the Rule 106 violations, but that the opportunity to gain control of the target company was lost by virtue of those violations. Thus, Chris-Craft's complaint does not implicate the concerns of Rule 10b, which is aimed at maintaining an orderly market for the distribution of securities free from manipulative influences. Pp. 430 U. S. 42-46.3. The Court of Appeals erred, under the circumstances presented here, in awarding Chris-Craft injunctive relief. The case was tried in the District Court exclusively as a suit for damages after Chris-Craft expressly waived any claim to injunctive relief. Under these circumstances, this Court's holding that Chris-Craft has no cause of action for damages under either § 14(e) or Rule 106 renders the injunction granted by the District Court inappropriate, premised as it was upon the impermissible award of damages. Pp. 430 U. S. 47-48.516 F.2d 172, reversed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 430 U. S. 48. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 430 U. S. 53. Page 430 U. S. 4

1978_77-1248

MR. JUSTICE MARSHALL delivered the opinion of the Court.Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. [Footnote 1] However, a different standard applies in elections Page 440 U. S. 176 for offices of political subdivisions of the State. The minimum number of signatures required for those elections is 5% of the number of persons who voted at the previous election for offices of the particular subdivision. [Footnote 2] In the city of Chicago, application of this standard has produced the incongruous Page 440 U. S. 177 result that a new party or an independent candidate needs substantially more signatures to gain access to the ballot than a similarly situated party or candidate for statewide office. [Footnote 3] The question before us is whether this discrepancy violates the Equal Protection Clause of the Fourteenth Amendment.IIn January, 1977, the Chicago City Council ordered a special mayoral election to be held on June 7, 1977, to fill the vacancy created by the death of Mayor Richard J. Daley. Pursuant to that order, the Chicago Board of Election Commissioners (Chicago Board) issued an election calendar that listed the filing dates and signature requirements applicable to independent candidates and new political parties. Independent candidates had to obtain 35,947 valid signatures by February 19, and new political parties were required to file petitions with 63,373 valid signatures by April 4. [Footnote 4] Subsequently, the Chicago Board and the State Board of Elections (State Board) agreed for purposes of the special election to bring into conformity the requirements for independent candidates Page 440 U. S. 178 and new parties. The filing deadline for independents was extended to April 4, and the signature requirement for new parties was reduced to 35,947.Because they had received less than 5% of the votes cast in the last mayoral election, the Socialist Workers Party and United States Labor Party were new political parties as defined in the Illinois statute. See n 1, supra. Along with Gerald Rose, a candidate unaffiliated with any party, they were therefore subject to the signature requirements and filing deadlines specified in the election calendar. On January 24, 1977, the Socialist Workers Party and two voters who supported its candidate for Mayor brought this action against the Chicago Board and the State Board to enjoin enforcement of the signature requirements and filing deadlines for new parties. [Footnote 5] One week later, Gerald Rose, the United States Labor Party, and four voters sued the Chicago Board, challenging the restrictions on new parties and independent candidates. The State Board intervened as a defendant pursuant to 28 U.S.C. § 2403, and the District Court consolidated the two cases for trial.Plaintiff-appellees contended at trial that the discrepancy between the requirements for state and city elections violated the Equal Protection Clause. They argued further that the restrictions on independent candidates and new parties were unconstitutionally burdensome in the context of a special election because of the short time for collection of signatures between notice of the election and the filing deadline. The Page 440 U. S. 179 Chicago Board's primary response was that the decision in Jackson v. Ogilvie, 325 F. Supp. 864 (ND Ill.), summarily aff'd, 403 U.S. 925 (1971), upholding Illinois' 5% signature requirement, foreclosed the constitutional challenge in this case. [Footnote 6]In an opinion issued on March 14, 1977, the District Court determined that Jackson addressed neither the circumstances of a special election nor the disparity between state and city signature requirements at issue here. Socialist Workers Party v. Chicago Bd. of Election Comm'rs, 433 F. Supp. 11, 16-17, 19. On the merits of appellees' equal protection challenge, the court found"[no] rational reason why a petition with identical signatures can satisfy the legitimate state interests for restricting ballot access in state elections, and yet fail to do the same in a lesser unit. Lendall v. Jernigan, 424 F. Supp. 951 (ED Ark.1977). Any greater requirement than 25,000 signatures cannot be said to be the least drastic means of accomplishing the state's goals, and must be found to unduly impinge [on] the constitutional rights of independents, new political parties, and their adherents."Id. at 20 (footnote omitted). Accordingly, the District Court permanently enjoined the enforcement of the 5% provision insofar as it mandated more than 25 000 signatures, the number required for statewide elections. The court also declined to dismiss appellees' claim Page 440 U. S. 180 that the April 4 filing deadline, coupled with the signature requirement, impermissibly burdened First and Fourteenth Amendment rights, but it postponed a decision on this issue pending submission of additional evidence to justify the selection of that date.On March 17, 1977, the Chicago Board and the appellees concluded a settlement agreement with respect to the unresolved issues. T he agreement was incorporated into an order entered the same day which provided that, "solely as applied to the Special Mayoral Election to be held in Chicago on June 7, 1977," the signature requirement would be reduced to 20,000 and the filing deadline extended to April 18. App. 74. The District Court denied the State Board's subsequent motion to vacate both orders.The State Board, but not the Chicago Board, appealed from both the March 14 order and the March 17 order. In a per curiam decision rendered six months after the election, the Court of Appeals for the Seventh Circuit adopted the opinion of the District Court. 566 F.2d 586, 587 (1977). Also, with respect to the March 17 order, the Court of Appeals dismissed as moot the State Board's contention that the Chicago Board lacked authority to conclude a settlement agreement without prior state approval. In so ruling, the court noted that the settlement order applied only to the June 7 election, which had long passed, and held that the question of the Chicago Board's authority for its actions was not "capable of repetition, yet evading review," id. at 588, quoting DeFunis v. Odegaard, 416 U. S. 312, 416 U. S. 318-319 (1974).We noted probable jurisdiction, 435 U.S. 994 (1978), and we now affirm.IIAppellant argues here, as it did below, that this Court's summary affirmance of Jackson v. Ogilvie, supra, is dispositive of the equal protection challenge here. In analyzing this contention, we note at the outset that summary affirmances have considerably less precedential value than an opinion on Page 440 U. S. 181 the merits. See Edelman v. Jordan, 415 U. S. 651, 415 U. S. 671 (1974). As MR. CHIEF JUSTICE BURGER observed in Fusari v. Steinberg, 419 U. S. 379, 419 U. S. 392 (1975) (concurring opinion),"upon fuller consideration of an issue under plenary review, the Court has not hesitated to discard a rule which a line of summary affirmances may appear to have established."See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 428 U. S. 14 (1976).Moreover, we agree with the District Court's conclusion that Jackson does not govern the issues currently before us. In that case, the Reverend Jesse Jackson, an independent candidate for Mayor of Chicago, attacked the 5% signature requirement for independent candidates as an impermissible burden on the exercise of First Amendment rights. He contended as well that the discrepancy between the 5% rule and the less stringent requirements for candidates of established political parties violated the Equal Protection Clause. A three-judge District Court rejected both claims, finding the 5% requirement reasonable and the burdens imposed on independent and established party candidates roughly equivalent. Appellees mount a different challenge. They do not attack the lines drawn between independent and established party candidates. Rather, their equal protection claim rests on the discrimination between those independent candidates and new parties seeking access to the ballot in statewide elections and those similarly situated candidates and parties seeking access in city elections.Appellant urges, however, that even though the District Court in Jackson did not explicitly mention the equal protection issue presented here, the issue was raised in a memorandum supporting Jackson filed with the District Court by the State. In the course of arguing that the election law discriminated against independent candidates, the memorandum stated"It must also be remembered that it is even more difficult for an independent candidate to obtain signatures than Page 440 U. S. 182 it would be for an independent party. Yet a whole new State political party needs only 25,000 signatures through out the entire State for state officers (Section 12), while a single independent candidate for only the office of Mayor of Chicago needs almost 60,000 signatures. This also is an invidious discrimination against one seeking the office of Mayor of Chicago."Memorandum of Law, App. to Juris.Statement in Jackson v. Ogilvie, O.T. 1970, No.70-1341, p. B-23. [Footnote 7] In view of the District Court's ultimate decision, appellant contends, this issue was necessarily resolved against Jackson, and therefore was resolved by this Court as well in its summary affirmance.The District Court in Jackson, however, framed the equal protection issue before it as"whether [the 5% signature] requirement operates to discriminate against the plaintiff by depriving him of a right granted to candidates of established political parties."325 F. Supp. at 868. The jurisdictional statement posed the question in similar terms. Juris.Statement in Jackson v. Ogilvie, O.T. 1970, No. 70-1341, pp. 14-15. Although the jurisdictional statement alluded to the State's memorandum, id. at 15, and incorporated it as a separate appendix, id. at B-21 - B-24, at no point did it directly address the question now before us.This omission disposes of appellant's argument. As we stated in Mandel v. Bradley, 432 U. S. 173, 432 U. S. 176 (1977), the precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms Page 440 U. S. 183 only the judgment of the court below, ibid., quoting Fusari v. Steinberg, supra at 419 U. S. 391-392 (BURGER, C.J., concurring), and no more may be read into our action than was essential to sustain that judgment. See Usery v. Turner Elkhorn Mining Co., supra at 428 U. S. 14; McCarthy v. Philadelphia Civil Service Comm'n, 424 U. S. 645, 424 U. S. 646 (1976) (per curiam). Questions which "merely lurk in the record," Webster v. Fall, 266 U. S. 507, 266 U. S. 511 (1925), are not resolved, and no resolution of them may be inferred. Assuming that the State's memorandum in Jackson can be read as advancing the issue presented here, see n 7, supra, the issue was by no means adequately presented to, and necessarily decided by, this Court. Jackson therefore has no effect on the constitutional claim advanced by appellees.IIIIn determining whether the Illinois signature requirements for new parties and independent candidates as applied in the city of Chicago violate the Equal Protection Clause, we must examine the character of the classification in question, the importance of the individual interests at stake, and the state interests asserted in support of the classification. See Memorial Hospital v. Maricopa County, 415 U. S. 250, 415 U. S. 253-254 (1974); Dunn v. Blumstein, 405 U. S. 330, 405 U. S. 335 (1972); Kramer v. Union School Dist., 395 U. S. 621, 395 U. S. 626 (1969); Williams v. Rhodes, 393 U. S. 23, 393 U. S. 30 (1968).The provisions of the Illinois Election Code at issue incorporate a geographic classification. For purposes of setting the minimum signature requirements, the Code distinguishes state candidates, political parties, and the voters supporting each, from city candidates, parties, and voters. In 1977, an independent candidate or a new political party in Chicago, a city with approximately 718,937 voters eligible to sign nominating petitions for the mayoral election in 1977, [Footnote 8] had to Page 440 U. S. 184 secure over 10,000 more signatures on nominating petitions than an independent candidate or new party in state elections, who had a pool of approximately 4.5 million eligible voters from which to obtain signatures. [Footnote 9] That the distinction between state and city elections undoubtedly is valid for some purposes does not resolve whether it is valid as applied here.Restrictions on access to the ballot burden two distinct and fundamental rights,"the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively."Williams v. Rhodes, supra, at 393 U. S. 30. The freedom to associate as a political party, a right we have recognized as fundamental, see 393 U.S. at 393 U. S. 30-31, has diminished practical value if the party can be kept off the ballot. Access restrictions also implicate the right to vote because, absent recourse to referendums, "voters can assert their preferences only through candidates or parties or both." Lubin v. Panish, 415 U. S. 709, 415 U. S. 716 (1974). By limiting the choices available to voters, the State impairs the voters' ability to express their political preferences. And for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure. Wesberry v. Sanders, 376 U. S. 1, 376 U. S. 17 (1964); Reynolds v. Sims, 377 U. S. 533, 377 U. S. 555 (1964); Dunn v. Blumstein, supra, at 405 U. S. 336.When such vital individual rights are at stake, a State must establish that its classification is necessary to serve a compelling interest. American Party of Texas v. White, 415 U. S. 767, 415 U. S. 780-781 (1974); Storer v. Brown, 415 U. S. 724, 415 U. S. 736 (1974); Williams v. Rhodes, supra at 393 U. S. 31. To be sure, the Court has previously acknowledged that States have a Page 440 U. S. 185 legitimate interest in regulating the number of candidates on the ballot. In Lubin v. Panish, supra at 415 U. S. 715, we observed:"A procedure inviting or permitting every citizen to present himself to the voters on the ballot without some means of measuring the seriousness of the candidate's desire and motivation would make rational voter choices more difficult, because of the size of the ballot, and hence would tend to impede the electoral process. . . . The means of testing the seriousness of a given candidacy may be open to debate; the fundamental importance of ballots of reasonable size limited to serious candidates with some prospects of public support is not."Similarly, in Bullock v. Carter, 405 U. S. 134, 405 U. S. 145 (1972) (footnote omitted), the Court expressed concern for the States' need to assure that the winner of an election "is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections." Consequently, we have upheld properly drawn statutes that require a preliminary showing of a "significant modicum of support" before a candidate or party may appear on the ballot. Jenness v. Fortson, 403 U. S. 431, 403 U. S. 442 (1971); see, e.g., American Party of Texas v. White, supra.However, our previous opinions have also emphasized that, "even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty," Kusper v. Pontikes, 414 U. S. 51, 414 U. S. 58-59 (1973), and we have required that States adopt the least drastic means to achieve their ends. Lubin v. Panish, supra at 415 U. S. 716; Williams v. Rhodes, supra at 393 U. S. 31-33. This requirement is particularly important where restrictions on access to the ballot are involved. The States' interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation. Abolitionists, Progressives, and Populists have undeniably had influence, if not always electoral Page 440 U. S. 186 success. As the records of such parties demonstrate, an election campaign is a means of disseminating ideas, as well as attaining political office. See A. Bickel, Reform and Continuity 79-80 (1971); W. Binkley American Political Parties 181-205 (3d ed.1959); H. Penniman, Sait's American Political Parties and Elections 223-239 (5th ed.1952). Overbroad restrictions on ballot access jeopardize this form of political expression.The signature requirements for independent candidates and new political parties seeking offices in Chicago are plainly not the least restrictive means of protecting the State's objectives. The Illinois Legislature has determined that its interest in avoiding overloaded ballots in statewide elections is served by the 25,000 signature requirement. Yet appellant has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for Chicago. At oral argument. appellant explained that the signature provisions for statewide elections originally reflected a different approach than those for elections in political subdivisions. Tr. of Oral Arg. 35-37. Not only were independent candidates and new political parties in state elections required to obtain 25,000 signatures, but those signatures also had to meet standards pertaining to geographic distribution. By comparison, candidates and parties in city elections had only to obtain signatures from a flat percentage of the qualified voters. In Moore v. Ogilvie, 394 U. S. 814 (1969), this Court struck down on equal protection grounds Illinois' requirement that the nominating petition of a candidate for statewide office include the signatures of at least 200 qualified voters from at least 50 counties. Following Moore, the Court of Appeals for the Seventh Circuit invalidated a provision in the amended statute which specified that no more than 13,000 signatures on a new party's petition for statewide elections could come from any one county. Communist Party of Illinois v. State Board of Elections, 518 F.2d 517, cert. denied, Page 440 U. S. 187 423 U.S. 986 (1975). Thus, appellant noted, the invalidation of the geographic constraints has tied the requirements for both city and state candidates solely to a population standard, giving rise to the anomaly at issue here.Although this account may explain the anomaly, appellant still has suggested no reasons that justify its continuation. Historical accident, without more, cannot constitute a compelling state interest. We therefore hold that the Illinois Election Code is unconstitutional insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago.IVAppellant finally challenges the Court of Appeals' disposition of its appeal from the March 17 settlement order. The court dismissed as moot appellant's claim that the Chicago Board lacked authority to conclude a settlement agreement without the State's consent. In appellant's view, the court erred in not placing this claim within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911).In Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149 (1975), we elaborated on this exception, holding that a case is not moot when:"(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again "Although the first branch of the test is satisfied here, appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections. Appellant's conclusory assertions that the actions are capable of repetition Page 440 U. S. 188 are not sufficient to satisfy the Weinstein test, particularly since appellant does not contend that the Chicago Board has ever attempted previously to conclude litigation without its approval. The Chicago Board's entry into a settlement agreement reflected neither a policy it had determined to continue, cf. United States v. New York Telephone Co., 434 U. S. 159, 434 U. S. 165 n. 6 (1977), nor even a consistent pattern of behavior, cf. SEC v. Sloan, 436 U. S. 103, 436 U. S. 109-110 (1978). And the Chicago Board's action patently was not a matter of statutory prescription, as was the case in other election decisions on which appellant relies, e.g., Storer v. Brown, 415 U.S. at 415 U. S. 737 n. 8; Moore v. Ogilvie, supra, at 394 U. S. 816. We therefore find that appellant's challenge was properly dismissed as moot.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtIllinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)Illinois State Board of Elections v. Socialist Workers PartyNo. 77-1248Argued November 6, 1978Decided February 22, 1979440 U.S. 173SyllabusUnder the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. However, the minimum number of signatures required in elections for offices of political subdivisions of the State is 5% of the number of persons who voted at the previous election for such offices. Application of these provisions to a special mayoral election in Chicago produced the result that a new party or independent candidate needed substantially more signatures than would be needed for ballot access in a statewide election. In actions by appellees, an independent candidate, two new political parties, and certain voters, challenging this discrepancy on equal protection grounds, the District Court enjoined enforcement of the 5% provision insofar as it mandated more than 25,000 signatures, and the Court of Appeals affirmed.Held:1. This Court's summary affirmance in Jackson v. Ogilvie, 403 U.S. 925, of the District Court's decision in 325 F. Supp. 864, upholding Illinois' 5% signature requirement is not dispositive of the equal protection question presented here. The precedential effect of a summary affirmance can extend no further than "the precise issues presented and necessarily decided by those actions," Mandel v. Bradley, 432 U. S. 173, 432 U. S. 176. In contrast to this case, the challenge in Jackson involved only the discrepancy between the 5% requirement and the less stringent requirements for candidates of established political parties. The issue presented here was not referred to by the Jackson District Court, and was mentioned only in passing in the jurisdictional statement subsequently filed with this Court. Thus, the issue was not adequately presented to, or decided by, this Court in its summary affirmance. Pp. 440 U. S. 180-183.2. The Illinois Election Code, insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 440 U. S. 183-187. Page 440 U. S. 174(a) When such fundamental rights as the freedom to associate as a political party and the right to cast votes effectively are at stake, a State must establish that its regulation of ballot access is necessary to serve a compelling interest. Pp. 440 U. S. 184-185.(b) "[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty," Kusper v. Pontikes, 414 U. S. 51, 414 U. S. 58-59, and States must adopt the least drastic means to achieve their ends. This requirement is particularly important where restrictions on access to the ballot are involved. Since the State has determined that a smaller number of signatures in a larger political unit adequately serves its interest in regulating the number of candidates on the ballot, the signature requirements for independent candidates and political parties seeking offices in Chicago are clearly not the least restrictive means of achieving the same objective. Appellant State Board of Elections has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for elections in Chicago than for statewide elections. Pp. 440 U. S. 185-186.(c) Prior invalidation of Illinois' rules regarding geographic distribution of signatures tied the requirements for both city and state candidates solely to a population standard. However, while this may explain the anomaly at issue here, it does not justify it. Historical accident, without more, cannot constitute a compelling state interest. Pp. 440 U. S. 186-187.3. The Court of Appeals properly dismissed as moot appellant's claim that the Chicago Board of Election Commissioners lacked authority to conclude a settlement agreement with respect to the unresolved issue whether the 5% signature requirement, coupled with the filing deadline, impermissibly burdened First and Fourteenth Amendment rights. Appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections. Pp. 440 U. S. 187-188.566 F.2d 586, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, BLACKMUN, and POWELL, .JJ., joined, and in Parts I, II, and IV of which STEVENS, J. joined. BLACKMUN, J., filed a concurring opinion, post p. 440 U. S. 188. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post p 440 U. S. 189. BURGER, C.J., concurred in the judgment. REHNQUIST, J., filed an opinion concurring in the judgment. post p. 440 U. S. 190. Page 440 U. S. 175

1963_204

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The question is whether the 1959 acquisition by the Aluminum Company of America (Alcoa) of the stock and assets of the Rome Cable Corporation (Rome) "may Page 377 U. S. 273 be substantially to lessen competition, or to tend to create a monopoly" in the production and sale of various wire and cable products and accessories within the meaning of § 7 of the Clayton Act. [Footnote 1] The United States, claiming that § 7 had been violated, instituted this civil suit and prayed for divestiture. The District Court, after a trial, held that there was no violation, and dismissed the complaint. 214 F. Supp. 501. The case is here on appeal, 15 U.S.C. § 29, and we noted probable jurisdiction. 375 U.S. 808.IThe initial question concerns the identification of the "line of commerce," as the term is used in § 7.Aluminum wire and cable (aluminum conductor) is a composite of bare aluminum wire and cable (bare aluminum conductor) and insulated or covered wire and cable (insulated aluminum conductor). These products are designed almost exclusively for use by electric utilities in carrying electric power from generating plants to consumers throughout the country. Copper conductor wire and cable (copper conductor) is the only other product utilized commercially for the same general purpose. Rome produced both copper conductor and aluminum conductor. In 1958 -- the year prior to the merger -- it produced 0.3% of total industry production of bare aluminum Page 377 U. S. 274 conductor, 4.7% of insulated aluminum conductor, and 1.3% of the broader aluminum conductor line.Alcoa produced no copper conductor. In 1958, it produced 32.5% of the bare aluminum conductor, 11.6% of insulated aluminum conductor, and 27.8% of aluminum conductor.These products, as noted, are most often used by operating electrical utilities. Transmission and distribution lines [Footnote 2] are usually strung above ground, except in heavily congested areas, such as city centers, where they are run underground. Overhead, where the lines are bare or not heavily insulated, aluminum has virtually displaced copper, except in seacoast areas, as shown by the following table:bwm:Percent of Aluminum Conductor in Gross Additionsto Overhead Utility Lines1950 1955 1959Transmission Lines (All Bare Conductor) 74.4% 91.0% 94.4%Distribution Lines:Bare Conductor . . . . . . . . . . . . 35.5 64.4 79.0Insulated Conductor. . . . . . . . . . 6.5 51.6 77.2Total, Transmission and Distribution Lines 25.0 60.9 80.1ewm:Underground, where the conductor must be heavily insulated, copper is virtually the only conductor used. In sum, while aluminum conductor dominates the overhead field, copper remains virtually unrivaled in all other conductor applications.The parties agree, and the District Court found, that bare aluminum conductor is a separate line of commerce. The District Court, however, denied that status to the broader aluminum conductor line, because it found that insulated aluminum conductor is not an appropriate line Page 377 U. S. 275 of commerce separate and distinct from its copper counterpart. The court said the broad product group cannot result in a line of commerce, since a line of commerce cannot be composed of two parts, one of which independently qualifies as a line of commerce and one of which does not.Admittedly, there is competition between insulated aluminum conductor and its copper counterpart, as the District Court found. Thus, in 1959, insulated copper conductor comprised 22.8% of the gross additions to insulated overhead distribution lines. This is enough to justify grouping aluminum and copper conductors together in a single product market. Yet we conclude, contrary to the District Court, that that degree of competitiveness does not preclude their division for purposes of § 7 into separate submarkets, just as the existence of broad product markets in Brown Shoe Co. v. United States, 370 U. S. 294, did not preclude lesser submarkets. [Footnote 3]Insulated aluminum conductor is so intrinsically inferior to insulated copper conductor that, in most applications, it has little consumer acceptance. But, in the field of overhead distribution, it enjoys decisive advantages -- its share of total annual installations increasing from 6.5% in 1950 to 77.2% in 1959. In the field of overhead distribution, the competition of copper is rapidly decreasing. As the record shows, utilizing a high-cost metal, fabricators of insulated Page 377 U. S. 276 copper conductor are powerless to eliminate the price disadvantage under which they labor, and thus can do little to make their product competitive unless they enter the aluminum field. The price of most insulated aluminum conductors is indeed only 50% to 65% of the price of their copper counterparts, and the comparative installed costs are also generally less. As the District Court found, aluminum and copper conductor prices do not respond to one another.Separation of insulated aluminum conductor from insulated copper conductor and placing it in another submarket is, therefore, proper. It is not inseparable from its copper equivalent, though the class of customers is the same. The choice between copper and aluminum for overhead distribution does not usually turn on the quality of the respective products, for each does the job equally well. The vital factors are economic considerations. It is said, however, that we should put price aside, and Brown Shoe, supra, is cited as authority. There, the contention of the industry was that the District Court has delineated too broadly the relevant submarkets -- men's shoes, women's shoes, and children's shoes -- and should have subdivided them further. It was argued for example, that men's shoes selling below $8.99 were in a different product market from those selling above $9. We declined to make price, particularly such small price differentials, the determinative factor in that market. A purchaser of shoes buys with an eye to his budget, to style, and to quality, as well as to price. But here, where insulated aluminum conductor, price-wise, stands so distinctly apart, to ignore price in determining the relevant line of commerce is to ignore the single most important, practical factor in the business.The combination of bare and insulated aluminum conductor products into one market or line of commerce Page 377 U. S. 277 seems to us proper. [Footnote 4] Both types are used for the purpose of conducting electricity, and are sold to the same customers, electrical utilities. While the copper conductor does compete with aluminum conductor, each has developed distinctive end uses -- aluminum as an overhead conductor and copper for underground and indoor wiring, applications in which aluminum's brittleness and larger size render it impractical. And, as we have seen, the price differential further sets them apart.Thus, contrary to the District Court, we conclude (1) that aluminum conductor and copper conductor are separable for the purpose of analyzing the competitive effect of the merger and (2) that aluminum conductor (bare and insulated) is therefore a submarket, and, for purposes of § 7 a "line of commerce."IITaking aluminum conductor as an appropriate "line of commerce," we conclude that the merger violated § 7.Alcoa is a leader in markets in which economic power is highly concentrated. Prior to the end of World War II, it was the sole producer of primary aluminum and the sole fabricator of aluminum conductor. It was held in 1945 to have monopolized the aluminum industry in violation of § 2 of the Sherman Act. See United States v. Aluminum Co., 148 F.2d 416. Relief was deferred while the United States disposed of its wartime aluminum facilities Page 377 U. S. 278 under a congressional mandate to establish domestic competition in the aluminum industry. [Footnote 5] As a result of that policy and further federal financing and assistance, five additional companies entered the primary aluminum field, so that, by 1960, the primary producers showed the following capacity:Aluminum Ingot Capacity Existing or UnderConstruction at the End of 1960[SHORT TONS]Company Capacity % of U.S.Aluminum Company of America 1,025,250 38.6Reynolds Metals Company 701,000 26.4Kaiser Aluminum & Chemical Corp. 609,500 23.0Ormet, Inc 180,000 6.8Harvey Aluminum 75,000 2.8Anaconda Aluminum Company 65,000 2.4United States total 2,655,750 100.0In 1958 -- the year prior to the merger -- Alcoa was the leading producer of aluminum conductor, with 27.8% of the market; in bare aluminum conductor, it also led the industry, with 32.5%. Alcoa plus Kaiser controlled 50% of the aluminum conductor market and, with its three leading competitors, more than 76%. Only nine concerns (including Rome, with 1.3%) accounted for 95.7% of the output of aluminum conductor. In the narrower market of insulated aluminum conductor, Alcoa was third with 11.6%, and Rome with eighth with 4.7%. Five companies controlled 65.4%, and four smaller ones, including Rome, added another 22.8%.In other words, the line of commerce showed highly concentrated markets, dominated by a few companies but Page 377 U. S. 279 served also by a small, though diminishing, [Footnote 6] group of independents. Such decentralization as has occurred resulted from the establishment of a few new companies through federal intervention, not from normal, competitive decentralizing forces.The proposition on which the present case turns was stated in United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 365, n. 42, as follows:"It is no answer that, among the three presently largest firms (First Pennsylvania, PNB, and Girard), there will be no increase in concentration. If this argument were valid, then, once a market had become unduly concentrated, further concentration would be legally privileged. On the contrary, if concentration is already great, the importance of preventing even slight increases in concentration, and so preserving the possibility of eventual deconcentration, is correspondingly great. "Page 377 U. S. 280The Committee Reports on § 7 show, as respects the Celler-Kefauver amendments in 1950, that the objective was to prevent accretions of power which "are individually so minute as to make it difficult to use the Sherman Act test against them." S.Rep. No. 1775, 81st Cong., 2d Sess., p. 5. And see H.R.Rep. No. 1191, 81st Cong., 1st Sess., p. 3. As the Court stated in Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 323:"Congress used the words 'may be substantially to lessen competition' (emphasis supplied), to indicate that its concern was with probabilities, not certainties. Statutes existed for dealing with clear-cut menaces to competition; no statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed by this Act."See also United States v. Philadelphia National Bank, 374 U.S. at 374 U. S. 362, and United States v. El Paso Natural Gas Co., 376 U. S. 651, 376 U. S. 658.The acquisition of Rome added, it is said, only 1.3% to Alcoa's control of the aluminum conductor market. But, in this setting, that seems to us reasonably likely to produce a substantial lessening of competition within the meaning of § 7. It is the basic premise of that law that competition will be most vital "when there are many sellers, none of which has any significant market share." United States v. Philadelphia National Bank, 374 U.S. at 374 U. S. 363. It would seem that the situation in the aluminum industry may be oligopolistic. As that condition develops, the greater is the likelihood that parallel policies of mutual advantage, not competition, will emerge. That tendency may well be thwarted by the presence of small but significant competitors. Though, percentage-wise, Rome may have seemed small in the year prior to the merger, it ranked ninth among all companies, and fourth Page 377 U. S. 281 among independents in the aluminum conductor market; and, in the insulated aluminum field, it ranked eighth and fourth, respectively. Furthermore, in the aluminum conductor market, no more than a dozen companies could account for as much as 1% of industry production in any one of the five years (1955-1959) for which statistics appear in the record. Rome's competition was therefore substantial. The record shows, indeed, that Rome was an aggressive competitor. It was a pioneer in aluminum insulation, and developed one of the most widely used insulated conductors. Rome had a broad line of high quality copper wire and cable products in addition to its aluminum conductor business, a special aptitude and skill in insulation, and an active and efficient research and sales organization. The effectiveness of its marketing organization is shown by the fact that, after the merger, Alcoa made Rome the distributor of its entire conductor line. Preservation of Rome, rather than its absorption by one of the giants, will keep it "as an important competitive factor," to use the words of S.Rep. No. 1775, supra, p. 3. Rome seems to us the prototype of the small independent that Congress aimed to preserve by § 7.The judgment is reversed, and, since there must be divestiture, the case is remanded to the District Court for proceedings in conformity with this opinion.Reversed

U.S. Supreme CourtUnited States v. Aluminum Co. of America, 377 U.S. 271 (1964)United States v. Aluminum Co. of AmericaNo. 204Argued April 23 1964Decided June 1, 1964377 U.S. 271SyllabusThe United States brought this civil antitrust suit alleging a violation of § 7 of the Clayton Act by Aluminum Company of America's (Alcoa's) 1959 acquisition of the stock and assets of Rome Cable Corporation (Rome), and asking for divestiture. Rome, which manufactured mainly insulated copper products, in 1958 produced 0.3% of the industry production of bare aluminum conductor, 4.7% of insulated aluminum conductor and 1.3% of aluminum conductor (the broader aluminum conductor line consisting of both bare and insulated conductor). Alcoa, which produced no copper conductor, in 1958 produced 32.5% of bare aluminum conductor, 11.6% of insulated aluminum conductor, and 27.8% of aluminum conductor. These products are used almost entirely by electrical utilities for transmission and distribution lines -- overhead lines in recent years consisting of mainly bare aluminum conductor and insulated aluminum conductor; underground lines consisting essentially of insulated copper conductor. The District Court found that bare aluminum conductor is a separate "line of commerce," but held that insulated aluminum conductor is not a line of commerce distinct from its copper counterpart, and, consequently that aluminum conductor generally is not a separate line of commerce. It dismissed the complaint.Held:1. Aluminum conductor is a submarket and a separate line of commerce for purposes of § 7. Pp. 377 U. S. 274-277.(a) The degree of competition between insulated aluminum conductor (a component of aluminum conductor) and insulated copper conductor, while enough to justify grouping them in a single product market, does not prevent their division into separate submarkets for § 7 purposes. Brown Shoe Co. v. United States, 370 U. S. 294, followed. P. 377 U. S. 275.(b) Dividing insulated aluminum conductor and its copper counterpart into separate submarkets is proper, since each has Page 377 U. S. 272 developed distinctive end uses, and the price differential, the most important practical factor in the trade, keeps them apart. P. 377 U. S. 276.(c) Bare and insulated aluminum conductor may be combined into one line of commerce, since they are distinct from their copper counterpart in use and price. Pp. 377 U. S. 276-277.2. The merger violated § 7, and divestiture is proper. Pp. 377 U. S. 277-281.(a) The purpose of § 7 is to proscribe mergers with a probable anticompetitive effect. P. 377 U. S. 280.(b) In an oligopolistic industry with a few dominant integrated companies and a small and diminishing group of independents, the prevention of increased concentration is important. Pp. 377 U. S. 278-281.(c) Rome ranked ninth among all companies and fourth among independents in the aluminum conductor market, and eighth and fourth, respectively, in the insulated aluminum line. Alcoa was the leading producer of aluminum conductor, and third in the insulated aluminum field. Pp. 377 U. S. 278, 377 U. S. 280-281.(d) The acquisition by Alcoa of Rome, though adding but 1.3% to Alcoa's share of the aluminum conductor market, would, in the framework of this industry, likely result in a substantial reduction of competition. P. 377 U. S. 280.214 F. Supp. 501, reversed and remanded.

1994_93-1636

Robert B. McDuff argued the cause for petitioners. With him on the briefs were Carlos A. Williams, Bryan Stevenson, and Bernard Harcourt.Paul R. Q. Wolfson argued the cause for the United States as amicus curiae in support of petitioners. On the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Beth S. Brinkmann, Jessica Dunsay Silver, and Linda F. Thome.Paul M. Smith argued the cause for respondents. With him on the brief for respondent Chambers County Commission were Bruce J. Ennis, Donald B. Verrilli, Jr., James W Webb, Kendrick E. Webb, and Bart Harmon. *JUSTICE GINSBURG delivered the opinion of the Court.In the wake of successive police raids on a nightclub in Chambers County, Alabama, two of the club's owners joined by an employee and a patron (petitioners here) sued the Chambers County Commission (respondent here), the city of Wadley, and three individual police officers. Petitioners sought damages and other relief, pursuant to 42 U. S. C. § 1983, for alleged civil rights violations. We granted certiorari to review the decision of the United States Court of Appeals for the Eleventh Circuit, which held that the Chambers County Commission qualified for summary judgment because the sheriff who authorized the raids was a state executive officer and not an agent of the county commission. We do not reach that issue, however, because we conclude*J. Michael McGuinness filed a brief for the Southern States Police Benevolent Association as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for Jefferson County, Alabama, by Charles S. Wagner; and for the National Association of Counties et al. by Richard Ruda.Mitchell F. Dolin, T. Jeremy Gunn, Steven R. Shapiro, Michael A. Cooper, Herbert J. Hansell, Norman Redlich, Thomas J. Henderson, and Sharon R. Vinick filed a brief for the American Civil Liberties Union et al. as amici curiae.38that the Eleventh Circuit lacked jurisdiction to rule on the county commission's liability at this interlocutory stage of the litigation.The Eleventh Circuit unquestionably had jurisdiction to review the denial of the individual police officer defendants' motions for summary judgment based on their alleged qualified immunity from suit. But the Circuit Court did not thereby gain authority to review the denial of the Chambers County Commission's motion for summary judgment. The commission's appeal, we hold, does not fit within the "collateral order" doctrine, nor is there "pendent party" appellate authority to take up the commission's case. We therefore vacate the relevant portion of the Eleventh Circuit's judgment and remand the case for proceedings consistent with this opinion.IOn December 14, 1990, and again on March 29, 1991, law enforcement officers from Chambers County and the city of Wadley, Alabama, raided the Capri Club in Chambers County as part of a narcotics operation. The raids were conducted without a search warrant or an arrest warrant. Petitioners filed suit, alleging, among other claims for relief, violations of their federal civil rights. Petitioners named as defendants the county commission; the city of Wadley; and three individual defendants, Chambers County Sheriff James C. Morgan, Wadley Police Chief Freddie Morgan, and Wadley Police Officer Gregory Dendinger.The five defendants moved for summary judgment on varying grounds. The three individual defendants asserted qualified immunity from suit on petitioners' federal claims. See Anderson v. Creighton, 483 U. S. 635, 639 (1987) (governmental officials are immune from suit for civil damages unless their conduct is unreasonable in light of clearly established law). Without addressing the question whether Wadley Police Chief Freddie Morgan, who participated in the39raids, was a policymaker for the municipality, the city argued that a respondeat superior theory could not be used to hold it liable under § 1983. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978) (a local government may not be sued under § 1983 for injury inflicted solely by its nonpolicymaking employees or agents). The Chambers County Commission argued that County Sheriff James C. Morgan, who authorized the raids, was not a policymaker for the county.The United States District Court for the Middle District of Alabama denied the motions for summary judgment. The District Court agreed that § 1983 liability could not be imposed on the city for an injury inflicted by a nonpolicymaking employee; that court denied the city's summary judgment motion, however, because the city had failed to argue that Wadley Police Chief Freddie Morgan was not its policymaker for law enforcement. Regarding the county commission's motion, the District Court was "persuaded by the Plaintiffs that Sheriff [James C.] Morgan may have been the final decision-maker for the County in ferreting out crime, although he is a State of Alabama employee." App. to Pet. for Cert. 67a. The District Court later denied the defendants' motions for reconsideration, but indicated its intent to revisit, before jury deliberations, the question whether Sheriff Morgan was a policymaker for the county:"The Chambers County Defendants correctly point out that whether Sheriff James Morgan was the final policy maker is a question of law that this Court can decide. What th[is] Court decided in its [prior order] was that the Plaintiffs had come forward with sufficient evidence to persuade this Court that Sheriff Morgan may be the final policy maker for the County. The parties will have an opportunity to convince this Court that Sheriff Morgan was or was not the final policy maker40for the County, and the Court will make a ruling as a matter of law on that issue before the case goes to the jury." Id., at 72a.Invoking the rule that an order denying qualified immunity is appealable before trial, Mitchell v. Forsyth, 472 U. S. 511, 530 (1985), the individual defendants immediately appealed. The city of Wadley and the Chambers County Commission also appealed, arguing, first, that the denial of their summary judgment motions-like the denial of the individual defendants' summary judgment motions-was immediately appealable as a collateral order satisfying the test announced in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949) (decisions that are conclusive, that resolve important questions apart from the merits of the underlying action, and that are effectively unreviewable on appeal from final judgment may be appealed immediately). Alternatively, the city and county commission urged the Eleventh Circuit Court of Appeals to exercise "pendent appellate jurisdiction," a power that court had asserted in earlier cases. Stressing the Eleventh Circuit's undisputed jurisdiction over the individual defendants' qualified immunity pleas, the city and county commission maintained that, in the interest of judicial economy, the court should resolve, simultaneously, the city's and commission's appeals.The Eleventh Circuit affirmed in part and reversed in part the District Court's order denying summary judgment for the individual defendants. 5 F.3d 1435, 1448 (1993), modified, 11 F.3d 1030, 1031-1032 (1994). Next, the Eleventh Circuit held that the District Court's rejections of the county commission's and city's summary judgment motions were not immediately appealable as collateral orders. 5 F.3d, at 1449, 1452. Nevertheless, the Circuit Court decided to exercise pendent appellate jurisdiction over the county commission's appeal. Id., at 1449-1450. Holding that Sheriff James C.41Morgan was not a policymaker for the county in the area of law enforcement, the Eleventh Circuit reversed the District Court's order denying the county commission's motion for summary judgment. Id., at 1450-1451. The Eleventh Circuit declined to exercise pendent appellate jurisdiction over the city's appeal because the District Court had not yet decided whether Wadley Police Chief Freddie Morgan was a policymaker for the city. Id., at 1451-1452.1We granted certiorari to review the Court of Appeals' decision that Sheriff Morgan is not a policymaker for Chambers County. 512 U. S. 1204 (1994). We then instructed the parties to file supplemental briefs addressing this question:Given the Eleventh Circuit's jurisdiction to review immediately the District Court's refusal to grant summary judgment for the individual defendants in response to their pleas of qualified immunity, did the Circuit Court also have jurisdiction to review at once the denial of the county commission's summary judgment motion? 513 U. S. 958 (1994). We now hold that the Eleventh Circuit should have dismissed the county commission's appeal for want of jurisdiction.IIWe inquire first whether the denial of the county commission's summary judgment motion was appealable as a collateral order. The answer, as the Court of Appeals recognized, is a firm "No."By statute, federal courts of appeals have "jurisdiction of appeals from all final decisions of the district courts," except where direct review may be had in this Court. 28 U. S. C. § 1291. "The collateral order doctrine is best understood not as an exception to the 'final decision' rule laid down by Con-IOn Sheriff James C. Morgan's suggestion for rehearing en bane, the Eleventh Circuit modified its opinion with respect to an issue not relevant here and denied rehearing en bane. 11 F.3d 1030 (1994).42gress in § 1291, but as a 'practical construction' of it." Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867 (1994) (quoting Cohen, 337 U. S., at 546). In Cohen, we held that § 1291 permits appeals not only from a final decision by which a district court disassociates itself from a case, but also from a small category of decisions that, although they do not end the litigation, must nonetheless be considered "final." Id., at 546. That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action. Ibid.The District Court planned to reconsider its ruling on the county commission's summary judgment motion before the case went to the jury. That court had initially determined only that "Sheriff Morgan ... may have been the final policy maker for the County." App. to Pet. for Cert. 67a (emphasis added). The ruling thus fails the Cohen test, which "disallowes] appeal from any decision which is tentative, informal or incomplete." 337 U. S., at 546; see Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978) (order denying class certification held not appealable under collateral order doctrine, in part because such an order is "subject to revision in the District Court").Moreover, the order denying the county commission's summary judgment motion does not satisfy Cohen's requirement that the decision be effectively unreviewable after final judgment. When we placed within the collateral order doctrine decisions denying pleas of government officials for qualified immunity, we stressed that an official's qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U. S., at 526 (emphasis in original).43The county commission invokes our decision in Monell, which held that municipalities are liable under § 1983 only for violations of federal law that occur pursuant to official governmental policy or custom. Monell, the commission contends, should be read to accord local governments a qualified right to be free from the burdens of trial. Accordingly, the commission maintains, the commission should be able to appeal immediately the District Court's denial of its summary judgment motion. This argument undervalues a core point we reiterated last Term: "§ 1291 requires courts of appeals to view claims of a 'right not to be tried' with skepticism, if not a jaundiced eye," Digital Equipment, 511 U. S., at 873, for "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial,'" ibid.; cf. United States v. MacDonald, 435 U. S. 850, 858-859 (1978) (denial of pretrial motion to dismiss an indictment on speedy trial grounds held not appealable under collateral order doctrine).The commission's assertion that Sheriff Morgan is not its policymaker does not rank, under our decisions, as an immunity from suit. Instead, the plea ranks as a "mere defense to liability." Mitchell, 472 U. S., at 526. An erroneous ruling on liability may be reviewed effectively on appeal from final judgment. Therefore, the order denying the county commission's summary judgment motion was not an appealable collateral order.IIIAlthough the Court of Appeals recognized that the District Court's order denying the county commission's summary judgment motion was not appealable as a collateral order, the Circuit Court reviewed that ruling by assuming jurisdiction pendent to its undisputed jurisdiction to review the denial of the individual defendants' summary judgment motions. Describing this "pendent appellate jurisdiction" as discretionary, the Eleventh Circuit concluded that judicial44economy warranted its exercise in the instant case: "If the County Commission is correct about the merits in its appeal," the court explained, "reviewing the district court's order would put an end to the entire case against the County .... " 5 F. 3d, at 1450.22 The Federal Courts of Appeals have endorsed the doctrine of pendent appellate jurisdiction, although they have expressed varying views about when such jurisdiction is properly exercised. See, e. g., Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105, n. 2 (CA1 1991) (noting that the First Circuit has "refrained" from exercising pendent appellate jurisdiction, but characterizing the Circuit's practice as "self-imposed"); Golino v. New Haven, 950 F.2d 864, 868-869 (CA2 1991) (exercising discretion to consider otherwise nonappealable issues because sufficient overlap exists in the factors relevant to the appealable and nonappealable issues), cert. denied, 505 U. S. 1221 (1992); Natale v. Ridgefield, 927 F.2d 101, 104 (CA2 1991) ("Only in exceptional circumstances should litigants, over whom this Court cannot ordinarily exercise jurisdiction, be permitted to ride on the jurisdictional coattails of another party."); National Union Fire Ins. Co. v. City Savings, F. S. B., 28 F.3d 376, 382, and n. 4 (CA3 1994) (reserving question whether pendent appellate jurisdiction is available in any circumstances other than when "necessary to ensure meaningful review of an appealable order") (internal quotation marks omitted); Roberson v. Mullins, 29 F.3d 132, 136 (CA4 1994) (recognizing pendent appellate jurisdiction "if the issues involved in the two rulings substantially overlap and review will advance the litigation or avoid further appeals") (internal quotation marks omitted); Silver Star Enterprises v. MN SARAMACCA, 19 F.3d 1008, 1014 (CA5 1994) (declining to exercise pendent appellate jurisdiction because otherwise nonappealable order was not "inextricably entwined" with appealable order); Williams v. Kentucky, 24 F.3d 1526, 1542 (CA6 1994) (same); United States ex rel. Valders Stone & Marble, Inc. v. C-Way Constr. Co., 909 F.2d 259, 262 (CA7 1990) (pendent appellate jurisdiction is proper only "[w]hen an ordinarily unappealable interlocutory order is inextricably entwined with an appealable order" and there are "compelling reasons" for immediate review; a "close relationship" between the two orders does not suffice) (internal quotation marks omitted); Drake v. Scott, 812 F.2d 395, 399 (CA8) ("[W]hen an interlocutory appeal is properly before us ... we have jurisdiction also to decide closely related issues of law."), cert. denied, 484 U. S. 965 (1987); TransWorld Airlines, Inc. v. American Coupon Exchange, Inc., 913 F.2d 676, 680 (CA9 1990) (jurisdiction under § 1291(a)(1) to review on an interlocutory basis a preliminary45Petitioners join respondent Chambers County Commission in urging that the Eleventh Circuit had pendent appellate jurisdiction to review the District Court's order denying the commission's summary judgment motion. Both sides emphasize that § 1291's final decision requirement is designed to prevent parties from interrupting litigation by pursuing piecemeal appeals. Once litigation has already been interrupted by an authorized pretrial appeal, petitioners and the county commission reason, there is no cause to resist the economy that pendent appellate jurisdiction promotes. See Supplemental Brief for Petitioners 16-17; Supplemental Brief for Respondent 5, 9. Respondent county commission invites us to adopt a "'libera[lJ''' construction of § 1291, and petitioners urge an interpretation sufficiently "[p]ractical" and "[f]lexible" to accommodate pendent appellate review as exercised by the Eleventh Circuit. See id., at 4; Supplemental Brief for Petitioners 14.These arguments drift away from the statutory instructions Congress has given to control the timing of appellate proceedings. The main rule on review of "final decisions," § 1291, is followed by prescriptions for appeals from "interlocutory decisions," § 1292. Section 1292(a) lists three cate-injunction order "extends to all matters 'inextricably bound up' with th[at] order"); Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1374 (CAlO 1991) (pendent appellate jurisdiction is properly exercised where "review of the appealable issue involves consideration of factors closely related or relevant to the otherwise nonappealable issue" and judicial economy is served by review), cert. denied, 502 U. S. 1091 (1992); Stewart v. Baldwin County Bd. of Ed., 908 F.2d 1499, 1509 (CA111990) ("Pendent jurisdiction is properly exercised over nonappealable decisions of the district court when the reviewing court already has jurisdiction over one issue in the case."); Consarc Corp. v. Iraqi Ministry, 27 F.3d 695, 700 (CADC 1994) ("This Circuit has invoked [pendent appellate jurisdiction] only in a narrow class of cases, to review an interlocutory order that itself is not yet subject to appeal but is 'closely related' to an appealable order.").46gories of immediately appealable interlocutory decisions.3 Of prime significance to the jurisdictional issue before us, Congress, in 1958, augmented the § 1292 catalog of immediately appealable orders; Congress added a provision, § 1292(b), according the district courts circumscribed authority to certify for immediate appeal interlocutory orders deemed pivotal and debatable. Section 1292(b) provides:"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 which would have jurisdiction of an appeal of such action 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: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."3 Section 1292(a) provides in relevant part:"[T]he courts of appeals shall have jurisdiction of appeals from:"(1) Interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;"(2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;"(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed."47Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals.4 If courts of appeals had discretion to append to a Cohen-authorized appeal from a collateral order further rulings of a kind neither independently appealable nor certified by the district court, then the two-tiered arrangement § 1292(b) mandates would be severely undermined.54 When it passed § 1292(b), Congress had before it a proposal, by Jerome Frank of the Court of Appeals for the Second Circuit, to give the courts of appeals sole discretion to allow interlocutory appeals. Judge Frank had opposed making interlocutory appeal contingent upon procurement of a certificate from the district judge; he advanced instead the following proposal:"'It shall be the duty of the district judge to state in writing whether in his opinion the appeal is warranted; this statement shall be appended to the petition for appeal or, as promptly as possible after the filing of such petition in the court of appeals, shall be forwarded to said court by the district judge. The court of appeals shall take into account, but shall not be bound by, such statement in exercising its discretion.''' Undated letter from study committee to the Tenth Circuit Judicial Conference, in5 This case indicates how the initial discretion Congress lodged in district courts under § 1292(b) could be circumvented by the "liberal" or "flexible" approach petitioners and respondent prefer. The District Court here ruled only tentatively on the county commission's motion and apparently contemplated receipt of further evidence from the parties before ruling definitively. See order denying motions to reconsider, App. to Pet. for Cert. 72a ("The parties will have an opportunity to convince this Court that Sheriff Morgan was or was not the final policy maker for the County, and the Court will make a ruling as a matter of law on that issue before the case goes to the jury."); cf. Swint v. Wadley, 5 F.3d 1435, 1452 (CAll 1993) (to determine whether an official is a final policymaker, a district court "should examine not only the relevant positive law ... but also the relevant customs and practices having the force of law") (emphasis in original). In view of the incomplete state of the District Court's adjudication, including some uncertainty whether plaintiffs meant to sue the county as discrete from the commission members, it is unlikely that a § 1292(b) certification would have been forthcoming from the District Judge.48Two relatively recent additions to the Judicial Code also counsel resistance to expansion of appellate jurisdiction in the manner endorsed by the Eleventh Circuit. The Rules Enabling Act, 28 U. S. C. § 2071 et seq., gives this Court "the power to prescribe general rules of practice and procedure ... for cases in the United States district courts ... and courts of appeals." § 2072(a). In 1990, Congress added § 2072(c), which authorizes us to prescribe rules "defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291." Two years later, Congress added § 1292(e), which allows us to "prescribe rules, in accordance with section 2072 ... to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under [§ 1292] (a), (b), (c), or (d)."Congress thus has empowered this Court to clarify when a decision qualifies as "final" for appellate review purposes, and to expand the list of orders appealable on an interlocutory basis. The procedure Congress ordered for such changes, however, is not expansion by court decision, but by rulemaking under § 2072. Our rulemaking authority is constrained by §§2073 and 2074, which require, among other things, that meetings of bench-bar committees established to recommend rules ordinarily be open to the public, § 2073(c)(1), and that any proposed rule be submitted to Congress before the rule takes effect, § 2074(a). Congress' designation of the rulemaking process as the way to define or refine when a district court ruling is "final" and when an interlocutory order is appealable warrants the Judiciary's full respect.66 In the instant case, the Eleventh Circuit asserted not merely pendent appellate jurisdiction, but pendent party appellate jurisdiction: The court appended to its jurisdiction to review the denial of the individual defendants' qualified immunity motions jurisdiction to review the denial of the commission's summary judgment motion. We note that in 1990, Congress endeavored to clarify and codify instances appropriate for the exercise of pendent or "supplemental" jurisdiction in district courts. 28 U. S. C. § 1367 (1988 ed., Supp. V); see § 1367(a) (providing for "supplemen-49Two decisions of this Court securely support the conclusion that the Eleventh Circuit lacked jurisdiction instantly to review the denial of the county commission's summary judgment motion: Abney v. United States, 431 U. S. 651 (1977), and United States v. Stanley, 483 U. S. 669 (1987). In Abney, we permitted appeal before trial of an order denying a motion to dismiss an indictment on double jeopardy grounds. Immediate appeal of that ruling, we held, fit within the Cohen collateral order doctrine. 431 U. S., at 662. But we further held that the Court of Appeals lacked authority to review simultaneously the trial court's rejection of the defendant's challenge to the sufficiency of the indictment. Id., at 662-663. We explained:"Our conclusion that a defendant may seek immediate appellate review of a district court's rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of formal jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused's motion to dismiss. Rather, such claims are appealable if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule. Any other rule would encourage criminal defendants to seek review of, or assert, frivolous double jeopardy claims in order to bring more serious, but otherwise nonappealable questions to the attention of the courts of appeals prior to conviction and sentence." Id., at 663 (citation omitted).Petitioners suggest that Abney should control in criminal cases only. Supplemental Brief for Petitioners 11. But the concern expressed in Abney-that a rule loosely allowing pendent appellate jurisdiction would encourage parties total jurisdiction" over "claims that involve the joinder or intervention of additional parties").50parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets-bears on civil cases as well.In Stanley, we similarly refused to allow expansion of the scope of an interlocutory appeal. That civil case involved an order certified by the trial court, and accepted by the appellate court, for immediate review pursuant to § 1292(b). Immediate appellate review, we held, was limited to the certified order; issues presented by other, noncertified orders could not be considered simultaneously. 483 U. S., at 676-677.The parties are correct that we have not universally required courts of appeals to confine review to the precise decision independently subject to appeal. See, e. g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 755-757 (1986) (Court of Appeals reviewing District Court's ruling on preliminary injunction request properly reviewed merits as well); Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 172-173 (1974) (Court of Appeals reviewing District Court's order allocating costs of class notification also had jurisdiction to review ruling on methods of notification); Chicago, R. 1. & P. R. Co. v. Stude, 346 U. S. 574, 578 (1954) (Court of Appeals reviewing order granting motion to dismiss properly reviewed order denying opposing party's motion to remand); Deckert v. Independence Shares Corp., 311 U. S. 282, 287 (1940) (Court of Appeals reviewing order granting preliminary injunction also had jurisdiction to review order denying motions to dismiss). Cf. Schlagenhauf v. Holder, 379 U. S. 104, 110-111 (1964) (Court of Appeals exercising mandamus power should have reviewed not only whether District Court had authority to order mental and physical examinations of defendant in personal injury case, but also whether there was good cause for the ordered examinations).We need not definitively or preemptively settle here whether or when it may be proper for a court of appeals, with jurisdiction over one ruling, to review, conjunctively,51related rulings that are not themselves independently appealable. See supra, at 48 (describing provisions by Congress for rulemaking regarding appeals prior to the district court's final disposition of entire case). The parties do not contend that the District Court's decision to deny the Chambers County Commission's summary judgment motion was inextricably intertwined with that court's decision to deny the individual defendants' qualified immunity motions, or that review of the former decision was necessary to ensure meaningful review of the latter. Cf. Kanji, The Proper Scope of Pendent Appellate Jurisdiction in the Collateral Order Context, 100 Yale L. J. 511, 530 (1990) ("Only where essential to the resolution of properly appealed collateral orders should courts extend their Cohen jurisdiction to rulings that would not otherwise qualify for expedited consideration."). Nor could the parties so argue. The individual defendants' qualified immunity turns on whether they violated clearly established federal law; the county commission's liability turns on the allocation of law enforcement power in Alabama.***The Eleventh Circuit's authority immediately to review the District Court's denial of the individual police officer defendants' summary judgment motions did not include authority to review at once the unrelated question of the county commission's liability. The District Court's preliminary ruling regarding the county did not qualify as a "collateral order," and there is no "pendent party" appellate jurisdiction of the kind the Eleventh Circuit purported to exercise. We therefore vacate the relevant portion of the Eleventh Circuit's judgment and remand the case for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1994SyllabusSWINT ET AL. v. CHAMBERS COUNTY COMMISSION ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 93-1636. Argued January 10, 1995-Decided March 1, 1995In the wake of police raids on a nightclub in Chambers County, Alabama, two of the club's owners joined by an employee and a patron (all petitioners here) sued respondent Chambers County Commission, along with a municipality and three individual police officers; petitioners sought damages and other relief under 42 U. S. C. § 1983 for alleged civil rights violations. The District Court denied the summary judgment motions of all five defendants, ruling, inter alia, that the individual officers were not entitled to qualified immunity from suit and that the sheriff who authorized the raids, although a state employee, may have been the county's final policymaker for law enforcement. The District Court stated that it would rule dispositively on the county's liability before jury deliberations. Invoking the rule that an order denying qualified immunity is appealable before trial, Mitchell v. Forsyth, 472 U. S. 511, 530, the individual defendants immediately appealed. The county commission also appealed, arguing that the denial of its summary judgment motion was immediately appealable as a collateral order satisfying the test announced in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546, and, alternatively, that the Eleventh Circuit had "pendent appellate jurisdiction" to decide the questions presented by the commission. The Eleventh Circuit rejected the county commission's first argument, but asserted pendent jurisdiction over the commission's appeal. Determining that the sheriff was not a policymaker for the county, the Eleventh Circuit held that the county commission qualified for summary judgment.Held: The Eleventh Circuit lacked jurisdiction to rule on the county commission's liability at this interlocutory stage of the litigation and, accordingly, should have dismissed the commission's appeal. Pp.41-51.(a) The order denying the county commission's summary judgment motion was not an appealable collateral order under Cohen, supra, at 546, which allows immediate appeal from decisions that are conclusive, resolve important questions separate from the merits, and are effectively unreviewable on appeal from final judgment. The order in question fails this test because it was tentative, the District Court having announced its intention to revisit its initial determination. Moreover,36Syllabusthe order is effectively reviewable after final judgment, because the commission's assertion that the sheriff is not its policymaker ranks solely as a defense to liability, not as an immunity from suit that is effectively lost if the case is erroneously permitted to go to trial. See Mitchell, supra, at 526. Pp. 41-43.(b) There is no "pendent party" appellate jurisdiction of the kind the Eleventh Circuit purported to exercise. Although that court unquestionably had jurisdiction immediately to review the denial of the individual officers' summary judgment motions, it did not thereby gain authority to review at once the unrelated question of the county commission's liability. The parties' arguments to the contrary drift away from the statutory instructions Congress has given to control the timing of appellate proceedings. In particular, 28 U. S. C. § 1292(b) confers on district courts first line discretion to certify for immediate appeal interlocutory orders deemed pivotal and debatable; this provision grants to the court of appeals discretion to review only orders first certified by the district court. If courts of appeals had jurisdiction of the type here claimed by the Eleventh Circuit, § 1292(b)'s two-tiered arrangement would be severely undermined. Furthermore, provisions Congress passed in 1990 and 1992, 28 U. S. C. § 2072(c) and 28 U. S. C. § 1292(e), designate the rulemaking process as the way to define or refine when a district court ruling is "final" and when an interlocutory order is appealable. These legislative provisions counsel resistance to expansion of appellate jurisdiction by court decision. Abney v. United States, 431 U. S. 651, 662-663, and United States v. Stanley, 483 U. S. 669, 676-677, securely support the conclusion that the Eleventh Circuit lacked jurisdiction to review the denial of the county commission's summary judgment motion. Although the parties are correct that this Court has not universally required courts of appeals to confine review to the precise decision independently subject to review, the Court need not definitively or preemptively settle here whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves independently appealable. The parties do not-indeed could not-contend that the District Court's decision to deny the commission's motion on the ground that the sheriff may have been a county policymaker was inextricably intertwined with that court's decision to deny the individual defendants' qualified immunity motions, or that review of the former decision was necessary to ensure meaningful review of the latter. Pp. 43-51.5 F.3d 1435 and 11 F.3d 1030, vacated in part and remanded.GINSBURG, J., delivered the opinion for a unanimous Court.37Full Text of Opinion

1986_86-475

JUSTICE BRENNAN delivered the opinion of the Court.The question for decision is whether a United States District Court may require that applicants for general admission Page 482 U. S. 643 to its bar either reside or maintain an office in the State where that court sits.IPetitioner David Frazier is an attorney having both his residence and his law office in Pascagoula, Mississippi. An experienced litigator, he is a member of the Mississippi and Louisiana State Bars, and also of the Bars of the United States Courts of Appeals for the Fifth and Eleventh Circuits and the United States District Court for the Southern District of Mississippi. In April, 1982, Frazier applied for admission to the Bar of the United States District Court for the Eastern District of Louisiana. His application was denied because he neither lived nor had an office in Louisiana, as required by the court's local Rule 21.2. In addition, Frazier was ineligible for admission under the court's local Rule 21.3.1, which requires continuous and uninterrupted Louisiana residence or maintenance of a Louisiana law office for continuing eligibility in that bar.Frazier challenged these District Court Rules by petitioning for a writ of prohibition from the Court of Appeals for the Fifth Circuit. The petition alleged that the restrictions in Rules 21.2 and 21.3.1 were unconstitutional, on their face and as applied to him. The Court of Appeals did not rule on the petition, but remanded the case to the District Court for the Eastern District for appropriate proceedings and entry of an appealable judgment. All the judges of the Eastern District recused themselves. The matter was assigned to Judge Edwin Hunter, a Senior Judge of the Western District of Louisiana. The District Court held a 1-day bench trial in which two District Court Judges, two Magistrates, and the Clerk of the Eastern District testified in support of the challenged Rules.Frazier challenged the District Court Rules on several constitutional grounds, primarily under the equal protection requirement of the Due Process Clause of the Fifth Amendment. [Footnote 1] Page 482 U. S. 644 Applying the standard of intermediate scrutiny, the District Court upheld Rule 21.2 as constitutional. [Footnote 2] 594 F. Supp. 1173, 1179 (1984).The District Court found that the Rule serves the important Government objective of the efficient administration of justice. Ibid. It relied on testimony by court officials that proximity to the New Orleans courthouse is important when emergencies arise during proceedings, and that participation by nonresident attorneys complicates the scheduling of routine court matters. Id. at 1183-1184. The court also found that the office requirement is not unduly restrictive, and that it increases the availability of an attorney to the court. Finally, it stated the failure to require in-state attorneys to open a local office was reasonable, since such attorneys "must of necessity open an office," and, even absent an office, an in-state attorney is likely to be available. Ibid. Without further explanation, the court declared that the in-state attorney's admission to the bar "does not raise the same concern for the efficient administration of justice that admission of nonresident attorneys does." Ibid. After reviewing petitioner's other claims, the District Court denied Frazier's petition for extraordinary relief, and dismissed his suit.The Court of Appeals affirmed over a dissent. 788 F.2d 1049 (1986). The court found that the discrimination at issue did not warrant heightened scrutiny, and held that the Page 482 U. S. 645 exclusion was rationally related to the District Court's goal of promoting lawyer competence and availability for hearings. It characterized the testimony before the District Court as"of one voice: lawyers admitted pro hac vice, who neither reside nor maintain an office in Louisiana, fail to comply with the local rules and impede the efficient administration of justice more than members of the bar of the Eastern District."Id. at 1054. The court also noted that out-of-state attorneys were not unduly disadvantaged by this restriction, since they could affiliate with Louisiana counsel and appear pro hac vice. Id. at 1054-1055. Finally, the court denied petitioner's alternative request to invalidate these Rules through use of the Court of Appeals' supervisory power over District Courts in that Circuit. The court expressed its reluctance to exercise its supervisory authority because the Fifth Circuit Judicial Council was at that time reviewing the local Rules of the District Courts in the Circuit. Id. at 1055.We granted certiorari, 479 U.S. 960 (1986), and now reverse. Pursuant to our supervisory authority, we hold that the District Court was not empowered to adopt its local Rules to require members of the Louisiana Bar who apply for admission to its bar to live in, or maintain an office in, Louisiana where that court sits. We therefore need not address the constitutional questions presented.IIWe begin our analysis by recognizing that a district court has discretion to adopt local rules that are necessary to carry out the conduct of its business. See 28 U.S.C. §§ 1654, 2071; Fed.Rule Civ.Proc. 83. This authority includes the regulation of admissions to its own bar. A district court's discretion in promulgating local rules is not, however, without limits. This Court may exercise its inherent supervisory power to ensure that these local rules are consistent with "the principles of right and justice.'" In re Ruffalo, 390 U. S. 544, 390 U. S. 554 (1968) (WHITE, J., concurring) (citation omitted); Page 482 U. S. 646 see In re Snyder, 472 U. S. 634, 472 U. S. 643 (1985); Theard v. United States, 354 U. S. 278, 354 U. S. 282 (1957); Ex parte Burr, 9 Wheat. 529, 22 U. S. 530 (1824). [Footnote 3] Section 2071 requires that local rules of a district court "shall be consistent with" the "rules of practice and procedure prescribed by the Supreme Court." [Footnote 4] Today we invoke our supervisory authority to prohibit arbitrary discrimination against members of the Louisiana Bar, residing and having their office out-of-state, who are otherwise qualified to join the Bar of the Eastern District.In the present case, our attention is focused on the requirements imposed by Rule 21.2 of the Eastern District of Louisiana, [Footnote 5] namely that, to be admitted to the bar, an attorney must reside or maintain an office in Louisiana. Respondents assert that these requirements facilitate the efficient administration of justice, because nonresident attorneys allegedly are less competent and less available to the court than resident attorneys. We disagree. We find both requirements to be unnecessary and irrational.Rule 21.2's requirement of residence in Louisiana arbitrarily discriminates against out-of-state attorneys who have passed the Louisiana bar examination and are willing to pay the necessary fees and dues in order to be admitted to the Eastern District Bar. No empirical evidence was introduced Page 482 U. S. 647 at trial to demonstrate why this class of attorneys, although members of the Louisiana Bar, should be excluded from the Eastern District's Bar. [Footnote 6] Instead, the evidence was limited almost exclusively to experiences with pro hac vice practitioners, who, unlike petitioner, were not members of the Louisiana Bar. Tr. 153. Experience with this category of one-time or occasional practitioners does not provide a basis for predicting the behavior of attorneys who are members of the Louisiana Bar and who seek to practice in the Eastern District on a regular basis.Indeed, there is no reason to believe that nonresident attorneys who have passed the Louisiana bar examination are less competent than resident attorneys. The competence of the former group in local and federal law has been tested and demonstrated to the same extent as that of Louisiana lawyers, and its members are equally qualified. We are unwilling to assume that"a nonresident lawyer -- any more than a resident -- would disserve his clients by failing to familiarize himself [or herself] with the [local] rules."Supreme Court of New Hampshire v. Piper, 470 U. S. 274, 470 U. S. 285 (1985). [Footnote 7] The Page 482 U. S. 648 Court has previously recognized that a nonresident lawyer is likely to have a substantial incentive, as a practical matter, to learn and keep abreast of local rules. Ibid. A lawyer's application to a particular bar is likely to be based on the expectation of considerable local practice, since it requires the personal investment of taking the state bar examination and paying fees and annual dues. Moreover, other more effective means of ensuring the competence of bar members are available to the district courts, including examination or seminar attendance requirements. Complete exclusion is unnecessary.We also do not believe that an alleged need for immediate availability of attorneys in some proceedings requires a blanket rule that denies all nonresident attorneys admission to a district court bar. If attorney availability is a significant problem, the Rules are poorly crafted to remedy it. For example, the Rules presume that a lawyer in Shreveport, Louisiana, which is located more than 300 miles from the New Orleans courthouse of the Eastern District, is more likely or able to attend a conference than a lawyer such as petitioner, who is only 110 miles away, but must cross a state boundary on his way to the court. As a practical matter, a high percentage Page 482 U. S. 649 of nonresident attorneys willing to take the state bar examination and pay the annual dues will reside in places "reasonably convenient" to the District Court. Cf. 470 U.S. at 470 U. S. 286-287. Moreover, modern communication systems, including conference telephone arrangements, make it possible to minimize the problem of unavailability. Finally, district courts have alternative means to ensure prompt attendance at important conferences. For instance, they may impose sanctions on lawyers who fail to appear on schedule. Indeed, the Eastern District has adopted Rule 21.8.1, which specifically requires that sanctions be imposed on lawyers who fail to appear at hearings. [Footnote 8] We therefore conclude that the residency requirement imposed by the Eastern District is unnecessary, and arbitrarily discriminates against out-of-state attorneys.Similarly, we find the in-state office requirement unnecessary and irrational. First, the requirement is not imposed on in-state attorneys. A resident lawyer is allowed to maintain his or her only office outside of Louisiana. A resident lawyer with an out-of-state office is equally as unavailable to the court as a nonresident lawyer with an out-of-state office. In addition, the mere fact that an attorney has an office in Louisiana surely does not warrant the assumption that he or she is more competent than an out-of-state member of the state bar. Requiring petitioner to have a Louisiana address and telephone number, and an in-state answering service will not elevate his or her understanding of the local Rules. As the failure to require in-state attorneys to have an in-state office reveals, the location of a lawyer's office simply has nothing to do with his or her intellectual ability or experience in litigating cases in Federal District Court. Page 482 U. S. 650We further conclude that any need the court may have to ensure the availability of attorneys does not justify the in-state office requirement. As observed with regard to state residency requirements, there is no link between residency within a State and proximity to a courthouse. The office requirement does not specify that counsel be in the Eastern District, but only that the attorney have an office somewhere in the State, regardless of how far that office is from the courthouse. [Footnote 9] Thus, we conclude that neither the residency requirement nor the office requirement of the local Rules is justified. [Footnote 10]Respondents contend that nonresident lawyers are not totally foreclosed from Eastern District practice, because they can appear pro hac vice. In Piper, however, we recognized that this alternative does not allow the nonresident attorney to practice "on the same terms as a resident member of the bar." 470 U.S. at 470 U. S. 277, n. 2. An attorney not licensed by a district court must repeatedly file motions for each appearance on a pro hac vice basis. 594 F. Supp. at 1177. In addition, in order to appear pro hac vice under local Rule 21.5, a lawyer must also associate with a member of the Eastern District Bar, who is required to sign all court documents. [Footnote 11] 594 F. Supp. at 1177. This association, of course, imposes a financial and administrative burden on nonresident counsel. [Footnote 12] Page 482 U. S. 651 Furthermore, it is ironic that "local" counsel may be located much farther away from the New Orleans courthouse than the out-of-state counsel. Thus, the availability of appearance pro hac vice is not a reasonable alternative for an out-of-state attorney who seeks general admission to the Eastern District's Bar. [Footnote 13]Reversed

U.S. Supreme CourtFrazier v. Heebe, 482 U.S. 641 (1987)Frazier v. HeebeNo. 86-475Argued April 29, 1987Decided June 19, 1987482 U.S. 641SyllabusPetitioner, an attorney who maintained both his residence and his law office in Mississippi and who was a member of the Mississippi and Louisiana State Bars, was denied admission to the Bar of the United States District Court for the Eastern District of Louisiana because he neither lived nor had an office in Louisiana, as required by the court's local Rule 21.2. He was also ineligible under the court's Rule 21.3.1, which requires continuous and uninterrupted Louisiana residence or maintenance of a Louisiana law office for continuing eligibility in the bar. He sought a writ of prohibition from the Court of Appeals, alleging that the restrictions in the Rules were unconstitutional on their face and as applied to him. The court remanded the case to the District Court for appropriate proceedings and entry of an appealable judgment. That court upheld Rule 21.2 as constitutional. The Court of Appeals affirmed.Held: The District Court was not empowered to adopt Rules requiring members of the Louisiana Bar who apply for admission to its bar to live, or maintain an office, in Louisiana. Pp. 482 U. S. 645-651.(a) A district court has discretion to adopt local rules that are necessary to carry out its business, including rules governing admission to its bar. However, this Court may exercise its inherent supervisory power (as it does here) to ensure that local rules are consistent with principles of right and justice. Pp. 482 U. S. 645-646.(b) Rule 21.2's residence requirement is unnecessary, and arbitrarily discriminates against out-of-state attorneys who are members of the Louisiana Bar and are willing to pay the necessary fees and dues in order to be admitted to the Eastern District Bar. There is no reason to believe that such attorneys are less competent than resident attorneys. Moreover, other more effective means of ensuring the competence of bar members are available to the district courts, including examination or seminar attendance requirements. Nor does an alleged need for immediate availability of attorneys require a blanket rule that denies all nonresident attorneys admission to a district court bar. As a practical matter, a high percentage of nonresident attorneys willing to take the state bar examination and pay the annual dues will reside in places reasonably Page 482 U. S. 642 convenient to the district court. Moreover, modern communication systems make it possible to minimize the problem of unavailability, and district courts also have alternative means to ensure prompt attendance at important conferences. Pp. 482 U. S. 646-649.(c) The in-state office requirement is similarly unnecessary and irrational. It is not imposed on a lawyer residing in Louisiana whose only office is out-of-state and who is equally as unavailable to the court as a nonresident lawyer with an out-of-state office. Nor does the mere fact that an attorney has an office in Louisiana warrant the assumption that he or she is more competent than an out-of-state member of the state bar. Moreover, any need the court may have to ensure the availability of attorneys does not justify the in-state office requirement. There is no link between residency within a State and proximity to a courthouse. P. 482 U. S. 650.(d) The contention that nonresident lawyers are not totally foreclosed from Eastern District practice because they can appear pro hac vice is unpersuasive. Such alternative does not allow the nonresident attorney to practice on the same terms as a resident member of the bar. In order to appear pro hac vice under the District Court's Rules, a lawyer must associate with a member of the court's bar. Such association imposes a financial and administrative burden on nonresident counsel. Furthermore, "local" counsel may be located much farther from the courthouse than the out-of-state counsel. Pp. 482 U. S. 650-651.788 F.2d 1049, reversed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 482 U. S. 651.

1973_73-5265

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case, 414 U.S. 1091 (1973), to resolve the conflict among the Courts of Appeals Page 417 U. S. 643 on the questions of whether an income tax refund is "property" under § 70a(5) of the Bankruptcy Act [Footnote 1] and whether, assuming that all or part of such tax refund is property which passes to the trustee, the Consumer Credit Protection Act's [Footnote 2] limitation on wage garnishment serves to exempt 75% of the refund from the jurisdiction of the trustee. [Footnote 3] Page 417 U. S. 644The petitioner was employed for the first three months of 1971. He was then unemployed from April, 1971, until late in December of that year. He as reemployed for about the last week and a half of December, 1971. While employed, petitioner claimed two exemptions for federal income tax purposes, the maximum number of deductions to which he was entitled, and his employer withheld the appropriate portion of his wages. 26 U.S.C. § 3402. During the year 1971, petitioner had a gross income of $2,322.On January 5, 1972, petitioner filed a voluntary petition in bankruptcy. With the exception of a 1962 Corvair automobile which the trustee abandoned as an asset upon the bankrupt's payment of $25, the sole asset claimed by the trustee in bankruptcy was an income tax refund entitlement for $250.90. On February 3, 1972, the referee in bankruptcy entered an ex parte order directing petitioner to turn the refund over to the trustee upon its receipt. The bankrupt moved to vacate that order and, after a hearing, the referee denied the motion. In mid-February, 1972, petitioner filed his income tax return for the calendar year 1971. Several weeks later, he received his refund check from the Internal Revenue Service. Upon its receipt, petitioner complied with the order of the trustee but filed a petition for review of the referee's decision in the United States District Court. [Footnote 4] The District Court denied relief. Petitioner was granted Page 417 U. S. 645 leave to appeal. [Footnote 5] On May 18, 1973, the United States Court of Appeals for the Second Circuit affirmed the order of the District Court, holding that the tax refund was property within the meaning of § 70a(5) of the Bankruptcy Act and that it therefore vested in the trustee. 479 F.2d 990. The court further held that the limitations on garnishment contained in the Consumer Credit Protection Act did not apply to bankruptcy situations and that, consequently, the trustee was entitled to the entire refund. Petitioner seeks review of these questions here.(1)We turn first to the question of whether petitioner's income tax refund was "property" within the meaning of § 70a(5) of the Bankruptcy Act. The term has never been given a precise or universal definition. On an earlier occasion, in Segal v. Rochelle, 382 U. S. 375 (1966), the Court noted that""[i]t is impossible to give any categorical definition to the word property,' nor can we attach to it in certain relations the limitations which would be attached to it in others."" Id. at 382 U. S. 379, quoting Fisher v. Cushman, 103 F. 860, 864 (CA1 1900). In determining the term's scope -- and its limitations -- the purposes of the Bankruptcy Act "must ultimately govern." 382 U.S. at 382 U. S. 379. See also Lines v. Frederick, 400 U. S. 18 (1970); Local Loan Co. v. Hunt, 292 U. S. 234 (1934).In applying these general considerations to the present situation, there are some guidelines. In Burlingham v. Crouse, 228 U. S. 459 (1913), for example, the Court stated:"It is the twofold purpose of the Bankruptcy Act to convert the estate of the bankrupt into cash and distribute it among creditors and then to give Page 417 U. S. 646 the bankrupt a fresh start with such exemptions and rights as the statute left untouched."Id. at 228 U. S. 473. See also Wetmore v. Markoe, 196 U. S. 68, 196 U. S. 77 (1904); Williams v. U.S. Fidelity Co., 236 U. S. 549, 236 U. S. 554-555 (1915); Stellwagen v. Clum, 245 U. S. 605, 245 U. S. 617 (1918). On two rather recent occasions, the Court has applied these general principles to the precise statutory section and to the precise term at issue here. In Segal v. Rochelle, supra, the Court said:"The main thrust of § 70a(5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition. To this end, the term 'property' has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed."382 U.S. at 382 U. S. 379. At the same time, the Court noted that this construction must be tempered by the intent of Congress "to leave the bankrupt free after the date of his petition to accumulate new wealth in the future," ibid., and thus "make an unencumbered fresh start," id. at 382 U. S. 380. Several years later, in Lines v. Frederick, supra, these same considerations were repeated in almost identical language. 400 U.S. at 400 U. S. 19. Segal and Lines, while construing § 70a(5) in almost identical language, reached contrary results. In each case, the Court found the crucial analytical key, not in an abstract articulation of the statute's purpose, but in an analysis of the nature of the asset involved in light of those principles.In Segal, supra, this Court held that a business-generated loss carryback tax refund -- which was based on pre-bankruptcy losses but received after bankruptcy -- Page 417 U. S. 647 should pass to the trustee as § 70a(5) property. Balancing the dual purpose of the Bankruptcy Act, see Burlingham v. Crouse, supra, the Court concluded that the refund was"sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupt's ability to make an unencumbered fresh start that it should be regarded as 'property' under § 70a(5),"382 U.S. at 382 U. S. 380. The Court noted that "the very losses generating the refunds often help precipitate the bankruptcy and injury to the creditors," id. at 382 U. S. 378, and that passing the claim to the trustee did not impede a "fresh start." On the contrary, a bankrupt "without a refund claim to preserve has more reason to earn income, rather than less." Id. at 382 U. S. 380.In Lines, supra, on the other hand, the Court held that vacation pay, accrued prior to the date of filing and collectible either during the plant's annual shutdown for vacation or on the final termination of employment, does not pass to the trustee as § 70a(5) property. As in Segal, supra, the Court analyzed the nature of the asset in the light of the dual purposes of the Bankruptcy Act. It concluded that such vacation pay was closely tied to the bankrupt's opportunity to have a "clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.'" 400 U.S. at 400 U. S. 20, quoting Local Loan Co. v. Hunt, supra, at 244.The income tax refund at issue in the present case does not relate conceptually to future wages and it is not the equivalent of future wages for the purpose of giving the bankrupt a "fresh start." The tax payments refunded here were income tax payments withheld from the petitioner prior to his filing for bankruptcy and are based on earnings prior to that filing. Relying on Lines, however, petitioner contends that the refund is necessary for a "fresh start" since it is solely derived from wages. Page 417 U. S. 648 In Lines, we described wages as "a specialized type of property presenting distinct problems in our economic system,'" [Footnote 6] since they provide the basic means for the "economic survival of the debtor." 400 U.S. at 400 U. S. 20.Petitioner is correct in arguing that both this tax refund and the vacation pay in Lines share the common characteristic of being "wage based." It is also true, however, that only the vacation pay in Lines was designed to function as a wage substitute at some future period and, during that future period, to "support the basic requirements of life for [the debtors] and their families. . . ." Ibid. This distinction is crucial. As the Court of Appeals noted, since a"tax refund is not the weekly or other periodic income required by a wage earner for his basic support, to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt,"479 F.2d at 995."Just because some property interest had its source in wages . . . does not give it special protection, for to do so would exempt from the bankrupt estate most of the property owned by many bankrupts, such as savings accounts and automobiles which had their origin in wages."Ibid.We conclude, therefore, that the Court of Appeals correctly held that the income tax refund is "sufficiently rooted in the pre-bankruptcy past" [Footnote 7] to be defined as "property" under § 70a(5).(2)Our disposition of the first issue requires that we turn next to the petitioner's contention that 75% of the refund is exempt under the provisions of the Consumer Page 417 U. S. 649 Credit Protection Act. The Act provides that no more than 25% of a person's aggregate disposable earnings [Footnote 8] for any workweek or other pay period may be subject to garnishment. A trustee in bankruptcy takes title to the bankrupt's property "except insofar as it is to property which is held to be exempt. . . ." Bankruptcy Act, § 70a, 11 U.S.C. § 110(a). Another section provides that the Act "shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States. . . ." Bankruptcy Act § 6, 11 U.S.C. § 24. Petitioner argues that the Consumer Credit Protection Act's restrictions on garnishment, 15 U.S.C. § 1671 et seq., are such an exemption. In essence, the petitioner's position is that a tax refund, having its source in wages and being completely available to the taxpayer upon its return without any further deduction, is "disposable earnings" within the meaning of the statute. 15 U.S.C. § 1672(b). He further argues that the taking of custody by the trustee is a "garnishment," since a bankruptcy proceeding is a "legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt." § 1672(c). Page 417 U. S. 650The Congress did not enact the Consumer Credit Protection Act in a vacuum. The drafters of the statute were well aware that the provisions and the purposes of the Bankruptcy Act and the new legislation would have to coexist. Indeed, the Consumer Credit Protection Act explicitly rests on both the bankruptcy and commerce powers of the Congress. 15 U.S.C. § 1671(b). We must therefore take into consideration the language and purpose of both the Bankruptcy Act and the Consumer Credit Protection Act in assessing the validity of the petitioner's argument. When"interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature. . . ."Brown v. Duchesne, 19 How. 183, 60 U. S. 194 (1857). An examination of the legislative history of the Consumer Protection Act makes it clear that, while it was enacted against the background of the Bankruptcy Act, it was not intended to alter the clear purpose of the latter Act to assemble, once a bankruptcy petition is filed, all of the debtor's assets for the benefit of his creditors. See, e.g., Segal v. Rochelle, 382 U. S. 375 (1966). Indeed, Congress' concern was not the administration of a bankrupt's estate but the prevention of bankruptcy in the first place by eliminating "an essential element in the predatory extension of credit resulting in a disruption of employment, production, as well as consumption," [Footnote 9] and a consequent increase in personal bankruptcies. Noting that the evidence before the Committee "clearly established a causal connection between harsh Page 417 U. S. 651 garnishment laws and high levels of personal bankruptcies," [Footnote 10] the House Report concluded:"The limitations on the garnishment of wages adopted by your committee, while permitting the continued orderly payment of consumer debts, will relieve countless honest debtors driven by economic desperation from plunging into bankruptcy in order to preserve their employment and insure a continued means of support for themselves and their families."H.R.Rep. No. 1040, 90th Cong., 1st Sess., 21 (1967). See also id. at 7. In short, the Consumer Credit Protection Act sought to prevent consumers from entering bankruptcy in the first place. However, if, despite its protection, bankruptcy did occur, the debtor's protection and remedy remained under the Bankruptcy Act.The Court of Appeals held that the terms "earnings" and "disposable earnings," as used in 15 U.S.C. § 1672, 1673, did not include a tax refund, but were limited to "periodic payments of compensation, and [do] not pertain to every asset that is traceable in some way to such compensation." 479 F.2d at 997. This view is fully supported by the legislative history. There is every indication that Congress, in an effort to avoid the necessity of bankruptcy, sought to regulate garnishment in its usual sense as a levy on periodic payments of compensation needed to support the wage earner and his family on a week-to-week, month-to-month basis. There is no indication, however, that Congress intended drastically to alter the delicate balance of a debtor's protections and obligations during the bankruptcy procedure. [Footnote 11] We Page 417 U. S. 652 therefore agree with the Court of Appeals that the Consumer Credit Protection Act does not restrict the right of the trustee to treat the income tax refund as property of the bankrupt's estate. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtKokoszka v. Belford, 417 U.S. 642 (1974)Kokoszka v. BelfordNo. 73-5265Argued April 22, 1974Decided June 19, 1974417 U.S. 642Syllabus1. An income tax refund is "property" that passes to the trustee under § 70a(5) of the Bankruptcy Act, being "sufficiently rooted in the bankruptcy past," and not being related conceptually to or the equivalent of future wages for the purpose of giving the bankrupt wage earner a "fresh start." Lines v. Frederick, 400 U. S. 18, distinguished. Pp. 417 U. S. 645-648.2. The provision in the Consumer Credit Protection Act limiting wage garnishment to no more than 25% of a person's aggregate "disposable earnings" for any pay period does not apply to a tax refund, since the statutory terms "earnings" and "disposable earnings" are confined to periodic payments of compensation and do not pertain to every asset that is traceable in some way to such compensation. Hence, the Act does not limit the bankruptcy trustee's right to treat the tax refund as property of the bankrupt's estate. Pp. 417 U. S. 648-652.479 F.2d 990, affirmed.BURGER, C.J., delivered the opinion for a unanimous Court.

1989_88-1319

Justice BLACKMUN delivered the opinion of the Court.Respondent Indianapolis Power & Light Company (IPL) requires certain customers to make deposits with it to assure payment of future bills for electric service. Petitioner Commissioner of Internal Revenue contends that these deposits are advance payments for electricity, and therefore constitute taxable income to IPL upon receipt. IPL contends otherwise.IIPL is a regulated Indiana corporation that generates and sells electricity in Indianapolis and its environs. It keeps its books on the accrual and calendar year basis. During the years 1974 through 1977, approximately 5% of IPL's residential and commercial customers were required to make deposits "to insure prompt payment," as the customers' receipts stated, of future utility bills. These customers were selected because their credit was suspect. Prior to March 10, 1976, the deposit requirement was imposed on a case-by-case basis. IPL relied on a credit test but employed no fixed formula. The amount of the required deposit ordinarily was twice the customer's estimated monthly bill. IPL paid 3% interest on a deposit held for six months or more. A customer could obtain a refund of the deposit prior to termination of service by requesting a review and demonstrating acceptable credit. The refund usually was made in cash or by check, but the customer Page 493 U. S. 205 could choose to have the amount applied against future bills.In March, 1976, IPL amended its rules governing the deposit program. See Title 170, Ind.Admin.Code 4-1-15 (1988). Under the amended rules, the residential customers from whom deposits were required were selected on the basis of a fixed formula. The interest rate was raised to 6%, but was payable only on deposits held for 12 months or more. A deposit was refunded when the customer made timely payments for either nine consecutive months or for 10 out of 12 consecutive months, so long as the two delinquent months were not themselves consecutive. A customer could obtain a refund prior to that time by satisfying the credit test. As under the previous rules, the refund would be made in cash or by check, or, at the customer's option, applied against future bills. Any deposit unclaimed after seven years was to escheat to the State. See Ind.Code § 32-9-1-6(a) (1988). [Footnote 1]IPL did not treat these deposits as income at the time of receipt. Rather, as required by state administrative regulations, the deposits were carried on its books as current liabilities. Under its accounting system, IPL recognized income when it mailed a monthly bill. If the deposit was used to offset a customer's bill, the utility made the necessary accounting adjustments. Customer deposits were not physically segregated in any way from the company's general funds. They were commingled with other receipts and at all times were subject to IPL's unfettered use and control. It is undisputed that IPL's treatment of the deposits was consistent with accepted accounting practice and applicable state regulations.Upon audit of respondent's returns for the calendar years 1974 through 1977, the Commissioner asserted deficiencies. Although other items initially were in dispute, the parties were able to reach agreement on every issue except that of Page 493 U. S. 206 the proper treatment of customer deposits for the years 1975, 1976, and 1977. The Commissioner took the position that the deposits were advance payments for electricity, and therefore were taxable to IPL in the year of receipt. He contended that the increase or decrease in customer deposits outstanding at the end of each year represented an increase or decrease in IPL's income for the year. [Footnote 2] IPL disagreed and filed a petition in the United States Tax Court for redetermination of the asserted deficiencies.In a reviewed decision, with one judge not participating, a unanimous Tax Court ruled in favor of IPL. 88 T.C. 964 (1987). The court followed the approach it had adopted in City Gas Co. of Florida v. Commissioner of Internal Revenue, 74 T.C. 386 (1980), rev'd, 689 F.2d 943 (CA 11 1982). It found it necessary to "continue to examine all of the circumstances," 88 T.C., at 976, and relied on several factors in concluding that the deposits in question were properly excluded from gross income. It noted, among other things, that only 5% of IPL's customers were required to make deposits; that the customer, rather than the utility, controlled the ultimate disposition of a deposit; and that IPL consistently treated the deposits as belonging to the customers, both by listing them as current liabilities for accounting purposes and by paying interest. Id. at 976-978.The United States Court of Appeals for the Seventh Circuit affirmed the Tax Court's decision. 857 F.2d 1162 (1988). The court stated that"the proper approach to determining the appropriate tax treatment of a customer deposit is to look at the primary purpose of the deposit based on all the Page 493 U. S. 207 facts and circumstances. . . ."Id. at 1167. The court appeared to place primary reliance, however, on IPL's obligation to pay interest on the deposits. It asserted that"as the interest rate paid on a deposit to secure income begins to approximate the return that the recipient would be expected to make from 'the use' of the deposit amount, the deposit begins to serve purposes that comport more squarely with a security deposit."Id. at 1169. Noting that IPL had paid interest on the customer deposits throughout the period in question, the court upheld, as not clearly erroneous, the Tax Court's determination that the principal purpose of these deposits was to serve as security, rather than as prepayment of income. Id. at 1170.Because the Seventh Circuit was in specific disagreement with the Eleventh Circuit's ruling in City Gas Co. of Florida, supra, we granted certiorari to resolve the conflict. 490 U.S. 1033 (1989).IIWe begin with the common ground. IPL acknowledges that these customer deposits are taxable as income upon receipt if they constitute advance payments for electricity to be supplied. [Footnote 3] The Commissioner, on his part, concedes that customer deposits.that secure the performance of non-income-producing covenants -- such as a utility customer's obligation to ensure that meters will not be damaged -- are not taxable income. And it is settled that receipt of a loan is not income to the borrower. See Commissioner v. Tufts, 461 U. S. 300, 461 U. S. 307 (1983) ("Because of [the repayment] obligation, Page 493 U. S. 208 the loan proceeds do not qualify as income to the taxpayer"); James v. United States, 366 U. S. 213, 366 U. S. 219 (1961) (accepted definition of gross income "excludes loans"); Commissioner v. Wilcox, 327 U. S. 404, 327 U. S. 408 (1946). IPL, stressing its obligation to refund the deposits with interest, asserts that the payments are similar to loans. The Commissioner, however, contends that a deposit which serves to secure the payment of future income is properly analogized to an advance payment for goods or services. See Rev.Rul. 72-519, 1972-2 Cum.Bull. 32, 33 ("[W]hen the purpose of the deposit is to guarantee the customer's payment of amounts owed to the creditor, such a deposit is treated as an advance payment, but when the purpose of the deposit is to secure a property interest of the taxpayer the deposit is regarded as a true security deposit").In economic terms, to be sure, the distinction between a loan and an advance payment is one of degree rather than of kind. A commercial loan, like an advance payment, confers an economic benefit on the recipient: a business presumably does not borrow money unless it believes that the income it can earn from its use of the borrowed funds will be greater than its interest obligation. See Illinois Power Co. v. Commissioner of Internal Revenue, 792 F.2d 683, 690 (CA7 1986). Even though receipt of the money is subject to a duty to repay, the borrower must regard itself as better off after the loan than it was before. The economic benefit of a loan, however, consists entirely of the opportunity to earn income on the use of the money prior to the time the loan must be repaid. And in that context, our system is content to tax these earnings as they are realized. The recipient of an advance payment, in contrast, gains both immediate use of the money (with the chance to realize earnings thereon) and the opportunity to make a profit by providing goods or services at a cost lower than the amount of the payment.The question, therefore, cannot be resolved simply by noting that respondent derives some economic benefit from receipt Page 493 U. S. 209 of these deposits. [Footnote 4] Rather, the issue turns upon the nature of the rights and obligations that IPL assumed when the deposits were made. In determining what sort of economic benefits qualify as income, this Court has invoked various formulations. It has referred, for example, to "undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 348 U. S. 431 (1955). It also has stated:"When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, 'he has received income. . . .'"James v. United States, 366 U.S. at 366 U. S. 219, quoting North American Oil Consolidated v. Burnet, 286 U. S. 417, 286 U. S. 424 (1932). IPL hardly enjoyed "complete dominion" over the customer deposits entrusted to it. Rather, these deposits were acquired subject to an express "obligation to repay," either at the time service was terminated or at the time a customer established good credit. So long as the customer fulfills his legal obligation to make timely payments, his deposit ultimately is to be refunded, and both the timing and method of that refund are largely within the control of the customer.The Commissioner stresses the fact that these deposits were not placed in escrow or segregated from IPL's other funds, and that IPL therefore enjoyed unrestricted use of the money. That circumstance, however, cannot be dispositive. After all, the same might be said of a commercial loan; yet the Commissioner does not suggest that a loan is taxable upon receipt simply because the borrower is free to use the Page 493 U. S. 210 funds in whatever fashion he chooses until the time of repayment. In determining whether a taxpayer enjoys "complete dominion" over a given sum, the crucial point is not whether his use of the funds is unconstrained during some interim period. The key is whether the taxpayer has some guarantee that he will be allowed to keep the money. IPL's receipt of these deposits was accompanied by no such guarantee.Nor is it especially significant that these deposits could be expected to generate income greater than the modest interest IPL was required to pay. Again, the same could be said of a commercial loan, since, as has been noted, a business is unlikely to borrow unless it believes that it can realize benefits that exceed the cost of servicing the debt. A bank could hardly operate profitably if its earnings on deposits did not surpass its interest obligations; but the deposits themselves are not treated as income. [Footnote 5] Any income that the utility may earn through use of the deposit money of course is taxable, but the prospect that income will be generated provides no ground for taxing the principal.The Commissioner's advance payment analogy seems to us to rest upon a misconception of the value of an advance payment to its recipient. An advance payment, like the deposits at issue here, concededly protects the seller against the risk that it would be unable to collect money owed it after it has furnished goods or services. But an advance payment does much more: it protects against the risk that the purchaser will back out of the deal before the seller performs. From the moment an advance payment is made, the seller is assured that, so long as it fulfills its contractual obligation, the money is its to keep. Here, in contrast, a customer submitting a deposit made no commitment to purchase a specified quantity of electricity, or indeed to purchase any electricity Page 493 U. S. 211 at all. [Footnote 6] IPL's right to keep the money depends upon the customer's purchase of electricity, and upon his later decision to have the deposit applied to future bills, not merely upon the utility's adherence to its contractual duties. Under these circumstances, IPL's dominion over the fund is far less complete than is ordinarily the case in an advance-payment situation.The Commissioner emphasizes that these deposits frequently will be used to pay for electricity, either because the customer defaults on his obligation or because the customer, having established credit, chooses to apply the deposit to future bills rather than to accept a refund. When this occurs, the Commissioner argues, the transaction, from a cash-flow standpoint, is equivalent to an advance payment. In his view this economic equivalence mandates identical tax treatment. [Footnote 7]Whether these payments constitute income when received, however, depends upon the parties' rights and obligations at the time the payments are made. The problem with petitioner's argument perhaps can best be understood if we imagine a loan between parties involved in an ongoing commercial Page 493 U. S. 212 relationship. At the time the loan falls due, the lender may decide to apply the money owed him to the purchase of goods or services, rather than to accept repayment in cash. But this decision does not mean that the loan, when made, was an advance payment after all. The lender in effect has taken repayment of his money (as was his contractual right) and has chosen to use the proceeds for the purchase of goods or services from the borrower. Although, for the sake of convenience, the parties may combine the two steps, that decision does not blind us to the fact that in substance two transactions are involved. [Footnote 8]It is this element of choice that distinguishes an advance payment from a loan. Whether these customer deposits are the economic equivalents of advance payments, and therefore taxable upon receipt, must be determined by examining the relationship between the parties at the time of the deposit. The individual who makes an advance payment retains no right to insist upon the return of the funds; so long as the recipient fulfills the terms of the bargain, the money is its to keep. The customer who submits a deposit to the utility, like the lender in the previous hypothetical, retains the right to insist upon repayment in cash; he may choose to apply the money to the purchase of electricity, but he assumes no obligation to do so, and the utility therefore acquires no unfettered "dominion" over the money at the time of receipt.When the Commissioner examines privately structured transactions, the true understanding of the parties, of course, may not be apparent. It may be that a transfer of funds, though nominally a loan, may conceal an unstated agreement that the money is to be applied to the purchase of goods or Page 493 U. S. 213 services. We need not, and do not, attempt to devise a test for addressing those situations where the nature of the parties' bargain is legitimately in dispute. This particular respondent, however, conducts its business in a heavily regulated environment; its rights and obligations vis-a-vis its customers are largely determined by law and regulation, rather than by private negotiation. That the utility's customers, when they qualify for refunds of deposits, frequently choose to apply those refunds to future bills rather than taking repayment in cash does not mean that any customer has made an unspoken commitment to do so.Our decision is also consistent with the Tax Court's long-standing treatment of lease deposits -- perhaps the closest analogy to the present situation. The Tax Court traditionally has distinguished between a sum designated as a prepayment of rent -- which is taxable upon receipt -- and a sum deposited to secure the tenant's performance of a lease agreement. See, e.g., J. & E. Enterprises, Inc. v. Commissioner, 26 TCM 944 (1967). [Footnote 9] In fact, the customer deposits Page 493 U. S. 214 at issue here are less plausibly regarded as income than lease deposits would be. The typical lease deposit secures the tenant's fulfillment of a contractual obligation to pay a specified rent throughout the term of the lease. The utility customer, however, makes no commitment to purchase any services at all at the time he tenders the deposit.We recognize that IPL derives an economic benefit from these deposits. But a taxpayer does not realize taxable income from every event that improves his economic condition. A customer who makes this deposit reflects no commitment to purchase services, and IPL's right to retain the money is contingent upon events outside its control. We hold that such dominion as IPL has over these customer deposits is insufficient for the deposits to qualify as taxable income at the time they are made.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtCIR v. Indianapolis P & L, 493 U.S. 203 (1990)Commissioner of Internal Revenue v.Indianapolis Power & Light CompanyNo. 88-1319Argued Oct. 31, 1989Decided Jan. 9, 1990493 U.S. 203SyllabusRespondent Indianapolis Power and Light Co. (IPL), a regulated Indiana utility and an accrual-basis taxpayer, requires customers having suspect credit to make deposits with it to assure prompt payment of future electric bills. Prior to termination of service, customers who satisfy a credit test can obtain a refund of their deposits or can choose to have the amount applied against future bills. Although the deposits are at all times subject to the company's unfettered use and control, IPL does not treat them as income at the time of receipt, but carries them on its books as current liabilities. Upon audit of IPL's returns for the tax years at issue, petitioner Commissioner of Internal Revenue asserted deficiencies, claiming that the deposits are advance payments for electricity and therefore are taxable to IPL in the year of receipt. The Tax Court ruled in favor of IPL on its petition for redetermination, holding that the deposits' principal purpose is to serve as security rather than as prepayment of income. The Court of Appeals affirmed.Held: The customer deposits are not advance payments for electricity, and therefore do not constitute taxable income to IPL upon receipt. Although IPL derives some economic benefit from the deposits, it does not have the requisite "complete dominion" over them at the time they are made, the crucial point for determining taxable income. IPL has an obligation to repay the deposits upon termination of service or satisfaction of the credit test. Moreover, a customer submitting a deposit makes no commitment to purchase any electricity at all. Thus, while deposits eventually may be used to pay for electricity by virtue of customer default or choice, IPL's right to retain them at the time they are made is contingent upon events outside its control. This construction is consistent with the Tax Court's longstanding treatment of sums deposited to secure a tenant's performance of a lease agreement, perhaps the closest analogy to the present situation. Pp. 493 U. S. 207-214.857 F.2d 1162 (C.A.7 1988), affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 493 U. S. 204

1974_74-8

MR. JUSTICE STEWART delivered the opinion of the Court.The respondent, Kenneth Donaldson, was civilly committed to confinement as a mental patient in the Florida State Hospital at Chattahoochee in January, 1957. He was kept in custody there against his will for nearly 15 years. The petitioner, Dr. J. B. O'Connor, was the hospital's superintendent during most of this period. Page 422 U. S. 565 Throughout his confinement, Donaldson repeatedly, but unsuccessfully, demanded his release, claiming that he was dangerous to no one, that he was not mentally ill, and that, at any rate, the hospital was not providing treatment for his supposed illness. Finally, in February, 1971, Donaldson brought this lawsuit under 42 U.S.C. § 1983, in the United States District Court for the Northern District of Florida, alleging that O'Connor, and other members of the hospital staff named as defendants, had intentionally and maliciously deprived him of his constitutional right to liberty. [Footnote 1] After a four-day trial, the jury returned a verdict assessing both compensatory and punitive damages against O'Connor and a codefendant. The Court of Appeals for the Fifth Circuit affirmed the judgment, 493 F.2d 507. We granted O'Connor's petition for certiorari, 419 U.S. 894, because of the important constitutional questions seemingly presented.IDonaldson's commitment was initiated by his father, who thought that his son was suffering from "delusions." After hearings before a county judge of Pinellas County, Fla., Donaldson was found to be suffering from "paranoid schizophrenia" and was committed for "care, maintenance, Page 422 U. S. 566 and treatment" pursuant to Florida statutory provisions that have since been repealed. [Footnote 2] The state law was less than clear in specifying the grounds necessary Page 422 U. S. 567 for commitment, and the record is scanty as to Donaldson's condition at the time of the judicial hearing. These matters are, however, irrelevant, for this case involves no challenge to the initial commitment, but is focused, instead, upon the nearly 15 years of confinement that followed.The evidence at the trial showed that the hospital staff had the power to release a patient, not dangerous to himself or others, even if he remained mentally ill and had been lawfully committed. [Footnote 3] Despite many requests, O'Connor refused to allow that power to be Page 422 U. S. 568 exercised in Donaldson's case. At the trial, O'Connor indicated that he had believed that Donaldson would have been unable to make a "successful adjustment outside the institution," but could not recall the basis for that conclusion. O'Connor retired as superintendent shortly before this suit was filed. A few months thereafter, and before the trial, Donaldson secured his release, and a judicial restoration of competency, with the support of the hospital staff.The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. O'Connor himself conceded that he had no personal or second-hand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O'Connor's codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and, immediately upon his release, he secured a responsible job in hotel administration.Furthermore, Donaldson's frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release. In 1963, for example, a representative of Helping Hands, Inc., a halfway house for mental patients, wrote O'Connor asking him to release Donaldson to its care. The request was accompanied by a supporting letter from the Minneapolis Clinic of Psychiatry and Neurology, which a codefendant conceded was a "good clinic." O'Connor rejected the offer, replying that Donaldson could be released only to his parents. That rule was apparently of O'Connor's own making. At the time, Donaldson was 55 years old, and, as O'Connor knew, Donaldson's parents Page 422 U. S. 569 were too elderly and infirm to take responsibility for him. Moreover, in his continuing correspondence with Donaldson's parents, O'Connor never informed them of the Helping Hands offer. In addition, on four separate occasions between 1964 and 1968, John Lembeke, a college classmate of Donaldson's and a longtime family friend, asked O'Connor to release Donaldson to his care. On each occasion, O'Connor refused. The record shows that Lembeke was a serious and responsible person, who was willing and able to assume responsibility for Donaldson's welfare.The evidence showed that Donaldson's confinement was a simple regime of enforced custodial care, not a program designed to alleviate or cure his supposed illness. Numerous witnesses, including one of O'Connor's codefendants, testified that Donaldson had received nothing but custodial care while at the hospital. O'Connor described Donaldson's treatment as "milieu therapy." But witnesses from the hospital staff conceded that, in the context of this case, "milieu therapy" was a euphemism for confinement in the "milieu" of a mental hospital. [Footnote 4] For substantial periods, Donaldson was simply kept in a large room that housed 60 patients, many of whom were under criminal commitment. Donaldson's requests for ground privileges, occupational training, and an opportunity to discuss his case with O'Connor or other staff members were repeatedly denied.At the trial, O'Connor's principal defense was that he had acted in good faith, and was therefore immune from any liability for monetary damages. His position, in short, was that state law, which he had believed valid, Page 422 U. S. 570 had authorized indefinite custodial confinement of the "sick," even if they were not given treatment and their release could harm no one. [Footnote 5]The trial judge instructed the members of the jury that they should find that O'Connor had violated Donaldson's constitutional right to liberty if they found that he had"confined [Donaldson] against his will, knowing that he was not mentally ill or dangerous or knowing that, if mentally ill he was not receiving treatment for his alleged mental illness.""* * * *" "Now, the purpose of involuntary hospitalization is treatment, and not mere custodial care or punishment if a patient is not a danger to himself or others. Without such treatment, there is no justification from a constitutional standpoint for continued confinement unless you should also find that [Donaldson] was dangerous to either himself or others. [Footnote 6] "Page 422 U. S. 571The trial judge further instructed the jury that O'Connor was immune from damages if he"reasonably believed in good faith that detention of Page 422 U. S. 572 [Donaldson] was proper for the length of time he was so confined. . . .""However, mere good intentions which do not give rise to a reasonable belief that detention is lawfully required cannot justify [Donaldson's] confinement in the Florida State Hospital."The jury returned a verdict for Donaldson against O'Connor and a codefendant, and awarded damages of $38,500, including $10,000 in punitive damages. [Footnote 7]The Court of Appeals affirmed the judgment of the District Court in a broad opinion dealing with"the far-reaching question whether the Fourteenth Amendment guarantees a right to treatment to persons involuntarily civilly committed to state mental hospitals."493 F.2d at 509. The appellate court held that, when, as in Donaldson's case, the rationale for confinement is that the patient is in need of treatment, the Constitution requires that minimally adequate treatment, in fact, be provided. Id. at 521. The court further expressed the view that, regardless of the grounds for involuntary civil commitment, a person confined against his will at a state mental institution has"a constitutional right to receive such individual treatment as will give him a reasonable opportunity to be cured or to improve his mental condition."Id. at 520. Conversely, the court's opinion implied that it is constitutionally permissible for a State to confine a mentally ill person against his will in order to treat his illness, regardless of whether his illness renders Page 422 U. S. 573 him dangerous to himself or others. See id. at 522-527.IIWe have concluded that the difficult issues of constitutional law dealt with by the Court of Appeals are not presented by this case in its present posture. Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the State, or whether the State may compulsorily confine a nondangerous, mentally ill individual for the purpose of treatment. As we view it, this case raises a single, relatively simple, but nonetheless important question concerning every man's constitutional right to liberty.The jury found that Donaldson was neither dangerous to himself nor dangerous to others, and also found that, if mentally ill, Donaldson had not received treatment. [Footnote 8] That verdict, based on abundant evidence, makes the issue before the Court a narrow one. We need not decide whether, when, or by what procedures a mentally ill person may be confined by the State on any of the grounds which, under contemporary statutes, are generally advanced to justify involuntary confinement of such a person -- to prevent injury to the public, to ensure Page 422 U. S. 574 his own survival or safety, [Footnote 9] or to alleviate or cure his illness. See Jackson v. Indiana, 406 U. S. 715, 406 U. S. 736-737; Humphrey v. Cady, 405 U. S. 504, 405 U. S. 509. For the jury found that none of the above grounds for continued confinement was present in Donaldson's case. [Footnote 10]Given the jury's findings, what was left as justification for keeping Donaldson in continued confinement? The fact that state law may have authorized confinement of the harmless mentally ill does not itself establish a constitutionally adequate purpose for the confinement. See Jackson v. Indiana, supra at 406 U. S. 720-723; McNeil v. Director, Patuxent Institution, 407 U. S. 245, 407 U. S. 248-250. Nor is it enough that Donaldson's original confinement was Page 422 U. S. 575 founded upon a constitutionally adequate basis, if, in fact, it was, because even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed. Jackson v. Indiana, supra at 406 U. S. 738; McNeil v. Director, Patuxent Institution, supra.A finding of "mental illness" alone cannot justify a State's locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the "mentally ill" can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely, if ever, a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. See Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488-490.May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty. See, e.g., Cohen v. California, 403 U. S. 15, 403 U. S. 24-26; Coates v. City of Page 422 U. S. 576 Cincinnati, 402 U. S. 611, 402 U. S. 615; Street v. New York, 394 U. S. 576, 394 U. S. 592; cf. 413 U. S. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 413 U. S. 534.In short, a State cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends. Since the jury found, upon ample evidence, that O'Connor, as an agent of the State, knowingly did so confine Donaldson, it properly concluded that O'Connor violated Donaldson's constitutional right to freedom.IIIO'Connor contends that, in any event, he should not be held personally liable for monetary damages, because his decisions were made in "good faith." Specifically, O'Connor argues that he was acting pursuant to state law which, he believed, authorized confinement of the mentally ill even when their release would not compromise their safety or constitute a danger to others, and that he could not reasonably have been expected to know that the state law as he understood it was constitutionally invalid. A proposed instruction to this effect was rejected by the District Court. [Footnote 11]The District Court did instruct the jury, without objection, that monetary damages could not be assessed against O'Connor if he had believed reasonably and in good faith that Donaldson's continued confinement was Page 422 U. S. 577 "proper," and that punitive damages could be awarded only if O'Connor had acted "maliciously or wantonly or oppressively." The Court of Appeals approved those instructions. But that court did not consider whether it was error for the trial judge to refuse the additional instruction concerning O'Connor's claimed reliance on state law as authorization for Donaldson's continued confinement. Further, neither the District Court nor the Court of Appeals acted with the benefit of this Court's most recent decision on the scope of the qualified immunity possessed by state officials under 42 U.S.C. § 1983. Wood v. Strickland, 420 U. S. 308.Under that decision, the relevant question for the jury is whether O'Connor"knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of [Donaldson], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to [Donaldson]."Id. at 420 U. S. 322. See also Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 247-248; Wood v. Strickland, supra at 420 U. S. 330 (opinion of POWELL, J.). For purposes of this question, an official has, of course, no duty to anticipate unforeseeable constitutional developments. Wood v. Strickland, supra, at 420 U. S. 322.Accordingly, we vacate the judgment of the Court of Appeals and remand the case to enable that court to consider, in light of Wood v. Strickland, whether the District Judge's failure to instruct with regard to the effect of O'Connor's claimed reliance on state law rendered inadequate the instructions as to O'Connor's liability for compensatory and punitive damages. [Footnote 12]It is so ordered

U.S. Supreme CourtO'Connor v. Donaldson, 422 U.S. 563 (1975)O'Connor v. DonaldsonNo. 74-8Argued January 15, 1975Decided June 26, 1975422 U.S. 563SyllabusRespondent, who was confined almost 15 years "for care, maintenance, and treatment" as a mental patient in a Florida state hospital, brought this action for damages under 42 U.S.C. § 1983 against petitioner, the hospital's superintendent, and other staff members, alleging that they had intentionally and maliciously deprived him of his constitutional right to liberty. The evidence showed that respondent, whose frequent requests for release had been rejected by petitioner notwithstanding undertakings by responsible persons to care for him if necessary, was dangerous neither to himself nor others, and, if mentally ill, had not received treatment. Petitioner's principal defense was that he had acted in good faith, since state law, which he believed valid, had authorized indefinite custodial confinement of the "sick," even if they were not treated and their release would not be harmful, and that petitioner was therefore immune from any liability for monetary damages. The jury found for respondent and awarded compensatory and punitive damages against petitioner and a codefendant. The Court of Appeals, on broad Fourteenth Amendment grounds, affirmed the District Court's ensuing judgment entered on the verdict.Held:1. A State cannot constitutionally confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends, and since the jury found, upon ample evidence, that petitioner did so confine respondent, it properly concluded that petitioner had violated respondent's right to liberty. Pp. 422 U. S. 573-576.2. Since the Court of Appeals did not consider whether the trial judge erred in refusing to give an instruction requested by petitioner concerning his claimed reliance on state law as authorization for respondent's continued confinement, and since neither court below had the benefit of this Court's decision in Wood v. Strickland, 420 U. S. 308, on the scope of a state official's qualified immunity under 42 U.S.C. § 1983, the case is vacated and Page 422 U. S. 564 remanded for consideration of petitioner's liability vel non for monetary damages for violating respondent's constitutional right. Pp. 576-577.493 F.2d 507, vacated and remanded.STEWART, J., delivered the opinion for a unanimous Court. BURGER, C.J., filed a concurring opinion, post, p. 422 U. S. 578.

1964_255

MR. JUSTICE STEWART delivered the opinion of the Court.The American Ship Building Company seeks review of a decision of the United States Court of Appeals for the District of Columbia enforcing an order of the National Labor Relations Board which found that the company had committed an unfair labor practice under §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act. [Footnote 1] The question presented is that expressly reserved in Labor Board v. Truck Drivers Local Union, 353 U. S. 87, 353 U. S. 93, namely, whether an employer commits an unfair labor practice under these sections of the Act when he temporarily lays off or "locks out" his employees during a labor dispute to bring economic pressure in support of Page 380 U. S. 302 his bargaining position. To resolve an asserted conflict among the circuits [Footnote 2] upon this important question of federal labor law, we granted certiorari, 379 U.S. 814.The American Ship Building Company operates four shipyards on the Great Lakes -- at Chicago at Buffalo, and at Toledo and Lorain, Ohio. The company is primarily engaged in the repairing of ships, a highly seasonal business concentrated in the winter months when the freezing of the Great Lakes renders shipping impossible. What limited business is obtained during the shipping season is frequently such that speed of execution is of the utmost importance to minimize immobilization of the ships.Since 1952, the employer has engaged in collective bargaining with a group of eight unions. Prior to the negotiations here in question, the employer had contracted with the unions on five occasions, each agreement having been preceded by a strike. The particular chapter of the collective bargaining history with which we are concerned opened shortly before May 1, 1961, when the unions notified the company of their intention to seek modification of the current contract, due to expire on August 1.At the initial bargaining meeting on June 6, 1961, the company took the position that its competitive situation would not allow increased compensation. The unions countered with demands for increased fringe benefits and some unspecified wage increase. Several meetings were held in June and early July during which negotiations focussed upon the fringe benefit questions without any substantial progress. At the last meeting, the parties resolved to call in the Federal Mediation and Conciliation Page 380 U. S. 303 Service, which set the next meeting for July 19. At this meeting, the unions first unveiled their demand for a 20-cent-an-hour wage increase and proposed a six-month extension of the contract pending continued negotiations. The employer rejected the proposed extension because it would have led to expiration during the peak season.Further negotiations narrowed the dispute to five or six issues, all involving substantial economic differences. On July 31, the eve of the contract's expiration, the employer made a proposal; the unions countered with another, revived their proposal for a six-month extension, and proposed, in the alternative, that the existing contract, with its no-strike clause, be extended indefinitely with the terms of the new contract to be made retroactive to August 1. [Footnote 3] After rejection of the proposed extensions, the employer's proposal was submitted to the unions' membership; on August 8 the unions announced that this proposal had been overwhelmingly rejected. The following day, the employer made another proposal which the unions refused to submit to their membership; the unions made no counteroffer, and the parties separated without setting a date for further meetings, leaving this to the discretion of the conciliator.Thus, on August 9, after extended negotiations, the parties separated without having resolved substantial differences on the central issues dividing them and without having specific plans for further attempts to resolve them -- a situation which the trial examiner found was an impasse. Throughout the negotiations, the employer displayed anxiety as to the unions' strike plans, fearing that the unions would call a strike as soon as a ship entered the Chicago yard or delay negotiations into the winter to Page 380 U. S. 304 increase strike leverage. The union negotiator consistently insisted that it was his intention to reach an agreement without calling a strike; however, he did concede incomplete control over the workers -- a fact borne out by the occurrence of a wildcat strike in February, 1961. Because of the danger of an unauthorized strike and the consistent and deliberate use of strikes in prior negotiations, the employer remained apprehensive of the possibility of a work stoppage.In light of the failure to reach an agreement and the lack of available work, the employer decided to lay off certain of his workers. On August 11, the employees received a notice which read: "Because of the labor dispute which has been unresolved since August 1, 1961, you are laid off until further notice." The Chicago yard was completely shut down, and all but two employees laid off at the Toledo yard. A large force was retained at Lorain to complete a major piece of work there, and the employees in the Buffalo yard were gradually laid off as miscellaneous tasks were completed. Negotiations were resumed shortly after these layoffs, and continued for the following two months until a two-year contract was agreed upon on October 27. The employees were recalled the following day.Upon claims filed by the unions, the General Counsel of the Board issued a complaint charging the employer with violations of §§ 8(a)(1), (a)(3), and (a)(5). [Footnote 4] The trial examiner found that, although there had been no work in the Chicago yard since July 19, its closing was not due to lack of work. Despite similarly slack seasons in the past, the employer had, for 17 years, retained a nucleus crew to do maintenance work and remain ready to take such work as might come in. The examiner went on to find that the employer was reasonably apprehensive Page 380 U. S. 305 of a strike at some point. Although the unions had given assurances that there would be no strike, past bargaining history was thought to justify continuing apprehension that the unions would fail to make good their assurances. It was further found that the employer's primary purpose in locking out his employees was to avert peculiarly harmful economic consequences which would be imposed on him and his customers if a strike were called either while a ship was in the yard during the shipping season or later when the yard was fully occupied. The examiner concluded that the employer:"was economically justified and motivated in laying off its employees when it did, and the fact that its judgment was partially colored by its intention to break the impasse which existed is immaterial in the peculiar and special circumstances of this case. Respondent, by its actions, therefore, did not violate sections 8(a)(1), (3), and (5) of the Act."A three-to-two majority of the Board rejected the trial examiner's conclusion that the employer could reasonably anticipate a strike. Finding the unions' assurances sufficient to dispel any such apprehension, the Board was able to find only one purpose underlying the layoff: a desire to bring economic pressure to secure prompt settlement of the dispute on favorable terms. The Board did not question the examiner's finding that the layoffs had not occurred until after a bargaining impasse had been reached. Nor did the Board remotely suggest that the company's decision to lay off its employees was based either on union hostility or on a desire to avoid its bargaining obligations under the Act. The Board concluded that the employer,"by curtailing its operations at the South Chicago yard with the consequent layoff of the employees, coerced employees in the exercise of their bargaining rights in violation of Section 8(a)(1) of the Act, Page 380 U. S. 306 and discriminated against its employees within the meaning of Section 8(a)(3) of the Act. [Footnote 5]"142 N.L.R.B. at 1364-1365.The difference between the Board and the trial examiner is thus a narrow one turning on their differing assessments of the circumstances which the employer claims gave it reason to anticipate a strike. Both the Board and the examiner assumed, within the established pattern of Board analysis, [Footnote 6] that, if the employer had shut down its yard and laid off its workers solely for the purpose of bringing to bear economic pressure to break an impasse and secure more favorable contract terms, an unfair labor practice would be made out."The Board has held that, absent special circumstances, an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position. Such conduct, the Board has held, presumptively infringes upon the collective bargaining rights of employees in violation of Section 8(a)(1), and the lockout, with its consequent layoff, amounts to discrimination within the meaning of Section 8(a)(3). In addition, the Board has held that such conduct subjects the Union and the employees it represents to unwarranted and illegal pressure, and creates an atmosphere in which the free opportunity for negotiation contemplated by Section 8(a)(5) Page 380 U. S. 307 does not exist."Quaker State Oil Refining Corp., 121 N.L.R.B. 334, 337.The Board has, however, exempted certain classes of lockouts from proscription."Accordingly, it has held that lockouts are permissible to safeguard against . . . loss where there is reasonable ground for believing that a strike was threatened or imminent."Ibid. Developing this distinction in its rulings, the Board has approved lockouts designed to prevent seizure of a plant by a sit-down strike, Link-Belt Co., 26 N.L.R.B. 227; to forestall repetitive disruptions of an integrated operation by "quickie" strikes, International Shoe Co., 93 N.L.R.B. 907; to avoid spoilage of materials which would result from a sudden work stoppage, Duluth Bottling Assn., 48 N.L.R.B. 1335; and to avert the immobilization of automobiles brought in for repair, Betts Cadillac Olds, Inc., 96 N.L.R.B. 268. In another distinct class of cases, the Board has sanctioned the use of the lockout by a multiemployer bargaining unit as a response to a whipsaw strike against one of its members. Buffalo Linen Supply Co., 109 N.L.R.B. 447, rev'd sub. nom. Truck Drivers Local Union v. Labor Board, 231 F.2d 110, rev'd, 353 U. S. 353 U.S. 87. [Footnote 7]In analyzing the status of the bargaining lockout under §§ 8(a)(1) and (3) of the National Labor Relations Act, it is important that the practice with which we are here concerned be distinguished from other forms of temporary separation from employment. No one would deny that an employer is free to shut down his enterprise temporarily Page 380 U. S. 308 for reasons of renovation or lack of profitable work unrelated to his collective bargaining situation. Similarly, we put to one side cases where the Board has concluded on the basis of substantial evidence that the employer has used a lockout as a means to injure a labor organization or to evade his duty to bargain collectively. Hopwood Retinning Co., 4 N.L.R.B. 922; Scott Paper Box Co., 81 N.L.R.B. 535. What we are here concerned with is the use of a temporary layoff of employees solely as a means to bring economic pressure to bear in support of the employer's bargaining position, after an impasse has been reached. This is the only issue before us, and all that we decide. [Footnote 8]To establish that this practice is a violation of § 8(a)(1), it must be shown that the employer has interfered with, restrained, or coerced employees in the exercise of some right protected by § 7 of the Act. The Board's position is premised on the view that the lockout interferes with two of the rights guaranteed by § 7: the right to bargain collectively and the right to strike. In the Board's view, the use of the lockout "punishes" employees for the presentation of and adherence to demands made by their bargaining representatives, and so coerces them in the exercise of their right to bargain collectively. It is important to note that there is here no allegation that the employer used the lockout in the service of designs inimical to the process of collective bargaining. There was no evidence and no finding that the employer was hostile to its employees' banding together for collective bargaining, or that the lockout was designed to discipline Page 380 U. S. 309 them for doing so. It is therefore inaccurate to say that the employer's intention was to destroy of frustrate the process of collective bargaining. What can be said is that it intended to resist the demands made of it in the negotiations, and to secure modification of these demands. We cannot see that this intention is in any way inconsistent with the employees' rights to bargain collectively.Moreover, there is no indication, either as a general matter or in this specific case, that the lockout will necessarily destroy the unions' capacity for effective and responsible representation. The unions here involved have vigorously represented the employees since 1952, and there is nothing to show that their ability to do so has been impaired by the lockout. Nor is the lockout one of those acts which are demonstrably so destructive of collective bargaining that the Board need not inquire into employer motivation, as might be the case, for example, if an employer permanently discharged his unionized staff and replaced them with employees known to be possessed of a violent antiunion animus. Cf. Labor Board v. Erie Resistor Corp., 373 U. S. 221. The lockout may well dissuade employees from adhering to the position which they initially adopted in the bargaining, but he right to bargain collectively does not entail any "right" to insist on one's position free from economic disadvantage. Proper analysis of the problem demands that the simple intention to support the employer's bargaining position as to compensation and the like be distinguished from a hostility to the process of collective bargaining which could suffice to render a lockout unlawful. See Labor Board v. Brown, ante, p. 380 U. S. 278.The Board has taken the complementary view that the lockout interferes with the right to strike protected under Page 380 U. S. 310 §§ 7 and 13 of the Act [Footnote 9] in that it allows the employer to preempt the possibility of a strike, and thus leave the union with "nothing to strike against." Insofar as this means that, once employees are locked out, they are deprived of their right to call a strike against the employer because he is already shut down, the argument is wholly specious, for the work stoppage which would have been the object of the strike has, in fact, occurred. [Footnote 10] It is true that recognition of the lockout deprives the union of exclusive control of the timing and duration of work stoppages calculated to influence the result of collective bargaining negotiations, but there is nothing in the statute which would imply that the right to strike "carries with it" the right exclusively to determine the timing and duration of all work stoppages. The right to strike, as commonly understood, is the right to cease work -- nothing more. No doubt, a union's bargaining power would be enhanced if it possessed not only the simple right to strike but also the power exclusively to determine when work stoppages should occur, but the Act's provisions are not indefinitely elastic, content-free forms to be shaped in whatever manner the Board might think best conforms to the proper balance of bargaining power.Thus, we cannot see that the employer's use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike. Accordingly, we conclude Page 380 U. S. 311 that, on the basis of the findings made by the Board in this case, there has been no violation of § 8(a)(1).Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute, there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. See Labor Board v. Brown, ante, p. 278; Radio Officers' Union v. Labor Board, 347 U. S. 17, 347 U. S. 43; Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 46. Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline, or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. See, e.g., Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 304 U. S. 347. Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise. See Textile Workers' Union v. Darlington Mfg. Co., ante, p. 380 U. S. 263.This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is Page 380 U. S. 312 justifiable to disbelieve the employer's protestations of innocent purpose. Radio Officers' Union v. Labor Board, supra, 347 U.S. at 347 U. S. 44-45; Labor Board v. Erie Resistor Corp., supra. Thus, where many have broken a shop rule, but only union leaders have been discharged, the Board need not listen too long to the plea that shop discipline was simply being enforced. In other situations, we have described the process as the"far more delicate task . . . of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner. . . ."Labor Board v. Erie Resistor Corp., supra, at 373 U. S. 229.But this lockout does not fall into that category of cases arising under § 8(a)(3) in which the Board may truncate its inquiry into employer motivation. As this case well shows, use of the lockout does not carry with it any necessary implication that the employer acted to discourage union membership or otherwise discriminate against union members as such. The purpose and effect of the lockout were only to bring pressure upon the union to modify its demands. Similarly, it does not appear that the natural tendency of the lockout is severely to discourage union membership, while serving no significant employer interest. In fact, it is difficult to understand what tendency to discourage union membership or otherwise discriminate against union members was perceived by the Board. There is no claim that the employer locked out only union members, or locked out any employee simply because he was a union member; nor is it alleged that the employer conditioned rehiring upon resignation from the union. It is true that the employees suffered economic disadvantage because of their union's insistence on demands unacceptable to the employer, but this is also true of many steps which an employer may take during a bargaining conflict, and the existence of an arguable possibility that someone may feel himself Page 380 U. S. 313 discouraged in his union membership or discriminated against by reason of that membership cannot suffice to label them violations of § 8(a)(3) absent some unlawful intention. The employer's permanent replacement of strikers (Labor Board v. Mackay Radio & Telegraph Co., supra), his unilateral imposition of terms (Labor Board v. Tex-Tan, Inc., 318 F.2d 472, 479-482), or his simple refusal to make a concession which would terminate a strike -- all impose economic disadvantage during a bargaining conflict, but none is necessarily a violation of § 8(a)(3).To find a violation of § 8(a)(3), then, the Board must find that the employer acted for a proscribed purpose. Indeed, the Board itself has always recognized that certain "operative" or "economic" purposes would justify a lockout. But the Board has erred in ruling that only these purposes will remove a lockout from the ambit of § 8(a)(3), for that section requires an intention to discourage union membership or otherwise discriminate against the union. There was not the slightest evidence, and there was no finding, that the employer was actuated by a desire to discourage membership in the union, as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the "union membership" which is not to be discouraged refers to more than the payment of dues, and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. Labor Board, supra, at 347 U. S. 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that, where the intention proven is merely to bring about a settlement of a labor dispute on favorable terms, no violation of § 8(a)(3) is shown. Page 380 U. S. 314The conclusions which we draw from analysis of §§ 8(a)(1) and (3) are consonant with what little of relevance can be drawn from the balance of the statute and its legislative history. In the original version of the Act, the predecessor of § 8(a)(1) declared it an unfair labor practice"[t]o attempt, by interference, influence, restraint, favor, coercion, or lockout, or by any other means, to impair the right of employees guaranteed in section 4. [Footnote 11]"Prominent in the criticism leveled at the bill in the Senate Committee hearings was the charge that it did not accord evenhanded treatment to employers and employees because it prohibited the lockout while protecting the strike. [Footnote 12] In the face of such criticism, the Committee added a provision prohibiting employee interference with employer bargaining activities, [Footnote 13] and deleted the reference to the lockout. [Footnote 14] A plausible inference to be drawn from this history is that the language was deleted Page 380 U. S. 315 to mollify those who saw in the bill an inequitable denial of resort to the lockout, and to remove any language which might give rise to fears that the lockout was being proscribed per se. It is, in any event, clear that the Committee was concerned with the status of the lockout, and that the bill, as reported and as finally enacted, contained no prohibition on the use of the lockout as such.Although neither § 8(a)(1) nor § 8(a)(3) refers specifically to the lockout, various other provisions of the National Labor Relations Act do refer to the lockout, and these references can be interpreted as a recognition of the legitimacy of the device as a means of applying economic pressure in support of bargaining positions. Thus, 29 U.S.C. § 158(d)(4) (1958 ed.) prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U.S.C. § 173(c) (1958 ed.) directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts; and 29 U.S.C. §§ 176, 178 (1958 ed.) authorize procedures whereby the President can institute a board of inquiry to forestall certain strikes or lockouts. The correlative use of the terms "strike" and "lockout" in these sections contemplates that lockouts will be used in the bargaining process in some fashion. This is not to say that these provisions serve to define the permissible scope of a lockout by an employer. That, in the context of the present case, is a question ultimately to be resolved by analysis of §§ 8(a)(1) and (3).The Board has justified its ruling in this case and its general approach to the legality of lockouts on the basis of its special competence to weigh the competing interests of employers and employees and to accommodate these interests according to its expert judgment."The Board has reasonably concluded that the availability of such a weapon would so substantially tip the scales in the employer's favor as to defeat the Congressional purpose of Page 380 U. S. 316 placing employees on a par with their adversary at the bargaining table. [Footnote 15]"To buttress its decision as to the balance struck in this particular case, the Board points out that the employer has been given other weapons to counterbalance the employees' power of strike. The employer may permanently replace workers who have gone out on strike, or, by stockpiling and subcontracting, maintain his commercial operations while the strikers bear the economic brunt of the work stoppage. Similarly, the employer can institute unilaterally the working conditions which he desires once his contract with the union has expired. Given these economic weapons, it is argued, the employer has been adequately equipped with tools of economic self-help.There is, of course, no question that the Board is entitled to the greatest deference in recognition of its special competence in dealing with labor problems. In many areas, its evaluation of the competing interests of employer and employee should unquestionably be given conclusive effect in determining the application of §§ 8(a)(1), (3), and (5). However, we think that the Board construes its functions too expansively when it claims general authority to define national labor policy by balancing the competing interests of labor and management.While a primary purpose of the National Labor Relations Act was to redress the perceived imbalance of economic power between labor and management, it sought to accomplish that result by conferring certain affirmative rights on employees and by placing certain enumerated restrictions on the activities of employers. The Act prohibited acts which interfered with, restrained, or coerced employees in the exercise of their rights to organize a union, to bargain collectively, and to strike; it proscribed Page 380 U. S. 317 discrimination in regard to tenure and other conditions of employment to discourage membership in any labor organization. The central purpose of these provisions was to protect employee self-organization and the process of collective bargaining from disruptive interferences by employers. Having protected employee organization in countervailance to the employers' bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful measures not avail. Sections 8(a)(1) and (3) do not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process, and to deny weapons to one party or the other because of its assessment of that party's bargaining power. Labor Board v. Brown, ante, p. 278. In this case, the Board has, in essence, denied the use of the bargaining lockout to the employer because of its conviction that use of this device would give the employer "too much power." In so doing, the Board has stretched §§ 8(a)(1) and (3) far beyond their functions of protecting the rights of employee organization and collective bargaining. What we have recently said in a closely related context is equally applicable here:"[W]hen the Board moves in this area . . . , it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced' bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive' economic weapons into . . . the Act. . . . We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the Page 380 U. S. 318 bargaining process to an extent Congress has not countenanced."Labor Board v. Insurance Agents' International Union, 361 U. S. 477, 361 U. S. 497-498.We are unable to find that any fair construction of the provisions relied on by the Board in this case can support its finding of an unfair labor practice. Indeed, the role assumed by the Board in this area is fundamentally inconsistent with the structure of the Act and the function of the sections relied upon. The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress. Accordingly, we hold that an employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position.Reversed

U.S. Supreme CourtAmerican Ship Building Co. v. Labor Board, 380 U.S. 300 (1965)American Ship Building Co. v. Labor BoardNo. 255Argued January 21, 1965Decided March 29, 1965380 U.S. 300SyllabusPetitioner, operator of four shipyards, entered negotiations with the unions representing its employees for the purpose of securing a new agreement to replace the current contract, soon to expire. After a bargaining impasse was reached, petitioner temporarily closed down one yard and laid off employees at the others. The National Labor Relations Board found that the employer could not have reasonably anticipated a strike, that the sole purpose of the layoffs was to bring economic pressure to secure a prompt and favorable settlement of the labor dispute, and that, therefore, petitioner violated §§ 8(a)(1) and (3) of the National Labor Relations Act. The Court of Appeals granted enforcement of the Board's order.Held: an employer does not commit an unfair labor practice under either § 8(a)(1) or § 8(a)(3) of the Act when, after an impasse has been reached in negotiations, he temporarily shuts down his plant and lays off his employees for the sole purpose of applying economic pressure in support of his legitimate bargaining position. Pp. 380 U. S. 308-318.118 U.S.App.D.C. 78, 331 F.2d 839 reversed. Page 380 U. S. 301

1993_93-517

ion with respect to Parts II (introduction) and II-A, in which BLACKMUN, STEVENS, and GINSBURG, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 710. STEVENS, J., filed a concurring opinion, in which BLACKMUN and GINSBURG, JJ., joined, post, p. 711. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 712. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 722. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 732.Nathan Lewin argued the cause for petitioners in Nos. 93-517 and 93-527. With him on the briefs was Lisa D. Burget.Julie S. Mereson, Assistant Attorney General of New York, argued the cause for petitioners in No. 93-539. With her on the briefs were G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor General, and Peter H. Schiff, Deputy Solicitor General. Lawrence W Reich and John H. Gross filed briefs for petitioner Board of Education of the MonroeWoodbury Central School District.Jay Worona argued the cause for respondents in all cases.With him on the brief was Pilar Sokol.ttBriefs of amici curiae urging reversal in No. 93-517 were filed for the Archdiocese of New York by Richard J. Concannon; for the American Center for Law and Justice et al. by Jay Alan Sekulow, James Matthew Henderson, Sr., Mark N. Troobnick, Keith A. Fournier, Nancy J. Gannon, and Robert A. Destro; for the Christian Legal Society et al. by Michael W McConnell, Thomas C. Berg, and Steven T. McFarland; and for the Knights of Columbus by William P. Barr, Michael A. Carvin, and Carl A. Anderson.Briefs of amici curiae urging reversal in all cases were filed for Agudath Israel of America by David Zwiebel; for the Institute for Religion and Polity by Ronald D. Maines; for the National Jewish Commission on Law and Public Affairs (COLPA) by Julius Berman and Dennis Rapps; for the Southern Baptist Convention by Michael K. Whitehead; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris.Briefs of amici curiae urging affirmance in all cases were filed for the American Jewish Congress et al. by Norman Redlich, Marc D. Stern, and Elliot Mincberg; for Americans United for Separation of Church and State et al. by Steven K. Green, Steven R. Shapiro, Jeffrey P. Sinensky, Steven690JUSTICE SOUTER delivered the opinion of the Court, except as to Parts II (introduction) and II-A.The village of Kiryas Joel in Orange County, New York, is a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. The village fell within the MonroeWoodbury Central School District until a special state statute passed in 1989 carved out a separate district, following village lines, to serve this distinctive population. 1989 N. Y. Laws, ch. 748. The question is whether the Act creating the separate school district violates the Establishment Clause of the First Amendment, binding on the States through the Fourteenth Amendment. Because this unusual Act is tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion, we hold that it violates the prohibition against establishment.IThe Satmar Hasidic sect takes its name from the town near the Hungarian and Romanian border where, in the early years of this century, Grand Rebbe Joel Teitelbaum molded the group into a distinct community. After World War II and the destruction of much of European Jewry, the GrandM. Freeman, and Samuel Rabinove; for the Committee for the Well-Being of Kiryas Joel by Joan E. Goldberg and Michael H. Sussman; for the General Council on Finance and Administration of the United Methodist Church by Samuel W Witwer, Jr.; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell; for the National Council of Churches of Christ in the U. S. A. et al. by Douglas Laycock; for the National School Boards Association by Gwendolyn H. Gregory, August W Steinhilber, and Thomas A. Shannon; for the New York State United Teachers et al. by Bernard F. Ashe and Gerard John De Wolf; and for the Council on Religious Freedom by Lee Boothby, Walter E. Carson, and Robert W Nixon.Briefs of amici curiae in all cases were filed for the New York Committee for Public Education and Religious Liberty by Stanley Geller; and for the Rutherford Institute by John W Whitehead and James J. Knicely.691Rebbe and most of his surviving followers moved to the Williamsburg section of Brooklyn, New York. Then, 20 years ago, the Satmars purchased an approved but undeveloped subdivision in the town of Monroe and began assembling the community that has since become the village of Kiryas Joel. When a zoning dispute arose in the course of settlement, the Satmars presented the Town Board of Monroe with a petition to form a new village within the town, a right that New York's Village Law gives almost any group of residents who satisfy certain procedural niceties. See N. Y. Village Law, Art. 2 (McKinney 1973 and Supp. 1994). Neighbors who did not wish to secede with the Satmars objected strenuously, and after arduous negotiations the proposed boundaries of the village of Kiryas Joel were drawn to include just the 320 acres owned and inhabited entirely by Satmars. The village, incorporated in 1977, has a population of about 8,500 today. Rabbi Aaron Teitelbaum, eldest son of the current Grand Rebbe, serves as the village rov (chief rabbi) and rosh yeshivah (chief authority in the parochial schools).The residents of Kiryas Joel are vigorously religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications; and dress in distinctive ways that include headcoverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools, most boys at the United Talmudic Academy where they receive a thorough grounding in the Torah and limited exposure to secular subjects, and most girls at Bais Rochel, an affiliated school with a curriculum designed to prepare girls for their roles as wives and mothers. See generally W. Kephart & W. Zellner, Extraordinary Groups (4th ed. 1991); 1. Rubin, Satmar, An Island in the City (1972).692These schools do not, however, offer any distinctive services to handicapped children, who are entitled under state and federal law to special education services even when enrolled in private schools. Individuals with Disabilities Education Act, 20 U. S. C. § 1400 et seq. (1988 ed. and Supp. IV); N. Y. Educ. Law, Art. 89 (McKinney 1981 and Supp. 1994). Starting in 1984 the Monroe-Woodbury Central School District provided such services for the children of Kiryas Joel at an annex to Bais Rochel, but a year later ended that arrangement in response to our decisions in Aguilar v. Felton, 473 U. S. 402 (1985), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985). Children from Kiryas Joel who needed special education (including the deaf, the mentally retarded, and others suffering from a range of physical, mental, or emotional disorders) were then forced to attend public schools outside the village, which their families found highly unsatisfactory. Parents of most of these children withdrew them from the Monroe-Woodbury secular schools, citing "the panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different," and some sought administrative review of the public-school placements. Board of Ed. of Monroe-Woodbury Central School Dist. v. Wieder, 72 N. Y. 2d 174, 180-181, 527 N. E. 2d 767, 770 (1988).Monroe-Woodbury, for its part, sought a declaratory judgment in state court that New York law barred the district from providing special education services outside the district's regular public schools. Id., at 180, 527 N. E. 2d, at 770. The New York Court of Appeals disagreed, holding that state law left Monroe-Woodbury free to establish a separate school in the village because it gives educational authorities broad discretion in fashioning an appropriate program. Id., at 186-187, 527 N. E. 2d, at 773. The court added, however, that the Satmars' constitutional right to exercise their religion freely did not require a separate school, since the parents had alleged emotional trauma, not inconsistency693with religious practice or doctrine, as the reason for seeking separate treatment. Id., at 189, 527 N. E. 2d, at 775.By 1989, only one child from Kiryas Joel was attending Monroe-Woodbury's public schools; the village's other handicapped children received privately funded special services or went without. It was then that the New York Legislature passed the statute at issue in this litigation, which provided that the village of Kiryas Joel "is constituted a separate school district, ... and shall have and enjoy all the powers and duties of a union free school district .... " 1989 N. Y. Laws, ch. 748.1 The statute thus empowered a locally elected board of education to take such action as opening schools and closing them, hiring teachers, prescribing textbooks, establishing disciplinary rules, and raising property taxes to fund operations. N. Y. Educ. Law § 1709 (McKinney 1988). In signing the bill into law, Governor Cuomo recognized that the residents of the new school district were "all members of the same religious sect," but said that the bill was "a good faith effort to solve thee] unique problem" associated with providing special education services to handicapped children in the village. Memorandum filed with Assembly Bill Number 8747 (July 24, 1989), App. 40-41.Although it enjoys plenary legal authority over the elementary and secondary education of all school-aged children1 The statute provides in full:"Section 1. The territory of the village of Kiryas Joel in the town of Monroe, Orange county, on the date when this act shall take effect, shall be and hereby is constituted a separate school district, and shall be known as the Kiryas Joel village school district and shall have and enjoy all the powers and duties of a union free school district under the provisions of the education law."§ 2. Such district shall be under the control of a board of education, which shall be composed of from five to nine members elected by the qualified voters of the village of Kiryas Joel, said members to serve for terms not exceeding five years."§ 3. This act shall take effect on the first day of July next succeeding the date on which it shall have become a law."694in the village, N. Y. Educ. Law § 3202 (McKinney 1981 and Supp. 1994), the Kiryas Joel Village School District currently runs only a special education program for handicapped children. The other village children have stayed in their parochial schools, relying on the new school district only for transportation, remedial education, and health and welfare services. If any child without a handicap in Kiryas Joel were to seek a public-school education, the district would pay tuition to send the child into Monroe-Woodbury or another school district nearby. Under like arrangements, several of the neighboring districts send their handicapped Hasidic children into Kiryas Joel, so that two thirds of the full-time students in the village's public school come from outside. In all, the new district serves just over 40 full-time students, and two or three times that many parochial school students on a part-time basis.Several months before the new district began operations, the New York State School Boards Association and respondents Grumet and Hawk brought this action against the State Education Department and various state officials, challenging Chapter 748 under the National and State Constitutions as an unconstitutional establishment of religion.2 The State Supreme Court for Albany County allowed the Kiryas Joel Village School District and the Monroe-Woodbury Central School District to intervene as parties defendant and accepted the parties' stipulation discontinuing the action against the original state defendants, although the attorney general of New York continued to appear to defend the constitutionality of the statute. See N. Y. Exec. Law § 71 (Mc-2 Messrs. Grumet and Hawk sued in both their individual capacities and as officers of the State School Boards Association, but New York's Appellate Division ruled that the Association and its officers lacked standing to challenge the constitutionality of Chapter 748. 187 App. Div. 2d 16, 19, 592 N. Y. S. 2d 123, 126 (1992). Thus, as the case comes to us, respondents are simply citizen taxpayers. See N. Y. State Fin. Law § 123 (McKinney 1989).695Kinney 1993). On cross-motions for summary judgment, the trial court ruled for the plaintiffs (respondents here), finding that the statute failed all three prongs of the test in Lemon v. Kurtzman, 403 U. S. 602 (1971), and was thus unconstitutional under both the National and State Constitutions. Grumet v. New York State Ed. Dept., 151 Misc. 2d 60, 579 N. Y. S. 2d 1004 (1992).A divided Appellate Division affirmed on the ground that Chapter 748 had the primary effect of advancing religion, in violation of both constitutions, 187 App. Div. 2d 16, 592 N. Y. S. 2d 123 (1992), and the State Court of Appeals affirmed on the federal question, while expressly reserving the state constitutional issue, 81 N. Y. 2d 518, 618 N. E. 2d 94 (1993). Judge Smith wrote for the court in concluding that because both the district's public-school population and its school board would be exclusively Hasidic, the statute created a "symbolic union of church and State" that was "likely to be perceived by the Satmarer Hasidim as an endorsement of their religious choices, or by nonadherents as a disapproval" of their own. Id., at 529, 618 N. E. 2d, at 100. As a result, said the majority, the statute's primary effect was an impermissible advancement of religious belief. In a concurring opinion, Judge Hancock found the effect purposeful, so that the statute violated the first as well as the second prong of Lemon. 81 N. Y. 2d, at 540, 618 N. E. 2d, at 107. Chief Judge Kaye took a different tack, applying the strict scrutiny we have prescribed for statutes singling out a particular religion for special privileges or burdens; she found Chapter 748 invalid as an unnecessarily broad response to a narrow problem, since it creates a full school district instead of simply prescribing a local school for the village's handicapped children. Id., at 532, 618 N. E. 2d, at 102 (concurring opinion). In dissent, Judge Bellacosa objected that the new district was created to enable the village's handicapped children to receive a secular, public-school education; that this was, indeed, its primary effect; and that any attenuated ben-696Opinion of SOUTER, J.efit to religion was a reasonable accommodation of both religious and cultural differences. Id., at 550-551, 618 N. E. 2d, at 113.We stayed the mandate of the Court of Appeals, 509 U. S. 938 (1993), and granted certiorari, 510 U. S. 989 (1993).II"A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of 'neutrality' toward religion," Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 792-793 (1973), favoring neither one religion over others nor religious adherents collectively over nonadherents. See Epperson v. Arkansas, 393 U. S. 97,104 (1968). Chapter 748, the statute creating the Kiryas Joel Village School District, departs from this constitutional command by delegating the State's discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally.Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982), provides an instructive comparison with the litigation before us. There, the Court was requested to strike down a Massachusetts statute granting religious bodies veto power over applications for liquor licenses. Under the statute, the governing body of any church, synagogue, or school located within 500 feet of an applicant's premises could, simply by submitting written objection, prevent the Alcohol Beverage Control Commission from issuing a license. Id., at 117. In spite of the State's valid interest in protecting churches, schools, and like institutions from" 'the hurly-burly' associated with liquor outlets," id., at 123 (internal quotation marks omitted), the Court found that in two respects the statute violated "[t]he wholesome 'neutrality' of which this Court's cases speak," School Dist. of Abington Township v. Schempp, 374 U. S. 203, 222 (1963). The Act brought about a "'fusion of697governmental and religious functions'" by delegating "important, discretionary governmental powers" to religious bodies, thus impermissibly entangling government and religion. 459 U. S., at 126, 127 (quoting School Dist. of Abington Township v. Schempp, supra, at 222); see also Lemon v. Kurtzman, supra, at 613. And it lacked "any 'effective means of guaranteeing' that the delegated power '[would] be used exclusively for secular, neutral, and nonideological purposes,'" 459 U. S., at 125 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, supra, at 780); this, along with the "significant symbolic benefit to religion" associated with "the mere appearance of a joint exercise of legislative authority by Church and State," led the Court to conclude that the statute had a "'primary' and 'principal' effect of advancing religion," 459 U. S., at 125-126; see also Lemon v. Kurtzman, supra, at 612. Comparable constitutional problems inhere in the statute before us.ALarkin presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America, cf. Wolman v. Walter, 433 U. S. 229, 263 (1977) (Powell, J., concurring in part, concurring in judgment in part, and dissenting in part), and a violation of "the core rationale underlying the Establishment Clause," 459 U. S., at 126. See also Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 590-591 (1989) (Establishment Clause prevents delegating governmental power to religious group); id., at 660 (KENNEDY, J., concurring in judgment in part and dissenting in part) (same); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947) (Establishment Clause prevents State from "participat[ing] in the affairs of any religious organizations or groups and vice versa"); Torcaso v. Watkins, 367 U. S. 488, 493-494 (1961) (same).698Opinion of SOUTER, J.The Establishment Clause problem presented by Chapter 748 is more subtle, but it resembles the issue raised in Larkin to the extent that the earlier case teaches that a State may not delegate its civic authority to a group chosen according to a religious criterion. Authority over public schools belongs to the State, N. Y. Const., Art. XI, § 1, and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group. What makes this litigation different from Larkin is the delegation here of civic power to the "qualified voters of the village of Kiryas Joel," 1989 N. Y. Laws, ch. 748, as distinct from a religious leader such as the village rov, or an institution of religious government like the formally constituted parish council in Larkin. In light of the circumstances of these cases, however, this distinction turns out to lack constitutional significance.It is, first, not dispositive that the recipients of state power in these cases are a group of religious individuals united by common doctrine, not the group's leaders or officers. Although some school district franchise is common to all voters, the State's manipulation of the franchise for this district limited it to Satmars, giving the sect exclusive control of the political subdivision. In the circumstances of these cases, the difference between thus vesting state power in the members of a religious group as such instead of the officers of its sectarian organization is one of form, not substance. It is true that religious people (or groups of religious people) cannot be denied the opportunity to exercise the rights of citizens simply because of their religious affiliations or commitments, for such a disability would violate the right to religious free exercise, see McDaniel v. Paty, 435 U. S. 618 (1978), which the First Amendment guarantees as certainly as it bars any establishment. But McDaniel, which held that a religious individual could not, because of his religious activities, be denied the right to hold political office, is not in point here. That individuals who happen to be religious699may hold public office does not mean that a State may deliberately delegate discretionary power to an individual, institution, or community on the ground of religious identity. If New York were to delegate civic authority to "the Grand Rebbe," Larkin would obviously require invalidation (even though under McDaniel the Grand Rebbe may run for, and serve on, his local school board), and the same is true if New York delegates political authority by reference to religious belief. Where "fusion" is an issue, the difference lies in the distinction between a government's purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.Of course, Chapter 748 delegates power not by express reference to the religious belief of the Satmar community, but to residents of the "territory of the village of Kiryas Joel." 1989 N. Y. Laws, ch. 748. Thus the second (and arguably more important) distinction between these cases and Larkin is the identification here of the group to exercise civil authority in terms not expressly religious. But our analysis does not end with the text of the statute at issue, see Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534 (1993); Wallace v. Jaffree, 472 U. S. 38, 56-61 (1985); Gomillion v. Lightfoot, 364 U. S. 339, 341-342 (1960), and the context here persuades us that Chapter 748 effectively identifies these recipients of governmental authority by reference to doctrinal adherence, even though it does not do so expressly. We find this to be the better view of the facts because of the way the boundary lines of the school district divide residents according to religious affiliation, under the terms of an unusual and special legislative Act.It is undisputed that those who negotiated the village boundaries when applying the general village incorporation statute drew them so as to exclude all but Satmars, and that the New York Legislature was well aware that the village remained exclusively Satmar in 1989 when it adopted Chap-700Opinion of SOUTER, J.ter 748. See Brief for Petitioner in No. 93-517, p. 20; Brief for Respondents 11. The significance of this fact to the state legislature is indicated by the further fact that carving out the village school district ran counter to customary districting practices in the State. Indeed, the trend in New York is not toward dividing school districts but toward consolidating them. The thousands of small common school districts laid out in the early 19th century have been combined and recombined, first into union free school districts and then into larger central school districts, until only a tenth as many remain today. Univ. of State of N. Y. and State Education Dept., School District Reorganization, Law Pamphlet 14, pp. 8-12 (1962) (hereinafter Law Pamphlet); Woodward, N. Y. State Education Dept., Legal and Organizational History of School District Reorganization in New York State 10-11 (Aug. 1986). Most of these cover several towns, many of them cross county boundaries, and only one remains precisely coterminous with an incorporated village. Law Pamphlet, at 24. The object of the State's practice of consolidation is the creation of districts large enough to provide a comprehensive education at affordable cost, which is thought to require at least 500 pupils for a combined junior-senior high school. Univ. of State of N. Y. and State Education Dept., Master Plan for School District Reorganization in New York State 10-11 (rev. ed. 1958).3 The Kiryas Joel Village School District, in contrast, has only 13 local, full-time students in all (even including out-of-area and part-time students leaves the number under 200), and in offering only special education and remedial programs it makes no pretense to be a full-service district.The origin of the district in a special Act of the legislature, rather than the State's general laws governing school district3 The Commissioner of Education updates this Master Plan as school districts consolidate, see N. Y. Educ. Law § 314 (McKinney 1988), but has not published a superseding version.701reorganization,4 is likewise anomalous. Although the legislature has established some 20 existing school districts by special Act, all but one of these are districts in name only, having been designed to be run by private organizations serving institutionalized children. They have neither tax bases nor student populations of their own but serve children placed by other school districts or public agencies. See N. Y. Educ. Law §3601-a (Statutory Notes), §§4001 and 4005 (McKinney Supp. 1994); Law Pamphlet, at 18 ("These districts are school districts only by way of a legal fiction"). The one school district petitioners point to that was formed by special Act of the legislature to serve a whole community, as this one was, is a district formed for a new town, much larger and more heterogeneous than this village, being built on land that straddled two existing districts. See 1972 N. Y. Laws, ch. 928 (authorizing Gananda School District). Thus the Kiryas Joel Village School District is exceptional to the point of singularity, as the only district coming to our notice that the legislature carved from a single existing district to serve local residents. Clearly this district "cannot be seen as the fulfillment of [a village's] destiny as an independent governmental entity," United States v. Scotland Neck City Bd. of Ed., 407 U. S. 484, 492 (1972) (Burger, C. J., concurring in result).54 State law allows consolidation on the initiative of a district superintendent, N. Y. Educ. Law § 1504 (McKinney 1988), local voters, §§ 15101513, 1522-1524, 1902, or the Commissioner of Education, §§ 1526, 18011803-a, depending on the circumstances. It also authorizes the district superintendent to "organize a new school district," § 1504, which may allow secession from an existing district, but this general law played no part in the creation of the Kiryas Joel Village School District.5 Although not dispositive in this facial challenge, the pattern ofinterdistrict transfers, proposed and presently occurring, tends to confirm that religion rather than geography is the organizing principle for this district. Cf. United States v. Scotland Neck City Ed. of Ed., 407 U. S., at 490 (Burger, C. J., concurring in result). When Chapter 748 was passed, the702Because the district's creation ran uniquely counter to state practice, following the lines of a religious community where the customary and neutral principles would not have dictated the same result, we have good reasons to treat this district as the reflection of a religious criterion for identifying the recipients of civil authority. Not even the special needs of the children in this community can explain the legislature's unusual Act, for the State could have responded to the concerns of the Satmar parents without implicating the Establishment Clause, as we explain in some detail further on. We therefore find the legislature's Act to be substantially equivalent to defining a political subdivision and hence the qualification for its franchise by a religious test, resulting in a purposeful and forbidden "fusion of governmental and religious functions." Larkin v. Grendel's Den, 459 U. S., at 126 (internal quotation marks and citation omitted).6BThe fact that this school district was created by a special and unusual Act of the legislature also gives reason for concern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups. This is the second maladyunderstanding was that if a non-Hasidic child were to move into the village, the district would pay tuition to send the child to one of the neighboring school districts, since Kiryas Joel would have no regular education program. Although the need for such a transfer has not yet arisen, there are 20 Hasidic children with handicapping conditions who transfer into Kiryas Joel's school district from the nearby East Ramapo and MonroeWoodbury school districts.6 Because it is the unusual circumstances of this district's creation that persuade us the State has employed a religious criterion for delegating political power, this conclusion does not imply that any political subdivision that is coterminous with the boundaries of a religiously homogeneous community suffers the same constitutional infirmity. The district in these cases is distinguishable from one whose boundaries are derived according to neutral historical and geographic criteria, but whose population happens to comprise coreligionists.703the Larkin Court identified in the law before it, the absence of an "effective means of guaranteeing" that governmental power will be and has been neutrally employed. Id., at 125 (internal quotation marks and citation omitted). But whereas in Larkin it was religious groups the Court thought might exercise civic power to advance the interests of religion (or religious adherents), here the threat to neutrality occurs at an antecedent stage.The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way. The anomalously case-specific nature of the legislature's exercise of state authority in creating this district for a religious community leaves the Court without any direct way to review such state action for the purpose of safeguarding a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion. See Wallace v. Jaffree, 472 U. S., at 52-54; Epperson v. Arkansas, 393 U. S., at 104; School Dist. of Abington Township v. Schempp, 374 U. S., at 216-217. Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a generallaw,7 we have no assurance that the next similarly situated group seeking a school district of its own will receive one; unlike an administrative agency's denial of an exemption from a generally applicable law, which "would be entitled to a judicial audience," Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1461 (CADC 1989) (R. B. Ginsburg, J.), a legislature's failure to enact a special law is itself unreviewable. Nor can the historical context in these cases furnish us with any reason to suppose that the Satmars are merely one in a series of communities7This contrasts with the process by which the village of Kiryas Joel itself was created, involving, as it did, the application of a neutral state law designed to give almost any group of residents the right to incorporate. See supra, at 691.704receiving the benefit of special school district laws. Early on in the development of public education in New York, the State rejected highly localized school districts for New York City when they were promoted as a way to allow separate schooling for Roman Catholic children. R. Church & M. Sedlak, Education in the United States 162, 167-169 (1976). And in more recent history, the special Act in these cases stands alone. See supra, at 70l.The general principle that civil power must be exercised in a manner neutral to religion is one the Larkin Court recognized, although it did not discuss the specific possibility of legislative favoritism along religious lines because the statute before it delegated state authority to any religious group assembled near the premises of an applicant for a liquor license, see 459 U. S., at 120-121, n. 3, as well as to a further category of institutions not identified by religion. But the principle is well grounded in our case law, as we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges. In Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 673 (1970), for example, the Court sustained a property tax exemption for religious properties in part because the State had "not singled out one particular church or religious group or even churches as such," but had exempted "a broad class of property owned by nonprofit, quasi-public corporations." Accord, id., at 696-697 (opinion of Harlan, J.). And Bowen v. Kendrick, 487 U. S. 589, 608 (1988), upheld a statute enlisting a "wide spectrum of organizations" in addressing adolescent sexuality because the law was "neutral with respect to the grantee's status as a sectarian or purely secular institution."8 See also Texas Monthly, Inc. v. Bullock, 489 U. S.8 The Court used "sectarian" to refer to organizations akin to this school district in that they were operated in a secular manner but had a religious affiliation; it recognized that government aid may not flow to an institution "'in which religion is so pervasive that a substantial portion of its nmc-7051 (1989) (striking down sales tax exemption exclusively for religious publications); id., at 14-15 (plurality opinion); id., at 27-28 (BLACKMUN, J., concurring in judgment); Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 711 (1985) (O'CONNOR, J., concurring in judgment) (statute impermissibly "singles out Sabbath observers for special ... protection without according similar accommodation to ethical and religious beliefs and practices of other private employees"); cf. Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 492 (1986) (Powell, J., concurring). Here the benefit flows only to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole, see Larson v. Valente, 456 U. S. 228, 244-246 (1982), and we are forced to conclude that the State of New York has violated the Establishment Clause.CIn finding that Chapter 748 violates the requirement of governmental neutrality by extending the benefit of a special franchise, we do not deny that the Constitution allows the State to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is "ample room under the Establishment Clause for 'benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference,'" Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 334 (1987) (quoting Walz v. Tax Comm'n, supra, at 673); "government may (and sometimes must) accommodate religious practices and ... may do so without violating the Establishmenttions are subsumed in the religious mission,'" 487 U. S., at 610 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)).706Clause." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 144-145 (1987). The fact that Chapter 748 facilitates the practice of religion is not what renders it an unconstitutional establishment. Cf. Lee v. Weisman, 505 U. S. 577, 627 (1992) (SOUTER, J., concurring) ("That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account"); School Dist. of Abington Township v. Schempp, 374 U. S., at 299 (Brennan, J., concurring) ("[H]ostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion").But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars' religiously grounded preferences 9 that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference, see Corporation of Presiding Bishop v. Amos, supra, at 336-337 (government may allow religious organizations to favor their own adherents in hiring, even for secular employment); Zorach v. Clauson, 343 U. S. 306 (1952) (government may allow public schools to release students during the schoolday to receive off-site religious education), but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners' proposed accommodation singles out a particular religious sect for special treatment,10 and whatever the limits of permissible legislative accommodations may be, compare9The Board of Education of the Kiryas Joel Village School District explains that the Satmars prefer to live together "to facilitate individual religious observance and maintain social, cultural and religious values," but that it is not '''against their religion' to interact with others." Brief for Petitioner in No. 93-517, p. 4, n. 1.10 In this respect, it goes beyond even Larkin, transferring political authority to a single religious group rather than to any church or school.707Texas Monthly, Inc. v. Bullock, supra (striking down law exempting only religious publications from taxation), with Corporation of Presiding Bishop v. Amos, supra (upholding law exempting religious employers from Title VII), it is clear that neutrality as among religions must be honored. See Larson v. Valente, supra, at 244-246.This conclusion does not, however, bring the Satmar parents, the Monroe-Woodbury school district, or the State of N ew York to the end of the road in seeking ways to respond to the parents' concerns. Just as the Court in Larkin observed that the State's interest in protecting religious meeting places could be "readily accomplished by other means," 459 U. S., at 124, there are several alternatives here for providing bilingual and bicultural special education to Satmar children. Such services can perfectly well be offered to village children through the Monroe-Woodbury Central School District. Since the Satmars do not claim that separatism is religiously mandated, their children may receive bilingual and bicultural instruction at a public school already run by the Monroe-Woodbury district. Or if the educationally appropriate offering by Monroe-Woodbury should turn out to be a separate program of bilingual and bicultural education at a neutral site near one of the village's parochial schools, this Court has already made it clear that no Establishment Clause difficulty would inhere in such a scheme, administered in accordance with neutral principles that would not necessarily confine special treatment to Satmars. See Wolman v. Walter, 433 U. S., at 247-248.To be sure, the parties disagree on whether the services Monroe-Woodbury actually provided in the late 1980's were appropriately tailored to the needs of Satmar children, but this dispute is of only limited relevance to the question whether such services could have been provided, had adjustments been made. As we understand New York law, parents who are dissatisfied with their handicapped child's program have recourse through administrative review pro-708ceedings (a process that appears not to have run its course prior to resort to Chapter 748, see Board of Ed. of MonroeWoodbury Central School Dist. v. Wieder, 72 N. Y. 2d, at 180, 527 N. E. 2d, at 770), and if the New York Legislature should remain dissatisfied with the responsiveness of the local school district, it could certainly enact general legislation tightening the mandate to school districts on matters of special education or bilingual and bicultural offerings.IIIJustice Cardozo once cast the dissenter as "the gladiator making a last stand against the lions." B. Cardozo, Law and Literature 34 (1931). JUSTICE SCALIA'S dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion. Cf. post, at 735-736. Unlike the States of Utah and New Mexico (which were laid out according to traditional political methodologies taking account of lines of latitude and longitude and topographical features, see U. S. Dept. of Interior, F. Van Zandt, Boundaries of the United States and the Several States 250-257 (Geological Survey Bulletin 1212, 1966)), the reference line chosen for the Kiryas Joel Village School District was one purposely drawn to separate Satmars from non-Satmars. Nor do we impugn the motives of the New York Legislature, cf. post, at 737-740, which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community, as such, see App. 19-20 (Assembly sponsor thrice describes the Act's beneficiaries as the "Hasidic" children or community), rather than all groups similarly interested in separate schooling. The dissent protests it is novel to insist" 'up front' " that a statute not tailor its benefits to apply only to one religious group, post, at 747748, but if this were so, Texas Monthly, Inc., would have709turned out differently, see 489 U. S., at 14-15 (opinion of Brennan, J.); id., at 28 (BLACKMUN, J., concurring in judgment), and language in Walz v. Tax Comm'n of New York City, 397 U. S., at 673, and Bowen v. Kendrick, 487 U. S., at 608, purporting to rely on the breadth of the statutory schemes would have been mere surplusage. Indeed, under the dissent's theory, if New York were to pass a law providing school buses only for children attending Christian day schools, we would be constrained to uphold the statute against Establishment Clause attack until faced by a request from a non-Christian family for equal treatment under the patently unequal law. Cf. Everson v. Board of Ed. of Ewing, 330 U. S., at 17 (upholding school bus service provided all pupils). And to end on the point with which JusTICE SCALIA begins, the license he takes in suggesting that the Court holds the Satmar sect to be New York's established church, see post, at 732, is only one symptom of his inability to accept the fact that this Court has long held that the First Amendment reaches more than classic, 18thcentury establishments. See Torcaso v. Watkins, 367 U. S., at 492-495.Our job, of course, would be easier if the dissent's position had prevailed with the Framers and with this Court over the years. An Establishment Clause diminished to the dimensions acceptable to JUSTICE SCALIA could be enforced by a few simple rules, and our docket would never see cases requiring the application of a principle like neutrality toward religion as well as among religious sects. But that would be as blind to history as to precedent, and the difference between JUSTICE SCALIA and the Court accordingly turns on the Court's recognition that the Establishment Clause does comprehend such a principle and obligates courts to exercise the judgment necessary to apply it.In these cases we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said "ranks at the very apex of710the function of a State," Wisconsin v. Yoder, 406 U. S. 205, 213 (1972), to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment. The judgment of the Court of Appeals of the State of New York is accordinglyAffirmed

OCTOBER TERM, 1993SyllabusBOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMETCERTIORARI TO THE COURT OF APPEALS OF NEW YORK No. 93-517. Argued March 30, 1994-Decided June 27,1994*The New York village of Kiryas Joel is a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. Its incorporators intentionally drew its boundaries under the State's general village incorporation law to exclude all but Satmars. The village fell within the Monroe-Woodbury Central School District until a special state statute, 1989 N. Y. Laws, ch. 748, carved out a separate district that follows village lines. Although the statute gives a locally elected school board plenary authority over primary and secondary education in the village, the board currently runs only a special education program for handicapped children; other village children attend private religious schools, which do not offer special educational services. Shortly before the new district began operations, respondents and others brought this action claiming, inter alia, that Chapter 748 violates the Establishment Clause of the First Amendment. The state trial court granted summary judgment for respondents, and both the intermediate appellate court and the New York Court of Appeals affirmed, ruling that Chapter 748's primary effect was impermissibly to advance religion.Held: The judgment is affirmed.81 N. Y. 2d 518, 618 N. E. 2d 94, affirmed.JUSTICE SOUTER delivered the opinion of the Court with respect to Parts II-B, II-C, and III, concluding that Chapter 748 violates the Establishment Clause. Pp. 702-710.(a) Because the Kiryas Joel Village School District did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law, there is no assurance that the next religious community seeking a school district of its own will receive one. The anomalously case-specific creation of this district for a religious community leaves the Court without any way to review such state action for the purpose of safeguarding the principle that government should not prefer one religion to another, or religion to irreligion. Nor can the historical context furnish any reason to suppose that the Sat-*Together with No. 93-527, Board of Education of Monroe-Woodbury Central School District v. Grumet et al., and No. 93-539, Attorney General of New York v. Grumet et al., also on certiorari to the same court.688Syllabusmars are merely one in a series of similarly benefited communities, the special Act in these cases being entirely at odds with New York's historical trend. Pp. 702-705.(b) Although the Constitution allows the State to accommodate religious needs by alleviating special burdens, Chapter 748 crosses the line from permissible accommodation to impermissible establishment. There are, however, several alternatives for providing bilingual and bicultural special education to Satmar children that do not implicate the Establishment Clause. The Monroe-Woodbury school district could offer an educationally appropriate program at one of its public schools or at a neutral site near one of the village's parochial schools, and if the state legislature should remain dissatisfied with the local district's responsiveness, it could enact general legislation tightening the mandate to school districts on matters of special education or bilingual and bicultural offerings. Pp. 705-708.JUSTICE SOUTER, joined by JUSTICE BLACKMUN, JUSTICE STEVENS, and JUSTICE GINSBURG, concluded in Part II-A that by delegating the State's discretionary authority over public schools to a group defined by its common religion, Chapter 748 brings about an impermissible "fusion" of governmental and religious functions. See Larkin v. Grendel's Den, Inc., 459 U. S. 116, 126, 127. That a religious criterion was the defining test is shown by the legislature's undisputed knowledge that the village was exclusively Satmar when the statute was adopted; by the fact that the creation of such a small and specialized school district ran uniquely counter to customary districting practices in the State; and by the district's origin in a special and unusual legislative Act rather than the State's general laws for school district organization. The result is that the legislature has delegated civic authority on the basis of religious belief rather than on neutral principles. Pp. 696-702.JUSTICE KENNEDY, agreeing that the Kiryas Joel Village School District violates the Establishment Clause, concluded that the school district's real vice is that New York created it by drawing political boundaries on the basis of religion. See, e. g., Shaw v. Reno, 509 U. S. 630, 648-649. There is more than a fine line between the voluntary association that leads to a political community comprised of people who share a common religious faith, and the forced separation that occurs when the government draws explicit political boundaries on the basis of peoples' faith. In creating the district in question, New York crossed that line. Pp. 728-730.SOUTER, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, II-C, and III, in which BLACKMUN, STEVENS, O'CONNOR, and GINSBURG, JJ., joined, and an opin-689Full Text of Opinion

1955_281

MR. JUSTICE CLARK delivered the opinion of the Court.The question for decision in this case is whether the president and principal negotiator of a labor union is a "representative" of employees within the meaning of § 302(b) of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C. § 141. That section makes it unlawful for "any representative of any employees" to receive money or other thing of value from the employer. The District Court, 128 F. Supp. 128, held that respondent Joseph P. Ryan was a "representative" within the meaning of § 302(b), but the Court of Appeals for the Second Circuit reversed, Judge Hand dissenting. 225 F.2d 417. Because of the importance of this question in the administration of the Act, we granted certiorari, 350 U.S. 860.Ryan was president of The International Longshoremen's Association (ILA) during the years 1950 and 1951. The ILA and its affiliated groups were the recognized collective bargaining agents for longshore labor in the Port of New York, and bargained through a wage scale committee of which Ryan was a member. He signed the agreements negotiated during that period. J. Arthur Kennedy & Son, Inc., and Daniels & Kennedy, Inc., were concerns engaged in stevedoring operations; their employees were members of the ILA, and they were bound by the agreements negotiated with that union by the New York Shipping Association. The District Court found that James C. Kennedy, president of both Kennedy companies, had given Ryan $1,000 in December of each year from 1946 through 1951, and $500 in April, 1951. These findings are not disputed. Ryan was indicted under § 302(b) for accepting the one 1950 and two 1951 payments. [Footnote 1] He was found guilty and sentenced to Page 350 U. S. 301 six months' imprisonment on each of the three counts, the sentences to run concurrently, and fined $2,500.The Court of Appeals reversed solely on its interpretation of the term "representative" in § 302(b) of the LMRA. It concluded that the term had a technical meaning in labor legislation and was limited to "the exclusive bargaining representative" of the employees, which, in this case, was the ILA itself. Since the section applied only to the "representative," payments to Ryan individually were not covered, even though, as president of the representative union, he was a member of its wage scale committee and signed all negotiated agreements. We do not decide whether any official of a union is ex officio a representative of employees under § 302. We believe, however, that respondent's relationship brings him within that term.The LMRA provides that the term "representative" shall have "the same meaning as when used in the National Labor Relations Act as amended by this Act." § 501(3). The pertinent definition appears in § 2(4) of the NLRA: "The term representatives' includes any individual or labor organization." 49 Stat. 449, 450, 29 U.S.C. §§ 151, 152(4).The Board has held that employees may choose to elect an individual as exclusive or sole bargaining representative. [Footnote 2] The Court of Appeals, laying much stress on these holdings, assumes that the possibility of such a one-man exclusive bargaining representative, though extremely rare, [Footnote 3] is the only reason for the inclusion of the word "individual" Page 350 U. S. 302 in this definition. We cannot accept such an anomalous view. It is obvious that any labor organization, even when serving as an exclusive bargaining representative, can negotiate, speak, and act only through individuals. All collective bargaining is conducted by individuals who represent labor and management. Many limitations or prohibitions upon labor organization action can be effective only if there are corresponding limitations or prohibitions on the individuals who act for the labor organization. Congress, we believe, placed the identical limitations on both individuals and organizations by terming both "representatives" of employees in § 2(4). We agree with Judge Hand that, in using the term "representative," Congress intended that it include any person authorized by the employees to act for them in dealings with their employers.Considering the precise words of the statute -- "any representative of any employees" -- it is plain that their literal meaning strongly suggests that they were meant to include someone in the position of respondent Ryan who represented employees both as a union president and principal negotiator. And this interpretation is strengthened by a consideration of the full text of § 302. [Footnote 4] Paragraphs Page 350 U. S. 303 (a) and (b) of § 302 make it unlawful for any employer to offer, or any representative to accept, money or other thing of value. Paragraph (c) lists five exceptions to these broad prohibitions. The first exempts payments as compensation for services "to any representative who is an employee" of the employer. Thus, it is clear that § 302 anticipates that a "representative" may be an individual. Of the remaining four exceptions, one could Page 350 U. S. 304 apply only to unions but each of the other three could apply as readily to individuals. [Footnote 5]Further, a narrow reading of the term "representative" would substantially defeat the congressional purpose. In 1946, Congress was disturbed by the demands of certain unions that the employers contribute to "welfare funds" which were in the sole control of the union or its officers and could be used as the individual officers saw fit. The United Mine Workers' demand that mine Page 350 U. S. 305 operators create a welfare fund for the union by contributing 10 cents for each ton of coal mined, caused the Congress to act. The Case Bill, N.R.4908, 79th Cong., 2d Sess., which regulated welfare funds in a manner similar to § 302, was enacted in 1949, but was vetoed by the President. The following year, the Taft-Hartley Act containing § 302 was passed over another veto. But, if "representative" means only the "exclusive bargaining representative," the explicit limitations on welfare funds in § 302(c)(5) may be easily evaded. Payments made directly to union officials, or to other individuals as trustees, would apparently be excluded from § 302. Thus, a narrow construction would frustrate the primary intent of Congress.Nor can it be contended that, in this legislation, Congress was aiming solely at the welfare fund problem. Such a suggestion is supported neither by the legislative history nor the structure of the section. The arrangement of § 302 is such that the only reference to welfare funds is contained in § 302(c)(5). If Congress intended to deal with that problem alone, it could have done so directly, without writing a broad prohibition in subsections (a) and (b) and five specific exceptions thereto in subsection (c), only the last of which covers welfare funds. As the statute reads, it appears to be a criminal provision, malum prohibitum, which outlaws all payments, with stated exceptions, between employer and representative.The legislative history supports these conclusions. As passed by the House of Representatives, the Hartley Bill forbade employer contributions to union welfare funds, and made it an unfair labor practice to give favors to "any person in a position of trust in a labor organization. . . ." H.R.3020, 80th Cong., 1st Sess., § 8(a)(2). The scope of this bill was enlarged when it reached the Senate to include, in the words of Senator Taft, a "case Page 350 U. S. 306 where the union representative is shaking down the employer. . . ." 93 Cong.Rec. 4746. The resulting Senate amendment made it criminal both for the employer and the "representative" of employees to engage in such practices.It is not disputed that the plain language of the Senate version of the bill brought within its coverage any individual who dealt with an employer on behalf of two or more of the latter's employees concerning employment matters. As passed by the Senate, § 302 contained a special definition of the term "representative." [Footnote 6] The Joint Conference Committee substituted for it the definition of that term in the NLRA, as amended. § 501(3). This substitution was among those described by the Joint Conference Committee Report as "minor clarifying changes." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. at 67.We cannot read this history as supporting the conclusion that the scope of § 302 was limited by the Joint Conference to include only the "exclusive bargaining representative" of employees. Such a change would have drastically reduced the scope of the section, and could hardly be described as a "minor clarifying" change. Certainly, in the face of this legislative history, we should not reduce the legislation to a practical nullity.It is insisted that this interpretation clashes with the use of the term "representative" in various sections of the NLRA. In the majority of the examples given, the scope of the term is made clear by other words in the provisions Page 350 U. S. 307 themselves. [Footnote 7] But further, the provision in the LMRA that "representative" shall have its NLRA meaning is no more applicable to § 302 than to any other section of the LMRA, and, in several other sections of that Act, it is patent that "representative" cannot be construed to include only the exclusive bargaining representative. For example, § 204(a) refers to "employers and employees and their representatives," and § 211(a) refers to "interested representatives of employers, employees, and the general public." There are other examples, but these are sufficient. If the severely restricted construction contended for the word "representative" is inapplicable to one section of the LMRA, there is no compulsion to apply it to any other section.We conclude, therefore, that § 302 prohibits payments by employers to individuals who represent employees in their relations with the employers. The judgment is reversedReversed

U.S. Supreme CourtUnited States v. Ryan, 350 U.S. 299 (1956)United States v. RyanNo. 281Argued January 19, 1956Decided February 27, 1956350 U.S. 299SyllabusWithin the meaning of § 302(b) of the Labor Management Relations Act, which makes it unlawful for "any representative of any employees" to receive money or other thing of value from the employer, an individual who was the president and principal negotiator of a labor union is a "representative" of employees. Pp. 350 U. S. 300-307.(a) The term "representative" in § 302(b) is not limited to "the exclusive bargaining representative" of the employees, but includes any person authorized by the employees to act for them in dealings with their employers. Pp. 350 U. S. 301-307(b) A narrow reading of the term "representative" would substantially defeat the purpose of the Act. Pp. 350 U. S. 304-305.(c) In this legislation, Congress was not aiming solely at the welfare fund problem. P. 350 U. S. 305.(d) The legislative history supports the construction here given § 302(b). Pp. 350 U. S. 305-306.(e) The provision in the Labor Management Relations Act that the term "representative" shall have the meaning that it has in the National Labor Relations Act does not require that the term, as used in § 302, be construed to include only the exclusive bargaining representative. Pp. 350 U. S. 306-307.225 F.2d 417 reversed and remanded. Page 350 U. S. 300

1984_83-1660

JUSTICE STEVENS delivered the opinion of the Court.In November, and again in December, 1981, the Massachusetts Department of Public Welfare mailed a written notice to over 16,000 recipients advising them that a recent change in federal law might result in either a reduction or a termination of their food stamp benefits. The notice did not purport to explain the precise impact of the change on each individual recipient. The question this case presents is whether that notice violated any federal statute or regulation, or the Due Process Clause of the Fourteenth Amendment. Unlike the District Court and the Court of Appeals, we conclude that there was no violation.In an attempt to "permit low-income households to obtain a more nutritious diet through normal channels of trade," [Footnote 1] Congress created a federally subsidized food stamp program. The Secretary of Agriculture prescribes the standards for eligibility for food stamps, [Footnote 2] but state agencies are authorized to make individual eligibility determinations and to distribute the food stamps to eligible households, which may use them to purchase food from approved, retail food stores. [Footnote 3] The eligibility of an individual household, and the amount of its food Page 472 U. S. 118 stamp allotment, are based on several factors, including the size of the household and its income. [Footnote 4] Certifications of eligibility expire periodically, and are renewed on the basis of applications submitted by the households. [Footnote 5]Prior to 1981, federal law provided that 20 percent of the household's earned income should be deducted, or disregarded, in computing eligibility. [Footnote 6] The purpose of the earned income disregard was to maintain the recipients' incentive to earn and to report income. In 1981, Congress amended the Food Stamp Act to reduce this deduction from 20 percent to 18 percent. [Footnote 7] That amendment had no effect on households with no income or with extremely low income, but caused a reduction of benefits in varying amounts, or a complete termination of benefits, for families whose income placed them close to the border between eligibility and ineligibility. [Footnote 8]On September 4, 1981, the Department of Agriculture issued regulations providing for the implementation of the change in the earned income disregard and directing the States to provide notice to food stamp recipients. [Footnote 9] That directive indicated that the form of the notice might comply with the regulations dealing with so-called "mass changes," [Footnote 10] Page 472 U. S. 119 rather than with the regulations dealing with individual "adverse actions." [Footnote 11]In November, the Massachusetts Department of Public Welfare (Department) mailed a brief, ambiguously dated notice to all food stamp recipients with earned income advising them that the earned income deduction had been lowered from 20 percent to 18 percent and that the change would result in either a reduction or a termination of their benefits. The notice was printed on a card, in English on one side and Spanish on the other. The notice stated that the recipient had a right to request a hearing "if you disagree with this action," and that benefits would be reinstated if a hearing was requested within 10 days of the notice. [Footnote 12]On December 10, 1981, petitioners in No. 83-6381 commenced this action on behalf of all Massachusetts households Page 472 U. S. 120 that had received the notice. They alleged that the notice was inadequate as a matter of law, and moved for a temporary restraining order. On December 16, 1981, after certifying the action as a class action and after commenting that the "notice was deficient in that it failed to provide recipients with a date to determine the time in which they could appeal," the District Court enjoined the Department from reducing or terminating any benefits on the basis of that notice. [Footnote 13]The Department, in compliance with the District Court's order, mailed supplemental benefits for the month of December to each of the 16,640 class members. It then sent out a second notice, in English and Spanish versions, dated December 26, which stated in part:"* * * IMPORTANT NOTICE -- READ CAREFULLY * * *""RECENT CHANGES IN THE FOOD STAMP PROGRAM HAVE BEEN MADE IN ACCORDANCE WITH 1981 FEDERAL LAW. UNDER THIS LAW, THE EARNED INCOME DEDUCTION FOR FOOD STAMP BENEFITS HAS BEEN LOWERED FROM 20 TO 18 PERCENT. THIS REDUCTION MEANS THAT A HIGHER PORTION OF YOUR HOUSEHOLD'S EARNED INCOME WILL BE COUNTED IN DETERMINING YOUR ELIGIBILITY AND BENEFIT AMOUNT FOR FOOD STAMPS. AS A RESULT OF THIS FEDERAL CHANGE, YOUR BENEFITS WILL EITHER BE REDUCED IF YOU REMAIN ELIGIBLE OR YOUR BENEFITS WILL BE TERMINATED. (FOOD STAMP MANUAL CITATION: 106 CMR:364.400).""YOUR RIGHT TO A FAIR HEARING:" "YOU HAVE THE RIGHT TO REQUEST A FAIR HEARING IF YOU DISAGREE WITH THIS ACTION. Page 472 U. S. 121 IF YOU ARE REQUESTING A HEARING, YOUR FOOD STAMP BENEFITS WILL BE REINSTATED. . . . IF YOU HAVE QUESTIONS CONCERNING THE CORRECTNESS OF YOUR BENEFITS COMPUTATION OR THE FAIR HEARING PROCESS, CONTACT YOUR LOCAL WELFARE OFFICE. YOU MAY FILE AN APPEAL AT ANY TIME IF YOU FEEL THAT YOU ARE NOT RECEIVING THE CORRECT AMOUNT OF FOOD STAMPS. [Footnote 14]"Petitioners filed a supplemental complaint attacking the adequacy of this notice, and again moved for a preliminary injunction. In October, 1982, the District Court consolidated the hearing on that motion with the trial on the merits and again ruled in petitioners' favor. The District Court found that there was a significant risk of error in the administration of the food stamp program, particularly with the implementation of the change in the earned income disregard, and that the failure to provide each recipient with an adequate notice increased the risk of error. In essence, the District Court concluded that the December notice was defective because it did not advise each household of the precise change in its benefits, or with the information necessary to enable the recipient to calculate the correct change; because it did not tell recipients whether their benefits were being reduced or terminated; and because the reading level and format of the notice made it difficult to comprehend. [Footnote 15] Based on the Page 472 U. S. 122 premise that the statutorily mandated reduction or termination of benefits was a deprivation of property subject to the full protection of the Fourteenth Amendment, [Footnote 16] the court held that the Due Process Clause had been violated. [Footnote 17]As a remedy, the District Court ordered the Department"to return forthwith to each and every household in the plaintiff class all food stamp benefits lost as a result of the action taken pursuant to the December notice"between January 1, 1981, and the date the household received adequate notice, had its benefits terminated for a reason unrelated to the change in the earned income disregard, or had its file recertified. [Footnote 18] The District Court also ordered that all future food stamp notices issued by the Department contain various data, including the old and new benefit amounts, and that the Department issue regulations, subject to court approval, governing the form of future food stamp notices. [Footnote 19]The United States Court of Appeals for the First Circuit agreed with the District Court's constitutional holding, indicated Page 472 U. S. 123 its belief that Congress could not have "intended a constitutionally deficient notice to satisfy the statutory notice requirement," and thus affirmed the District Court's holding that "the December notice failed to satisfy the notice requirements of 7 U.S.C. § 2020(e)(10) and 7 CFR § 273.12(e)(2) (ii)." Foggs v. Block, 722 F.2d 933, 939-940 (1983). [Footnote 20] The Court of Appeals held, however, that the District Court had erred in ordering a reinstatement of benefits and in specifying the form of future notices. [Footnote 21]Petitioners in No. 83-6381 sought review of the Court of Appeals' modification of the District Court's remedy, and the Department, in No. 83-1660, cross-petitioned for a writ of certiorari seeking review of the holding on liability. We granted both the petition and the cross-petition, and invited the Solicitor General to participate in the argument. 467 U.S. 1250 (1984). We conclude that the notice was lawful, and therefore have no occasion to discuss the remedy issue that the petition in No. 83-6381 presents. Because there would be no need to decide the constitutional question if we found a violation of either the statute or the regulations, [Footnote 22] we first consider the statutory issue.IThe only reference in the Food Stamp Act to a notice is contained in § 2020(e), which outlines the requirements of a state plan of operation. Subsection (10) of that section provides that a state plan must grant a fair hearing, and a prompt determination, to any household that is aggrieved by Page 472 U. S. 124 the action of a state agency. A proviso to that subsection states that any household "which timely requests such a fair hearing after receiving individual notice of agency action reducing or terminating its benefits" shall continue to receive the same level of benefits until the hearing is completed. [Footnote 23]The language of the proviso does not itself command that any notice be given, but it does indicate that Congress assumed that individual notice would be an element of the fair hearing requirement. Thus, whenever a household is entitled to a fair hearing, it is appropriate to read the statute as imposing a requirement of individual notice that would enable the household to request such a hearing. The hearing requirement, and the incidental reference to "individual notice," however, are, by their terms, applicable only to "agency action reducing or terminating" a household's benefits. Therefore, it seems unlikely that Congress contemplated individual hearings for every household affected by a general change in the law.The legislative history of § 2020(e)(10) sheds light on its meaning. As originally enacted in 1964, the Food Stamp Act contained no fair hearing requirement. See 78 Stat. 703-709. In 1971, however, in response to this Court's decision Page 472 U. S. 125 in Goldberg v. Kelly, 397 U. S. 254 (1970), Congress amended the Act to include a fair hearing provision, [Footnote 24] and in the Food Stamp Act of 1977, § 2020(e)(10) was enacted in its present form. [Footnote 25] The legislative history of the Food Stamp Act of 1977 contains a description of the then-existing regulations, which were promulgated after the 1971 amendment and which drew a distinction between the requirement of notice in advance of an "adverse action" based on the particular facts of an individual case, on the one hand, and the absence of any requirement of individual notice of a "mass change," on the other. [Footnote 26] That history contains no suggestion that Congress intended to eliminate that distinction; to the contrary, Congress expressly recognized during the period leading to the enactment of the Food Stamp Act of 1977 the distinction between the regulatory requirement regarding notice in the case of an adverse action and the lack of such a requirement in the case of a mass change. [Footnote 27] Read against this background, the relevant statutory language -- which does not Page 472 U. S. 126 itself mandate any notice at all. but merely assumes that a request for a hearing will be preceded by "individual notice of agency action" -- cannot fairly be construed as a command to give notice of a general change in the law. [Footnote 28]Nor can we find any basis for concluding that the December notice failed to comply with the applicable regulations. Title 7 CFR § 273.12(e)(2)(ii) (1984) provides:"(ii) A notice of adverse action is not required when a household's food stamp benefits are reduced or terminated as a result of a mass change in the public assistance grant. However, State agencies shall send individual notices to households to inform them of the change. If a household requests a fair hearing, benefits shall be continued at the former level only if the issue being appealed is that food stamp eligibility or benefits were improperly computed."This regulation reflects the familiar distinction between an individual adverse action and a mass change. The statement that a notice of adverse action is not required when a change of benefits results from a mass change surely implies that individual computations are not required in such cases. The two requirements that are imposed when a mass change occurs are: (1) that "individual" notice be sent and (2) that it "inform them of the change." In this case, a separate individual notice was sent to each individual household, and it did "inform them of the change" in the program that Congress had mandated. Since the word "change" in the regulation Page 472 U. S. 127 plainly refers to the "mass change," the notice complied with the regulation. [Footnote 29]IISince the notice of the change in the earned income disregard was sufficient under the statute and under the regulations, we must consider petitioners' claim that they had a constitutional right to advance notice of the amendment's specific impact on their entitlement to food stamps before the statutory change could be implemented by reducing or terminating their benefits. They argue that an individualized calculation of the new benefit was necessary in order to avoid the risk of an erroneous reduction or termination.The record in this case indicates that members of petitioners' class had their benefits reduced or terminated for either or both of two reasons: (1) because Congress reduced the earned income disregard from 20 percent to 18 percent; or (2) because inadvertent errors were made in calculating benefits. These inadvertent errors, however, did not necessarily result from the statutory change, but rather may have been attributable to a variety of factors that can occur in the administration of any large welfare program. [Footnote 30] For example, Page 472 U. S. 128 each of the named petitioners, presumably representative of the class, see Fed.Rule Civ.Proc. 23(a), appealed a reduction in benefits. None identified an error resulting from the legislative decision to change the earned income disregard. But even if it is assumed that the mass change increased the risk of erroneous reductions in benefits, that assumption does not support the claim that the actual notice used in this case was inadequate. For that notice plainly informed each household of the opportunity to request a fair hearing and the right to have its benefit level frozen if a hearing was requested. As the testimony of the class representatives indicates, every class member who contacted the Department had his or her benefit level frozen, and received a fair hearing, before any loss of benefit occurred. Thus, the Department's procedures provided adequate protection against any deprivation based on an unintended mistake. To determine whether the Constitution required a more detailed notice of the mass change, we therefore put the miscellaneous errors to one side and confine our attention to the reductions attributable to the statutory change.Food-stamp benefits, like the welfare benefits at issue in Goldberg v. Kelly, 397 U. S. 254 (1970), "are a matter of statutory entitlement for persons qualified to receive them." Id. at 397 U. S. 262 (footnote omitted). Such entitlements are appropriately treated as a form of "property" protected by the Due Process Clause; accordingly, the procedures that are employed in determining whether an individual may continue to participate in the statutory program must comply with the commands of the Constitution. Id. at 262-263. [Footnote 31] Page 472 U. S. 129This case, however, does not concern the procedural fairness of individual eligibility determinations. Rather, it involves a legislatively mandated substantive change in the scope of the entire program. Such a change must, of course, comply with the substantive limitations on the power of Congress, but there is no suggestion in this case that the amendment at issue violated any such constraint. Thus, it must be assumed that Congress had plenary power to define the scope and the duration of the entitlement to food stamp benefits, and to increase, to decrease, or to terminate those benefits based on its appraisal of the relative importance of the recipients' needs and the resources available to fund the program. The procedural component of the Due Process Clause does not "impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits." Richardson v. Belcher, 404 U. S. 78, 404 U. S. 81 (1971).The congressional decision to lower the earned income deduction from 20 percent to 18 percent gave many food stamp households a less valuable entitlement in 1982 than they had received in 1981. But the 1981 entitlement did not include any right to have the program continue indefinitely at the same level, or to phrase it another way, did not include any right to the maintenance of the same level of property entitlement. Before the statutory change became effective, the existing property entitlement did not qualify the legislature's power to substitute a different, less valuable entitlement at a later date. As we have frequently noted:"[A] welfare recipient is not deprived of due process when the legislature Page 472 U. S. 130 adjusts benefit levels. . . . [T]he legislative determination provides all the process that is due. [Footnote 32]"The participants in the food stamp program had no greater right to advance notice of the legislative change -- in this case, the decision to change the earned income disregard level -- than did any other voters. [Footnote 33] They do not claim that there was any defect in the legislative process. Because the substantive reduction in the level of petitioners' benefits was the direct consequence of the statutory amendment, they have no basis for challenging the procedure that caused them to receive a different, less valuable property interest after the amendment became effective.The claim that petitioners had a constitutional right to better notice of the consequences of the statutory amendment is without merit. All citizens are presumptively charged with knowledge of the law, see, e.g., North Laramie Land Co. v. Hoffman, 268 U. S. 276, 268 U. S. 283 (1925). Arguably that presumption may be overcome in cases in which the statute does not allow a sufficient "grace period" to provide the persons affected by a change in the law with an adequate opportunity to become familiar with their obligations under it. See Texaco, Inc. v. Short, 454 U. S. 516, 454 U. S. 532 (1982). In this case, however, not only was there a grace period of over 90 Page 472 U. S. 131 days before the amendment became effective, but in addition, every person affected by the change was given individual notice of the substance of the amendment. [Footnote 34]As a matter of constitutional law, there can be no doubt concerning the sufficiency of the notice describing the effect of the amendment in general terms. Surely Congress can presume that such a notice relative to a matter as important as a change in a household's food stamp allotment would prompt an appropriate inquiry if it is not fully understood. The entire structure of our democratic government rests on the premise that the individual citizen is capable of informing himself about the particular policies that affect his destiny. To contend that this notice was constitutionally insufficient is to reject that premise. [Footnote 35]The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtAtkins v. Parker, 472 U.S. 115 (1985)Atkins v. ParkerNo. 83-1660Argued November 27, 1984Decided June 4, 1985*472 U.S. 115SyllabusIn 1981, Congress amended the Food Stamp Act to reduce from 20 percent to 18 percent the earned income disregard used in computing eligibility for food stamps. Thereafter, the Massachusetts Department of Public Welfare (Department) mailed a notice to all food stamp recipients in the State with earned income advising them that the reduction in the earned income disregard might result in either a reduction or termination of their benefits, that they had a right to request a hearing, and that their benefits would be reinstated if a hearing was requested within 10 days of the notice. Petitioners in No. 83-6381 (hereafter petitioners), recipients of the notice, brought a class action in Federal District Court, alleging that the notice was inadequate and seeking injunctive relief. After the court issued a temporary injunction, the Department sent a second notice similar to, but somewhat more extensive than, the first notice. Petitioners also attacked the adequacy of this notice. The court again ruled in petitioners' favor and held that the notice violated the Due Process Clause of the Fourteenth Amendment. The Court of Appeals agreed.Held:1. The second notice complied with the statute and regulations. The relevant language of 7 U.S.C. § 2020(e)(10) -- which does not itself mandate any notice at all, but merely assumes that a hearing request by a household aggrieved by a state agency's action will be preceded by "individual notice of agency action" -- cannot be fairly construed as a command to give notice of a general change in the law. The legislative history does not suggest that Congress intended to eliminate the distinction between requiring advance notice of an "adverse action" based on the particular facts of an individual case and the absence of any requirement of individual notice of a "mass change" in the law. And the notice in question complied with the applicable regulation requiring individual Page 472 U. S. 116 notices of a "mass change," but not an adverse action notice when benefits are reduced or terminated as a result of a "mass change." Pp. 472 U. S. 123-127.2. The second notice did not violate the Due Process Clause. Pp. 472 U. S. 127-131.(a) Even if it is assumed that the mass change increased the risk of erroneous reductions in benefits, that assumption does not support the claim that the notice was inadequate. The notice plainly informed each household of the opportunity to request a fair hearing and the right to have its benefit level frozen if a hearing was requested. Pp. 472 U. S. 127-128.(b) This case does not concern the procedural fairness of individual eligibility determinations, but rather involves a legislatively mandated substantive change in the scope of the entire food stamp program. The procedural component of the Due Process Clause does not impose a constitutional limitation on Congress' power to make such a change. A welfare recipient is not deprived of due process when Congress adjusts benefit levels; the legislative process provides all the process that is due. Here, the participants in the food stamp program had no greater right to advance notice of the change in the law than did any other voters. Because the substantive reduction in the level of petitioners' benefits was the direct result of the statutory amendment, they have no basis for challenging the procedure that caused them to receive a different, less valuable property interest after the amendment became effective. As a matter of constitutional law, there can be no doubt concerning the sufficiency of the notice describing the effect of the amendment in general terms. Pp. 472 U. S. 128-131.722 F.2d 933, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in Part I of which MARSHALL, J., joined, post, p. 472 U. S. 132. MARSHALL, J., filed a dissenting opinion, post, p. 472 U. S. 157. Page 472 U. S. 117

1966_463

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Federal Power Commission has awarded Pacific Northwest Power Company (a joint venture of four private power companies) a license to construct a hydroelectric power project at High Mountain Sheep, a site on the Snake River, a mile upstream from its confluence with the Salmon. 31 F.P.C. 247, 1051. The Court of Appeals approved the action, 123 U.S.App.D.C. 209, 358 F.2d 840, and we granted the petitions for certiorari. 385 U.S. 926, 927. Page 387 U. S. 431The primary question in the cases involves an interpretation of § 7(b) of the Federal Water Power Act of 1920, as amended by the Federal Power At, 49 Stat. 842, 16 U.S.C. § 800(b), which provides:"Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself, the Commission shall not approve any application for any project affecting such development, but shall cause to be made such examinations, surveys, reports, plans, and estimates of the cost of the proposed development as it may find necessary, and shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development."The question turns on whether § 7(b) requires a showing that licensing of a private, state, or municipal agency [Footnote 1] Page 387 U. S. 432 is a satisfactory alternative to federal development. We put the question that way because the present record is largely silent on the relative merits of federal and nonfederal development. What transpired is as follows:Both Pacific Northwest and Washington Public Power Supply System, allegedly a "municipality" under § 4(e) and under § 7(a) of the Act, [Footnote 2] filed applications for licenses on mutually exclusive sites, and they were consolidated for hearing. Before the hearing, the Commission solicited the views of the Secretary of the Interior. The Secretary urged postponement of the licensing of either project while means of protecting the salmon and other fisheries were studied. That was on March 15, 1961. But the hearings went forward, and on June 28, 1962, after the record before the Examiner was closed, but, before he rendered his decision, the Secretary wrote the Commission urging it to recommend to Congress the consideration of federal construction of High Mountain Sheep. The Commission reopened the record to allow the Secretary's letter to be incorporated and invited the parties to file supplemental briefs in response to it. On October 8, 1962, the Examiner rendered his decision, recommending that Pacific Northwest receive the license. He disposed of the Page 387 U. S. 433 issue of federal development on the ground that there"is no evidence in this record that Federal development will provide greater flood control, power benefits, fish passage, navigation or recreation, and there is substantial evidence to the contrary."The Secretary asked for leave to intervene and to file exceptions to the Examiner's decision. [Footnote 3] The Commission allowed intervention "limited to filing of exceptions to the Presiding Examiner's decision and participation in such oral argument as might subsequently be ordered."The Secretary filed exceptions and participated in oral argument. The Commission, on February 5, 1964, affirmed the Examiner, saying that it agreed with him "that the record supports no reason why federal development should be superior," observing that,"[w]hile we have extensive material before us on the position of the Secretary of the Interior, there is no evidence in the record presented by him to support his position."31 F.P.C. at 275. Page 387 U. S. 434It went on to say that it found "nothing in this record to indicate" that the public purposes of the dam (flood control, etc.) would not be served as adequately by Pacific Northwest as they would under federal development. And it added,"We agree that the Secretary (or any single operator) normally would have a superior ability to coordinate the operations of HMS with the other affected projects on the river. But there is no evidence upon which we can determine the scope or the seriousness of this matter in the context of a river system which already has a number of different project operators and an existing coordination system, i.e., the Northwest Power Pool."Id. at 276-277.The Secretary petitioned for a rehearing, asking that the record be opened to permit him to supply the evidentiary deficiencies. A rehearing, but not a reopening of the record, was granted, and the Commission shortly reaffirmed its original decision with modifications not material here.The issue of federal development has never been explored in this record. The applicants introduced no evidence addressed to that question, and the Commission denied the Secretary an opportunity to do so though his application was timely. The issue was, of course, briefed and argued, yet no factual inquiry was undertaken. Section 7(b) says"Whenever, in the judgment of the Commission, the development of any water resources for public purposes should be undertaken by the United States itself,"the Commission shall not approve other applications. Yet the Commission, by its rulings on the applications of the Secretary to intervene and to reopen, precluded it from having the informed judgment that 7(b) commands.We indicate no judgment on the merits. We do know that, on the Snake-Columbia waterway between High Page 387 U. S. 435 Mountain Sheep and the ocean, eight hydroelectric dams have been built, and another authorized. These are federal protects, and if another dam is to be built, the question whether it should be under federal auspices looms large. Timed releases of stored water at High Mountain Sheep may affect navigability; they may affect hydroelectric production of the downstream dams when the river level is too low for the generators to be operated at maximum capacity; they may affect irrigation, and they may protect salmon runs when the water downstream is too hot or insufficiently oxygenated. Federal versus private or municipal control may conceivably make a vast difference in the functioning of the vast river complex. [Footnote 4] Page 387 U. S. 436Beyond that is the question whether any dam should be constructed.As to this, the Secretary, in his letter to the Commission dated November 21, 1960, in pleading for a deferment of consideration of applications stated:"In carrying out this Department's responsibility for the protection and conservation of the vital Northwest anadromous fishery resource, and in light of the fact that the power to be available as a result of ratification of the proposed Columbia River treaty with Canada will provide needed time which can be devoted to further efforts to resolve the fishery problems presently posed by these applications, we believe that it is unnecessary at this time and for some years to come to undertake any project in this area.""You may be assured that the Fish and Wildlife Service of this Department will continue, with renewed emphasis, the engineering and research studies that must be done before we can be assured that the passage of anadromous fish can be provided for at these proposed projects."Since the cases must be remanded to the Commission, it is appropriate to refer to that aspect of the cases.Section 10(a) of the Act [Footnote 5] provides that "the project Page 387 U. S. 437 adopted" shall be such"as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway . . . and for other beneficial public uses, including recreational purposes."(Emphasis added.)The objective of protecting "recreational purposes" means more than that the reservoir created by the dam will be the best one possible or practical from a recreational viewpoint. There are already eight lower dams on this Columbia River system and a ninth one authorized, and if the Secretary is right in fearing that this additional dam would destroy the waterway as spawning grounds for anadromous fish (salmon and steelhead) or seriously impair that function, the project is put in an entirely different light. The importance of salmon and steelhead in our out-door life as well as in commerce [Footnote 6] is so great that there certainly comes a time when their destruction might necessitate a halt in so-called "improvement" or "development" of waterways. The destruction of anadromous Page 387 U. S. 438 fish in our western waters is so notorious [Footnote 7] that we cannot believe that Congress, through the present Act, authorized their ultimate demise.We need not speculate as to what the 1920 purpose may have been. For the 1965 Anadromous Fish Act, 79 Stat. 1125, 16 U.S.C. §§ 757a-757f (1964 ed., Supp. II), is on this aspect of the present case in pari materia with the 1920 Act. We know from § 1 of the 1965 Act that Congress is greatly concerned with the depletion of these fish resources "from water resources developments and other causes." See also H.R.Rep. No. 1007, 89th Cong., 1st Sess., pp. 2-5; S.Rep. No. 860, 89th Cong., 1st Sess.; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 89th Cong., 1st Sess., 133; Anadromous Fish, Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 88th Cong., 2d Sess., 11. The rapid depletion of the Nation's anadromous fish resources led Congress to enact the Anadromous Fish Act, which authorizes federal-state cooperation for the conservation, development, and enhancement of the Nation's anadromous fish resources and to prevent their depletion from various causes including water resources development. In passing the Act, Congress was well aware that the responsibility for the destruction of the anadromous fish population partially lies with the "improvement" and "development" of water resources. It directed the Secretary of the Interior"to conduct such studies and make such recommendations as the Secretary determines to be appropriate regarding the development and management of any Page 387 U. S. 439 stream or other body of water for the conservation and enhancement of anadromous fishery resources."§ 2.Mr. Justice Holmes once wrote that "[a] river is more than an amenity, it is a treasure." [Footnote 8] New Jersey v. New York, 283 U. S. 336, 283 U. S. 342. That dictum is relevant here for the Commission, under § 10 of the 1920 Act, as amended, must take into consideration not only hydroelectric power, navigation, and flood control, but also the "recreational purposes" served by the river. And, as we have noted, the Secretary of the Interior has a mandate under the 1965 Act to study recommendations concerning water development programs for the purpose of the conservation of anadromous fish. Thus, apart from § 7(b) of the 1920 Act, as amended, the Secretary, by reason of § 2 of the 1965 Act, comes to the Federal Power Commission with a special mandate from Congress, a mandate that gives him Page 387 U. S. 440 special standing to appear, to intervene, to introduce evidence on the proposed river development program, and to participate fully in the administrative proceedings.Fishing is obviously one recreational use of the river and it also has vast commercial implications as the legislative history of the 1965 Act indicates. The Commission, to be sure, did not wholly neglect this phase of the problem. In its report, it adverted to the anadromous fish problem, stating that it was "highly controversial" and was not "clearly resolved on record." The reservoir is "the most important hazard" both to upstream migrants and downstream migrants. Upstream migrants can be handled quite effectively by fish ladders. But those traveling downstream must go through the turbines, and their mortality is high. Moreover, Chinook salmon are "basically river fish, and do not appear to adapt to the different conditions presented by a reservoir." 31 F.P.C. at 260. The ecology of a river is different from the ecology of a reservoir built behind a dam. What the full effect on salmon will be is not known. But we get a glimmering from the Commission's report. As to this, the Commission said:"A reservoir exhibits a peculiar thermal structure. During the winter, it is homogeneous with regard to temperature, but as the season advances, a horizontal stratification results with the colder water sinking lower. Since Salmon River water is colder than Snake River water, it is possible, if not probable, that, in the Nez Perce reservoir, the water from the two rivers would be found in separate layers and be drawn off at different times. Presumably the upstream migrants reaching fish ladders might at one time be presented with water from one river and at another time water from the other river. If water quality is important in attracting the upstream migrants to their proper streams, as many experts Page 387 U. S. 441 believe, this stratification would be a source of confusion and delay. Also a source of confusion to the upstream migrants would be the predicted tendency shown by the record for water from the Salmon River arm of the Nez Perce reservoir to flow up the Snake River arm and vice versa. Again, the fish are faced with a complicated problem in finding their way.""The velocity of flow in the Nez Perce or HMS reservoir would be very low compared with the free flowing stream, or even compared to the flow in the reservoir of the McNary dam on the Columbia. Since the upstream migrants follow water flow and downstream migrants are carried by current, such low velocities offer a further obstacle to the passage of anadromous fish.""The record also shows that, during the summer months, the oxygen content of the water in the reservoir at the lower levels will fall to amounts which are dangerously insufficient for salmon. The decrease in oxygen content appears to be due to decomposed sinking dead organisms (plankton) from the upper layers of water. The record indicates that salmon require an oxygen content of approximately five parts per million, yet the oxygen content at the 250-350 foot level would fall in August to less than three parts per million."31 F.P.C. at 261.The Commission further noted that some salmon remain in the reservoir due to "loss of water velocity or accumulation of dissolved salts," and are lost "as perpetuators of the species." But it did not have statistics showing the loss of the downstream migrants as a result of passing through the turbines. We are told from studies of the Bureau of Commercial Fisheries that the greatest downstream migration occurs at night, when turbine loads Page 387 U. S. 442 are lower. [Footnote 9] We are told from these studies that the effect of dams on the downstream migration of salmon and steelhead may be disastrous. [Footnote 10] It is reported that, unless practical alternatives are designed, such as the collection of juvenile fish above the dams and their transportation below it, we may witness an inquest on a great industry and a great "recreational" asset of the Nation.In his letter of November 21, 1960, the Secretary of the Interior noted the adverse effects this present project would have on anadromous fish, that the facilities proposed to protect the fish were "unproved," and that"conservation in the fullest sense calls for a deferral while full advantage is taken of the opportunity presented by Canadian storage and Libby [Dam]."The Commission admitted that "high dams and reservoirs present major obstacles to anadromous fish," that it was not optimistic "as to the efficacy of fish passage facilities on high Page 387 U. S. 443 dams," and concluded with the forlorn statement that,"We can hope for the best and we will continue to insist that any licensee building a high dam at a site which presumably involves major fish runs do everything possible within the limits of reasonable expense to preserve the fish runs. But, as of now, we understandably must assume that the best efforts will be only partly successful, and that real damage may and probably will be done to any such fish runs."31 F.P.C. at 262.Equally relevant is the effect of the project on wildlife. In his letter of November 21, 1960, the Secretary of the Interior noted that the areas of the proposed projects were important wildlife sanctuaries, inhabited by elk, deer, partridge, a variety of small game and used by ducks, geese, and mourning doves during migration. He concluded that "adverse effects of the proposed project [HMS] on wildlife could [not] be mitigated." Letter of November 21, 1960 (Joint App. 133), as corrected by letter of December 7, 1960 (J.A. 137). The Secretary concluded that"Several thousand acres of mule deer range would be inundated, and there would be a moderate reduction in the number of deer as a result of loss of range. There would be losses of upland game, fur animals, and waterfowl. Reservoir margins would be barren and unattractive to all wildlife groups. Waterfowl use of the reservoir would be insignificant. There does not appear to be any feasible means of mitigating wildlife losses."The Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 72 Stat. 563, 16 U.S.C. § 661 et seq., establishes a national policy of"recognizing the vital contribution of our wildlife resources to the Nation, the increasing public interest and significance thereof due to expansion of our national economy and other factors, and to provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water resource development programs. . . ."Section 2(a), 16 U.S.C. § 662(a), provides that an agency evaluating a Page 387 U. S. 444 license under which "the waters of any stream or other body of water are proposed . . . to be impounded""first shall consult with the United States Fish and Wildlife Service, Department of the Interior . . . with a view to the conservation of wildlife resources by preventing loss of and damage to such resources. . . ."Certainly the wildlife conservation aspect of the project must be explored and evaluated.These factors of the anadromous fish and of other wildlife may indeed be all-important in light of the alternate sources of energy that are emerging.In his letter of November 21, 1960, the Secretary noted that, due to increased power resources, the projects could be safely deferred."These projects could extend the time still further, as could also be the case in the event nuclear power materialized at Hanford in the 1960-1970 period. This possibility, as you know, has been under intensive study by your staff for the Atomic Energy Commission. . . ."The urgency of the hydroelectric power at High Mountain Sheep was somewhat discounted by the Secretary in his petition to intervene:"Power needs of the Northwest do not require immediate construction of the High Mountain Sheep Project. One of the reasons which leads the Secretary to intervene now is that the Examiner's decision of October 10, 1962, was handed down just prior to Congressional action which substantially altered the federal power resource program of the Pacific Northwest. This Congressional action requires a complete reexamination and reappraisement of the conclusions stated as the basis for the Examiner's findings.""The action of Congress in the session just concluded has made provisions for new federal power producing facilities. Bruc[e]s Eddy Dam, with a Page 387 U. S. 445 peak capacity of 345,000 KW, was authorized and received an appropriation for the start of construction in Fiscal Year 1963. Asotin Dam, with a peak capacity of 331,000 KW, was also authorized. Little Goose Dam, with a peak capacity of 466,000 KW, which had previously been authorized, received an appropriation for the start of construction in 1963. Most important of all, generation at the Hanford Thermal Project, which would add approximately 905,000 kilowatts to the Northwest's power resources, was also approved.""There are other possibilities regarding new power sources which have reasonable prospects of realization. They include Canadian storage, realization of which is dependent upon consummation of the Canadian Treaty. Additional firm capacity which would accrue to the United States from such storage would be 1,300,000 kilowatts. In addition, the Treaty would allow the construction of Libby Dam, which would initially have a capacity of 397,000 kilowatts. There is also the possibility of the availability in the United States of power from the Canadian entitlement under the Treaty of 1,300000 kilowatts. Plans are also under way for construction of a 500,000 kilowatt steam plant by Kittitas PUD and Grant County PUD. A number of different agencies have proposed the construction of the Pacific Northwest-Southwest transmission intertie, which, by electrical integration, would add an additional 400,000 kilowatts of firm capacity for the Pacific Northwest.""The total power resource of the area is therefore predictably in excess of all foreseeable requirements thereon for the period through 1968-1969 and sufficient to meet all requirements until at least 1972-1973, and potentially for years beyond that date. The addition of High Mountain Sheep Dam will not Page 387 U. S. 446 be needed until at least 1972-1973, and construction should be planned to bring it into production at that time or later as the developing power resource picture indicates.""New generating facilities, which are not correlated to the power resources and power demands within the area of the marketing responsibility of BPA, necessarily result in surpluses of power on the federal system which is the basic wholesale supplier of power in the area, and thereby result in financial deficits on the federal marketing system. In view of the role of the Federal system as the base supplier for the area, this threatens the stability of the area's permanent resources, and hence of the area's economy. The High Mountain Sheep project at this time would have such an effect."We are also told that hydroelectric power promises to occupy a relatively small place in the world's supply of energy. It is estimated that, when the world's population reaches 7,000,000,000 -- as it will in a few decades -- the total energy requirement [Footnote 11] will be 70,000,000,000 metric tons of coal or equivalent annually, and that it will be supplied as follows: .Equalvalentmetric tons ofSource coal (billions)Solar energy (for two-thirds of space heating). . . . 15.6Hydroelectricity. . . . . . . . . . . . . . . . . . . 4.2Wood for lumber and paper . . . . . . . . . . . . . . 2.7Wood for conversion to liquid fuels and chemicals . . 2.3Liquid fuels and "petro" chemicals produced vianuclear energy. . . . . . . . . . . . . . . . . . . 10.0Nuclear electricity . . . . . . . . . . . . . . . . . 35.2-----Total. . . . . . . . . . . . . . . . . . . . . . 70.0Brown, The Next Hundred Years (1957), p. 113. Page 387 U. S. 447By 1980, nuclear energy "should represent a significant proportion of world power production." Id. at 109. By the end of the century, "nuclear energy may account for about one-third of our total energy consumption." Ibid. "By the middle of the next century it seems likely that most of our energy needs will be satisfied by nuclear energy." Id. at 110. Page 387 U. S. 448Some of these time schedules are within the period of the 50-year licenses granted by the Commission.Nuclear energy is coming to the Columbia River basin by 1975. For plans are afoot to build a plant on the Trogan site, 14 miles north of St. Helens. This one plant will have a capacity of 1,000,000 kws. This emphasizes the relevancy of the Secretary's reference to production and distribution of nuclear energy at the Hanford Thermal Project, which he called "most important of all" and which Congress has authorized. 76 Stat. 604.Implicit in the reasoning of the Commission and the Examiner is the assumption that this project must be built, and that it must be built now. In the view of the Commission, one of the factors militating against federal development was that"[t]he Department of Interior . . . frankly admitted it [had] no present intention of seeking authorization to commence construction or planning to construct an HMS project."31 F.P.C. at 277. The Examiner's report stated that "[a] comprehensive plan provides for prompt and optimum multi-purpose development of the water resource," and that the relative merits of the proposed projects"turn on a comparison of the costs and benefits of component developments and on which project is best adapted to attain optimum development at the earliest time with the smallest sacrifice of natural values."J.A. 394 (emphasis added). But neither the Examiner nor the Commission specifically found that deferral of the project would not be in the public interest, or that immediate development would be more in the public interest than construction at some future time or no construction at all. Section 4(e) of the Act, the section authorizing the Commission to grant licenses, provides in part:"Whenever the contemplated improvement is, in the judgment of the Commission, desirable and justified Page 387 U. S. 449 in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, a finding to that effect shall be made by the Commission and shall become a part of the records of the Commission."49 Stat. 840, 16 U.S.C. § 797(e). And § 10(a) of the Act provides that:"the project adopted . . . shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses, including recreational purposes. . . ."49 Stat. 842, 16 U.S.C. § 803(a).The issues of whether deferral of construction would be more in the public interest than immediate construction and whether preservation of the reaches of the river affected would be more desirable and in the public interest than the proposed development are largely unexplored in this record. We cannot assume that the Act commands the immediate construction of as many projects as possible. The Commission did discuss the Secretary of Interior's claim that, due to alternate power sources, the region will not need the power supplied by the High Mountain Sheep dam for some time. And it concluded that"[o]f more significance . . . than the regional power situation are the load and resources of the [Pacific Northwest Power Company] companies themselves,"which could use the power in the near future. 31 F.P.C. at 272. It added. "In summary as to the need for power, we conclude that the PNPC sponsoring companies will be able to use HMS power as soon as it is available." 31 F.P.C. at 273. On rehearing the Commission stated that "HMS power will be needed on a regional basis by 1970-1971. . . ." 31 F.P.C. 1051, 1052. Page 387 U. S. 450The question whether the proponents of a project "will be able to use" the power supplied is relevant to the issue of the public interest. So too is the regional need for the additional power. But the inquiry should not stop there. A license under the Act empowers the licensee to construct, for its own use and benefit, hydroelectric projects utilizing the flow of navigable waters and thus, in effect, to appropriate water resources from the public domain. The grant of authority to the Commission to alienate federal water resources does not, of course, turn simply on whether the project will be beneficial to the licensee. Nor is the test solely whether the region will be able to use the additional power. The test is whether the project will be in the public interest. And that determination can be made only after an exploration of all issues relevant to the "public interest," including future power demand and supply, alternate sources of power, the public interest in preserving reaches of wild rivers and wilderness areas, the preservation of anadromous fish for commercial and recreational purposes, and the protection of wildlife.The need to destroy the river as a waterway, the desirability of its demise, the choices available to satisfy future demands for energy -- these are all relevant to a decision under § 7 and § 10, but they were largely untouched by the Commission.On our remand there should be an exploration of these neglected phases of the cases, as well as the other points raised by the Secretary.We express no opinion on the merits. It is not our task to determine whether any dam at all should be built or whether if one is authorized it should be private or public. If the ultimate ruling under § 7(b) is that the decision concerning the High Mountain Sheep site should be made by the Congress, the factors we have mentioned will be among the many considerations it doubtless will appraise. If the ultimate decision under § 7(b) is the Page 387 U. S. 451 other way, the Commission will not have discharged its functions under the Act unless it makes an informed judgment on these phases of the cases.This leaves us with the questions presented by Washington Public Power Supply System in No. 462. The main points raised by it are that it is a "municipality" within the meaning of § 7(a), and therefore entitled to a preference over this power site, that the Commission violated that statutory preference, and that, while Pacific Northwest had a prior preliminary permit granted under § 5 of the Act, the Commission unlawfully expanded it to include this site. We express no opinion on the merits of these contentions, because they may or may not survive a remand. If, in time, the project, if any, becomes a federal one, Washington Public Power Supply System would be excluded along with Pacific Northwest, and the points now raised by it would become moot. If, in time, a new license is issued to Pacific Northwest, the points now raised by Washington Public Power Supply System can be preserved. Accordingly, in No. 462 we vacate the judgment and remand the case to the Court of Appeals with instructions to remand to the Commission. In No. 463, we reverse the judgment and remand the case to the Court of Appeals with instructions to remand to the Commission. Each remand is for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUdall v. FPC, 387 U.S. 428 (1967)Udall v. Federal Power CommissionNo. 463Argued April 11, 1967Decided June 5, 1967*387 U.S. 428SyllabusPacific Northwest Power Co. (a joint venture of four private power companies) and Washington Public Power Supply System, allegedly a "municipality," applied to the Federal Power Commission (FPC) for mutually exclusive licenses to construct hydroelectric power projects at High Mountain Sheep, on the Snake River. On the Snake-Columbia waterway between High Mountain Sheep and the ocean eight hydroelectric dams have been built and another authorized, all federal projects. Section 7(b) of the Federal Water Power Act of 1920 provides that, whenever, in the FPC's judgment, the development of water resources for public purposes should be undertaken by the United States itself, the FPC shall not approve any application for any project affecting such development, but shall cause to be made such necessary examinations, reports, plans, and cost estimates and "shall submit its findings to Congress with such recommendations as it may find appropriate concerning such development." Before a hearing on the license applications, the FPC asked for the views of the Secretary of the Interior, who urged postponement of either project until means of fish protection were studied. The hearings went forward, and after the record was closed, the Secretary wrote the FPC urging it to recommend to Congress the federal construction of the project. The FPC reopened the record to permit the parties to file supplemental briefs in response to the letter. The Examiner then recommended that Pacific Northwest receive the license. The Secretary, after asking for leave to intervene and file exceptions, filed exceptions and made oral argument. The FPC in 1964 affirmed the Examiner, stating that "the record supports no reason why federal development should be superior," and "there is no evidence in the record presented by [the Secretary] to support his position." The Secretary petitioned for a rehearing and a reopening of the Page 387 U. S. 429 record to permit him to supply the evidentiary deficiencies. A rehearing, but not a reopening, was granted, and the FPC reaffirmed its decision. The Court of Appeals upheld the FPC's decision.Held:1. Although the issue of federal development of water resources must, pursuant to § 7(b) of the Federal Power Act, be evaluated by the FPC in connection with its consideration of the issuance of any license for a hydroelectric project, the issue has not been explored in the record herein. Pp. 387 U. S. 434-450.(a) The applicants introduced no evidence addressed to the issue, and the FPC, by its rulings on the Secretary's applications to intervene and reopen, precluded itself from having the informed judgment that § 7(b) commands. P. 387 U. S. 434.(b) If another dam is to be built, the question whether it should be under federal auspices looms large, in view of the number of federal projects on the Snake-Columbia waterway and the effect of the operation of a new dam on the vast river complex. Pp. 387 U. S. 434-435.(c) Under § 10(a) of the Act, the FPC must protect "recreational purposes," and by § 2 of the 1965 Anadromous Fish Act, the Secretary comes before the FPC with a special mandate to appear, intervene, and introduce evidence on the proposed river development program, and to participate fully in the administrative proceedings. Pp. 387 U. S. 436-440.(d) The wildlife conservation aspect of the project must be explored and evaluated. Pp. 387 U. S. 443-444.(e) The urgency of the hydroelectric power project, discounted by the Secretary, was not fully explored, especially in view of the probable future development of other energy sources. Pp. 387 U. S. 444-448.(f) The determinative test is whether the project will be in the public interest, and that determination can be made only after an exploration of all relevant issues. P. 387 U. S. 450.2. No opinion is expressed on the contention of Washington Public Power Supply System that it is a "municipality" within the meaning of § 7(a) of the Federal Power Act and entitled to a statutory preference, an issue which may or may not survive the remand. Pp. 387 U. S. 450-451.123 U.S.App.D.C. 209, 358 F.2d 840, vacated and remanded in No. 462, and reversed and remanded in No. 463. Page 387 U. S. 430

1984_84-468

JUSTICE WHITE delivered the opinion of the Court.A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a "quasi-suspect" classification, and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that, under that standard, the ordinance is invalid as applied in this case.IIn July, 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of Cleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC), [Footnote 1] for the operation of a group home for the mentally retarded. It was anticipated that the home would house 13 retarded men and women, who would be under the constant supervision of CLC staff members. The house had four bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable state and federal regulations. [Footnote 2] Page 473 U. S. 436The city informed CLC that a special use permit would be required for the operation of a group home at the site, and CLC accordingly submitted a permit application. In response to a subsequent inquiry from CLC, the city explained that, under the zoning regulations applicable to the site, a special use permit, renewable annually, was required for the construction of "[h]ospitals for the insane or feeble-minded, or alcoholic [sic] or drug addicts, or penal or correctional institutions." [Footnote 3] The city had determined that the proposed Page 473 U. S. 437 group home should be classified as a "hospital for the feebleminded." After holding a public hearing on CLC's application, the City Council voted 3 to 1 to deny a special use permit. [Footnote 4]CLC then filed suit in Federal District Court against the city and a number of its officials, alleging, inter alia, that the zoning ordinance was invalid on its face and as applied because it discriminated against the mentally retarded in violation of the equal protection rights of CLC and its potential residents. The District Court found that,"[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city's zoning ordinance,"and that the City Council's decision "was motivated primarily by the fact that the residents of the home would be persons who are mentally retarded." App. 93, 94. Even so, the District Court held the ordinance and its application constitutional. Concluding that no fundamental right was implicated, and that mental retardation was neither a suspect nor a quasi-suspect classification, the court employed the minimum level of judicial scrutiny applicable to equal protection claims. The court deemed the ordinance, as written and applied, to be rationally related to the city's legitimate interests in "the legal responsibility of CLC and its residents, . . . the safety and fears of residents in the adjoining neighborhood," and the number of people to be housed in the home. [Footnote 5] Id. at 103.The Court of Appeals for the Fifth Circuit reversed, determining that mental retardation was a quasi-suspect classification and that it should assess the validity of the ordinance Page 473 U. S. 438 under intermediate-level scrutiny. 726 F.2d 191 (1984). Because mental retardation was in fact relevant to many legislative actions, strict scrutiny was not appropriate. But in light of the history of "unfair and often grotesque mistreatment" of the retarded, discrimination against them was "likely to reflect deep-seated prejudice." Id. at 197. In addition, the mentally retarded lacked political power, and their condition was immutable. The court considered heightened scrutiny to be particularly appropriate in this case, because the city's ordinance withheld a benefit which, although not fundamental, was very important to the mentally retarded. Without group homes, the court stated, the retarded could never hope to integrate themselves into the community. [Footnote 6] Applying the test that it considered appropriate, the court held that the ordinance was invalid on its face because it did not substantially further any important governmental interests. The Court of Appeals went on to hold that the ordinance was also invalid as applied. [Footnote 7] Rehearing en banc was Page 473 U. S. 439 denied with six judges dissenting in an opinion urging en banc consideration of the panel's adoption of a heightened standard of review. We granted certiorari, 469 U.S. 1016 (1984). [Footnote 8]IIThe Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U. S. 202, 457 U. S. 216 (1982). Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for Page 473 U. S. 440 determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid, and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U. S. 221, 450 U. S. 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 449 U. S. 174-175 (1980); Vance v. Bradley, 440 U. S. 93, 440 U. S. 97 (1979); New Orleans v. Dukes, 427 U. S. 297, 427 U. S. 303 (1976). When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, United States Railroad Retirement Board v. Fritz, supra, at 449 U. S. 174; New Orleans v. Dukes, supra, at 427 U. S. 303, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny, and will be sustained only if they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 192 (1964); Graham v. Richardson, 403 U. S. 365 (1971). Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U. S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942).Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment."[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic Page 473 U. S. 441 frequently bears no relation to ability to perform or contribute to society."Frontiero v. Richardson, 411 U. S. 677, 411 U. S. 686 (1973) (plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest. Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Craig v. Boren, 429 U. S. 190 (1976). Because illegitimacy is beyond the individual's control and bears "no relation to the individual's ability to participate in and contribute to society," Mathews v. Lucas, 427 U. S. 495, 427 U. S. 505 (1976), official discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." Mills v. Habluetzel, 456 U. S. 91, 456 U. S. 99 (1982).We have declined, however, to extend heightened review to differential treatment based on age:"While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities."Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 427 U. S. 313 (1976).The lesson of Murgia is that, where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be Page 473 U. S. 442 pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.IIIAgainst this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and function in the everyday world. Nor are they all cut from the same pattern: as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for. [Footnote 9] They are thus different, immutably so, in relevant respects, and the States' interest in dealing with and providing for them is plainly a legitimate one. [Footnote 10] How this large and diversified group is to be treated Page 473 U. S. 443 under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals, and not by the perhaps ill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation.Second, the distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Thus, the Federal Government has not only outlawed discrimination against the mentally retarded in federally funded programs, see § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, but it has also provided the retarded with the right to receive "appropriate treatment, services, and habilitation" in a setting that is "least restrictive of [their] personal liberty." Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 6010(1), (2). In addition, the Government has conditioned federal education funds on a State's assurance that retarded children will enjoy an education that, "to the maximum extent appropriate," is integrated with that of nonmentally retarded children. Education of the Handicapped Act, 20 U.S.C. § 1412(5)(B). The Government has also facilitated the hiring of the mentally retarded into the federal civil service by exempting them from the requirement of competitive examination. Page 473 U. S. 444 See 5 CFR § 213.3102(t) (1984). The State of Texas has similarly enacted legislation that acknowledges the special status of the mentally retarded by conferring certain rights upon them, such as "the right to live in the least restrictive setting appropriate to [their] individual needs and abilities," including "the right to live . . . in a group home." Mentally Retarded Persons Act of 1977, Tex.Rev.Civ.Stat.Ann., Art. 5547-300, § 7 (Vernon Supp.1985). [Footnote 11]Such legislation thus singling out the retarded for special treatment reflects the real and undeniable differences between the retarded and others. That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable. It may be, as CLC contends, that legislation designed to benefit, rather than disadvantage, the retarded would generally withstand examination under a test of heightened scrutiny. See Brief for Respondents 38-41. The relevant inquiry, however, is whether heightened scrutiny is constitutionally mandated in the first instance. Even assuming that many of these laws could be shown to be substantially related to an important governmental purpose, merely requiring the legislature to justify its efforts in these terms may lead it to refrain from acting at all. Much recent legislation intended to benefit the retarded also assumes the need for measures that might be perceived to disadvantage them. The Education of the Handicapped Act, for example, requires an "appropriate" education, not one that is equal in all respects Page 473 U. S. 445 to the education of nonretarded children; clearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate. [Footnote 12] Similarly, the Developmental Disabilities Assistance Act and the Texas Act give the retarded the right to live only in the "least restrictive setting" appropriate to their abilities, implicitly assuming the need for at least some restrictions that would not be imposed on others. [Footnote 13] Especially given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts.Third, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect.Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only Page 473 U. S. 446 the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are, in fact, invidious, and that are properly subject to judicial correction under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classification and subject all governmental action based on that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us. Because mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions, and because both State and Federal Governments have recently committed themselves to assisting the retarded, we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate.Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. This standard, we believe, affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. See Zobel v. Williams, 457 U. S. 55, 457 U. S. 61-63 (1982); United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 413 U. S. 535 (1973). Furthermore, some objectives -- Page 473 U. S. 447 such as "a bare . . . desire to harm a politically unpopular group," id. at 413 U. S. 534 -- are not legitimate state interests. See also Zobel, supra, at 457 U. S. 63. Beyond that, the mentally retarded, like others, have and retain their substantive constitutional rights in addition to the right to be treated equally by the law.IVWe turn to the issue of the validity of the zoning ordinance insofar as it requires a special use permit for homes for the mentally retarded. [Footnote 14] We inquire first whether requiring a special use permit for the Featherston home in the circumstances here deprives respondents of the equal protection of the laws. If it does, there will be no occasion to decide whether the special use permit provision is facially invalid where the mentally retarded are involved, or to put it another way, whether the city may never insist on a special use permit for a home for the mentally retarded in an R-3 zone. This is the preferred course of adjudication, since it enables courts to avoid making unnecessarily broad constitutional judgments. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 472 U. S. 501-502 (1985); United States v. Grace, 461 U. S. 171 (1983); NAACP v. Button, 371 U. S. 415 (1963).The constitutional issue is clearly posed. The city does not require a special use permit in an R-3 zone for apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged (other than for the insane or feeble-minded or alcoholics or drug addicts), private clubs or fraternal orders, and other specified uses. It does, however, insist on a special permit for the Featherston home, and it does so, as the District Court found, because it would be a facility for the mentally Page 473 U. S. 448 retarded. May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted?It is true, as already pointed out, that the mentally retarded, as a group, are indeed different from others not sharing their misfortune, and in this respect they may be different from those who would occupy other facilities that would be permitted in an R-3 zone without a special permit. But this difference is largely irrelevant unless the Featherston home and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not. Because, in our view, the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city's legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case.The District Court found that the City Council's insistence on the permit rested on several factors. First, the Council was concerned with the negative attitude of the majority of property owners located within 200 feet of the Featherston facility, as well as with the fears of elderly residents of the neighborhood. But mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like. It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713, 377 U. S. 736-737 (1964), and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U. S. 429, 466 U. S. 433 (1984). Page 473 U. S. 449Second, the Council had two objections to the location of the facility. It was concerned that the facility was across the street from a junior high school, and it feared that the students might harass the occupants of the Featherston home. But the school itself is attended by about 30 mentally retarded students, and denying a permit based on such vague, undifferentiated fears is again permitting some portion of the community to validate what would otherwise be an equal protection violation. The other objection to the home's location was that it was located on "a five-hundred-year flood plain." This concern with the possibility of a flood, however, can hardly be based on a distinction between the Featherston home and, for example, nursing homes, homes for convalescents or the aged, or sanitariums or hospitals, any of which could be located on the Featherston site without obtaining a special use permit. The same may be said of another concern of the Council -- doubts about the legal responsibility for actions which the mentally retarded might take. If there is no concern about legal responsibility with respect to other uses that would be permitted in the area, such as boarding and fraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded individuals who would live at 201 Featherston would present any different or special hazard.Fourth, the Council was concerned with the size of the home and the number of people that would occupy it. The District Court found, and the Court of Appeals repeated, that,"[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city's zoning ordinance."App. 93; 726 F.2d at 200. Given this finding, there would be no restrictions on the number of people who could occupy this home as a boarding house, nursing home, family dwelling, fraternity house, or dormitory. The question is whether it is rational to treat the mentally retarded differently. It is true that they suffer disability Page 473 U. S. 450 not shared by others, but why this difference warrants a density regulation that others need not observe is not at all apparent. At least this record does not clarify how, in this connection, the characteristics of the intended occupants of the Featherston home rationally justify denying to those occupants what would be permitted to groups occupying the same site for different purposes. Those who would live in the Featherston home are the type of individuals who, with supporting staff, satisfy federal and state standards for group housing in the community; and there is no dispute that the home would meet the federal square-footage-per-resident requirement for facilities of this type. See 42 CFR § 442.447 (1984). In the words of the Court of Appeals,"[t]he City never justifies its apparent view that other people can live under such 'crowded' conditions when mentally retarded persons cannot."726 F.2d at 202.In the courts below, the city also urged that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets. These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as 201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood.The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law.The judgment of the Court of Appeals is affirmed insofar as it invalidates the zoning ordinance as applied to the Featherston home. The judgment is otherwise vacated, and the case is remanded.It is so ordered

U.S. Supreme CourtCleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)City of Cleburne, Texas v. Cleburne Living Center, Inc.No. 84-468Argued March 18, 1985Reargued April 23, 1985Decided July 1, 1985473 U.S. 432SyllabusRespondent Cleburne Living Center, Inc. (CLC), which anticipated leasing a certain building for the operation of a group home for the mentally retarded, was informed by petitioner city that a special use permit would be required, the city having concluded that the proposed group home should be classified as a "hospital for the feebleminded" under the zoning ordinance covering the area in which the proposed home would be located. Accordingly, CLC applied for a special use permit, but the City Council, after a public hearing, denied the permit. CLC and others (also respondents here) then filed suit against the city and a number of its officials, alleging that the zoning ordinance, on its face and as applied, violated the equal protection rights of CLC and its potential residents. The District Court held the ordinance and its application constitutional. The Court of Appeals reversed, holding that mental retardation is a "quasi-suspect" classification; that, under the applicable "heightened scrutiny" equal protection test, the ordinance was facially invalid because it did not substantially further an important governmental purpose; and that the ordinance was also invalid as applied.Held:1. The Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. Pp. 473 U. S. 439-447.(a) Where individuals in a group affected by a statute have distinguishing characteristics relevant to interests a State has the authority to implement, the Equal Protection Clause requires only that the classification drawn by the statute be rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude. Pp. 473 U. S. 439-442.(b) Mentally retarded persons, who have a reduced ability to cope with and function in the everyday world, are thus different from other persons, and the States' interest in dealing with and providing for them Page 473 U. S. 433 is plainly a legitimate one. The distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary than is afforded under the normal equal protection standard. Moreover, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. The equal protection standard requiring that legislation be rationally related to a legitimate governmental purpose affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. Pp. 473 U. S. 442-447.2. Requiring a special use permit for the proposed group home here deprives respondents of the equal protection of the laws, and thus it is unnecessary to decide whether the ordinance's permit requirement is facially invalid where the mentally retarded are involved. Although the mentally retarded, as a group, are different from those who occupy other facilities -- such as boarding houses and hospitals -- that are permitted in the zoning area in question without a special permit, such difference is irrelevant unless the proposed group home would threaten the city's legitimate interests in a way that the permitted uses would not. The record does not reveal any rational basis for believing that the proposed group home would pose any special threat to the city's legitimate interests. Requiring the permit in this case appears to rest on an irrational prejudice against the mentally retarded, including those who would occupy the proposed group home and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law. Pp. 473 U. S. 447-450.726 F.2d 191, affirmed in part, vacated in part, and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 473 U. S. 451. MARSHALL, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 473 U. S. 455. Page 473 U. S. 435

1994_94-688

state law, it also held that petitioners were not entitled to declaratory or injunctive relief under Rev. Stat. § 1979, 42 U. S. C. § 1983, and, accordingly, that they could not obtain attorney's fees under 42 U. S. C. § 1988(b) (1988 ed., Supp. V). Petitioners argue that this holding violates the Supremacy Clause, U. S. Const., Art. VI, cl. 2. We affirm.IIn 1983, Oklahoma imposed third-structure taxes against motor carriers with vehicles registered in any of 25 States.1 It did so in order to retaliate against those States that had imposed discriminatory taxes against trucks registered in Oklahoma. In December 1984, petitioners filed a class action in an Oklahoma trial court, arguing that the taxes violated the dormant Commerce Clause and the Privileges and Immunities Clause of Art. IV, § 2, cl. 1. Pursuant to state law and § 1983, petitioners sought declaratory and injunctive relief as well as refunds of taxes paid. In addition, they sought attorney's fees under both state law and § 1988.21 Third-structure taxes are those nonregistration, nonfuel taxes that are neither apportioned nor prorated. One example of a third-structure tax is an axle tax, which imposes a flat charge based on the number of axles per vehicle. See Private Truck Council v. Oklahoma Tax Comm'n, 8062 Section 1983 provides:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."Section 1988(b) provides:"In any action or proceeding to enforce a provision of sectio[n] ... 1983 ... of this title ... , the court, in its discretion, may allow the prevailing585The trial court upheld the constitutionality of the taxes, but the Oklahoma Supreme Court reversed and held that the taxes were invalid under our dormant Commerce Clause jurisprudence. Private Truck Council v. Oklahoma Tax Comm'n, 806 P. 2d 598 (1990). The court awarded refunds under state law, but declined to award relief under § 1983 and declined to award attorney's fees under § 1988. In so ruling, it relied on Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139 (CA8), cert. denied, 469 U. S. 834 (1984), which held that § 1983 may not be used to secure remedies for dormant Commerce Clause violations.After the Oklahoma Supreme Court's decision, we held that one of the "rights, privileges or immunities" protected by § 1983 was the right to be free from state action that violates the dormant Commerce Clause. See Dennis v. Higgins, 498 U. S. 439 (1991). Accordingly, we granted the taxpayers' petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of Dennis. 501 U. S. 1247 (1991).On remand, the Oklahoma Supreme Court once again held that petitioners were not entitled to relief under § 1983. 879 P. 2d 137 (1994). The court noted that because adequate remedies existed under state law, the Tax Injunction Act, 28 U. S. C. § 1341, would have precluded petitioners from seeking an injunction in federal court. 879 P. 2d, at 140-141. Although the Tax Injunction Act does not apply in state courts, the Oklahoma Supreme Court relied upon the principle of "intrastate uniformity" to conclude that a state court need not grant injunctive or declaratory relief under § 1983 when such remedies would not be available in federal court. Id., at 141 (quoting Felder v. Casey, 487 U. S. 131, 153 (1988)). We granted certiorari to resolve a conflict among the state courts as to whether, in tax cases, state courts must provideparty ... a reasonable attorney's fee as part of the costs." 42 U. S. C. § 1988(b) (1988 ed., Supp. V).586relief under § 1983 when adequate remedies exist under state law.3IIWe have long recognized that principles of federalism and comity generally counsel that courts should adopt a hands-off approach with respect to state tax administration. Immediately prior to the enactment of § 1983, the Court articulated the reasons behind the reluctance to interfere:"It is upon taxation that the several States chiefly rely to obtain the means to carryon their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible." Dows v. Chicago, 11 Wall. 108, 110 (1871).Since the passage of § 1983, Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the Tax Injunction Act in 1937 is one manifestation of this aversion. See 28 U. S. C. § 1341 (prohibiting federal courts from enjoining the collection of any state tax "where a plain, speedy and efficient remedy may be had in the courts of such State"). We subsequently relied upon the Act's spirit to extend the prohibition from injunctions to declaratory judgments regarding the constitutionality of state taxes. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943). Later, we held that the Tax Injunction Act itself precluded district courts from awarding such declaratory judgments. See Cal-3 Compare Zizka v. Water Pollution Control Authority, 195 Conn. 682, 490 A. 2d 509 (1985) (States need not provide § 1983 remedy in state tax cases) and Backus v. Chilivis, 236 Ga. 500, 224 S. E. 2d 370 (1976) (same), with Murtagh v. County of Berks, 535 Pa. 50, 634 A. 2d 179 (1993) (States must provide § 1983 remedy in state tax cases), cert. denied, 511 U. S. 1017 (1994), and Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, 583 N. E. 2d 214 (Ind. Tax 1991) (same).587ifornia v. Grace Brethren Church, 457 U. S. 393, 407-411 (1982).The reluctance to interfere with state tax collection continued in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990), in which we confirmed that the States are afforded great flexibility in satisfying the requirements of due process in the field of taxation. As long as state law provides a "'clear and certain remedy,'" id., at 51 (quoting Atchison, T. & S. F. R. Co. v. O'Connor, 223 U. S. 280, 285 (1912)), the States may determine whether to provide predeprivation process (e. g., an injunction) or instead to afford postdeprivation relief (e. g., a refund), 496 U. S., at 36-37. See also Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 100-102 (1993). Of particular relevance to this case, Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100, 116 (1981), held that because of principles of comity and federalism, Congress never authorized federal courts to entertain damages actions under § 1983 against state taxes when state law furnishes an adequate legal remedy.Seeking to overcome the longstanding federal reluctance to interfere with state taxation, petitioners invoke the Supremacy Clause and the straightforward proposition that it requires state courts to enforce federal law, here §§ 1983 and 1988. When they have jurisdiction, state courts have been compelled to provide federal remedies, notwithstanding the existence of less intrusive state-law remedies. See, e. g., Monroe v. Pape, 365 U. S. 167, 183 (1961). Accordingly, petitioners argue that we should require the Oklahoma Supreme Court to award equitable and declaratory relief under § 1983 and attorney's fees under § 1988.For purposes of this case, we will assume without deciding that state courts generally must hear § 1983 suits.4 But this4 We have never held that state courts must entertain § 1983 suits. See Martinez v. California, 444 U. S. 277, 283, n. 7 (1980) ("We have never considered ... the question whether a State must entertain a claim under588does not necessarily mean that, having found a violation of federal law, state courts must award declaratory and injunctive relief under § 1983 in tax cases. Though federal courts are obliged to hear § 1983 claims, it is clear that they may not award damages or declaratory or injunctive relief in state tax cases when an adequate state remedy exists. See Fair Assessment, supra, at 116; Great Lakes Dredge & Dock Co. v. Huffman, supra, at 293; Matthews v. Rodgers, 284 U. S. 521, 525 (1932); 28 u. S. C. § 1341.As we explain more fully below, the background presumption that federal law generally will not interfere with administration of state taxes leads us to conclude that Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases when there is an adequate remedy at law.5IIIPetitioners correctly point out that the Tax Injunction Act does not prohibit state courts from entertaining § 1983 suits that seek to enjoin the collection of state taxes. Nor can a desire for "intrastate uniformity" permit state courts to refuse to award relief merely because a federal court could not grant such relief. As petitioners note, it was not until 1875 that Congress provided any kind of general federal-question jurisdiction to the lower federal courts. See Palmore v. United States, 411 U. S. 389, 401 (1973). "Until that time, the state courts provided the only forum for vindicating many important federal claims." Ibid. Because of the Supremacy Clause, state courts could not have refused to hear cases arising under federal law merely to ensure "uniform-§ 1983"). Cf. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 234, n. 7 (1987) (observing that whether state courts must assume jurisdiction over § 1983 claims involving state taxes "is not entirely clear").5 Will v. Michigan Dept. of State Police, 491 U. S. 58, 68-69 (1989), already established that petitioners' claim for refunds against the State could not proceed under § 1983.589ity" between state and federal courts located within a particular state.In determining whether Congress has authorized state courts to issue injunctive and declaratory relief in state tax cases, we must interpret § 1983 in light of the strong background principle against federal interference with state taxation. Given this principle, we hold that § 1983 does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate legal remedy exists. Petitioners do not dispute that Oklahoma has offered an adequate remedy in the form of refunds. Under these circumstances, the Oklahoma courts' denial of relief under § 1983 was consistent with the long line of precedent underscoring the federal reluctance to interfere with state taxation.Our cases since Dows have uniformly concluded that federal courts cannot enjoin the collection of state taxes when a remedy at law is available. See, e. g., Matthews v. Rodgers, supra, at 525 (a "scrupulous regard for the rightful independence of state governments ... and a proper reluctance to interfere by injunction with their fiscal operations, require that [injunctive] relief should be denied in every case where the asserted federal right may be preserved without it"); Singer Sewing Machine Co. of N. J. v. Benedict, 229 U. S. 481, 485 (1913); Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276, 282 (1909). Until Fair Assessment, one could have construed these cases as concerning only the equitable powers of the federal courts. See 454 U. S., at 108-111. In Fair Assessment, however, the principle of noninterference with state taxation led us to construe § 1983 narrowly. We held that § 1983 does not permit federal courts to award damages in state tax cases when state law provides an adequate remedy. See id., at 116. Although there was much discussion of the limitations on equity power, that discussion was useful only insofar as it provided a background against which § 1983 must be interpreted. In-590deed, because Fair Assessment considered whether damages were available under § 1983, the principle of equitable restraint that we discussed could have no direct application in that case.In concluding that Congress did not authorize damages actions in state tax cases brought in federal court, we found no evidence that Congress intended § 1983 to overturn the principle of federalism invoked in Dows and subsequently followed by the courts. Construing § 1983, we held that the case was "controlled by principles articulated even before enactment of § 1983 and followed in later decisions." Id., at 115-116.Just as Fair Assessment relied upon a background principle in interpreting § 1983 to preclude damages actions in tax cases brought in federal court, so we rely on the same principle in interpreting § 1983 to provide no basis for courts to award injunctive relief when an adequate legal remedy exists. Our interpretation is supported not only by the background principle of federal noninterference discussed in Fair Assessment, but also by the principles of equitable restraint discussed at length in that case. See id., at 107-109. Whether a suit is brought in federal or state court, Congress simply did not authorize the disruption of state tax administration in this way.To be sure, the Tax Injunction Act reflects the congressional concern withfederal court interference with state taxation, see 28 U. S. C. § 1341, and there is no similar statute divesting state courts of the authority to enter an injunction under federal law when an adequate legal remedy exists. But this silence is irrelevant here, because we do not understand § 1983 to call for courts (whether federal or state) to enjoin the collection of state taxes when an adequate remedy is available under state law. Given the strong background presumption against interference with state taxation, the Tax Injunction Act may be best understood as but a partial codification of the federal reluctance to interfere with state taxation. See Fair Assessment, supra, at 110 ("[T]he prin-591ciple of comity which predated the Act [§ 1341] was not restricted by its passage"). After all, an injunction issued by a state court pursuant to § 1983 is just as disruptive as one entered by a federal court.The availability of an adequate legal remedy renders a declaratory judgment unwarranted as well. In Great Lakes, we observed that "considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes ... require a like restraint in the use of the declaratory judgment procedure." 319 U. S., at 299. The declaratory judgment procedure "may in every practical sense operate to suspend collection of the state taxes until the litigation is ended," ibid., and thus must be treated as being no less potentially disruptive than an injunction. See also Grace Brethren Church, 457 U. S., at 408 ("[T]here is little practical difference between injunctive and declaratory relief"). Cf. Samuels v. Mackell, 401 U. S. 66 (1971) (holding that prohibition against enjoining pending state criminal proceedings applies to granting of declaratory relief). Declaratory relief in state tax cases might throw tax administration "into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law." Perez v. Ledesma, 401 U. S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part). We simply do not read § 1983 to provide for injunctive or declaratory relief against a state tax, either in federal or state court, when an adequate legal remedy exists.66 As our opinions reveal, there may be extraordinary circumstances under which injunctive or declaratory relief is available even when a legal remedy exists. For example, if the "enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, [or] throw a cloud upon the title," equity might be invoked. Dows v. Chicago, 11 Wall. 108, 110 (1871). As we have made clear, however, the multiplicity-of-suits rationale for permitting equitable relief extends only to those situations where there is a real risk of "numerous suits between the same parties, involving the same issues oflaw or fact." Matthews v. Rodgers, 284 U. S. 521, 530 (1932). Thus, if a state court awards a refund to a taxpayer on592KENNEDY, J., concurringOf course, nothing we say prevents a State from empowering its own courts to issue injunctions and declaratory judgments even when a legal remedy exists. Absent a valid federal prohibition, state courts are free to issue injunctions and declaratory judgments under state law. When a litigant seeks declaratory or injunctive relief against a state tax pursuant to § 1983, however, state courts, like their federal counterparts, must refrain from granting federal relief under § 1983 when there is an adequate legal remedy.Because petitioners had an adequate legal remedy, the Oklahoma courts could not have awarded either declaratory or injunctive relief against the state taxes under § 1983. It follows that when no relief can be awarded pursuant to § 1983, no attorney's fees can be awarded under § 1988. Accordingly, the judgment of the Oklahoma Supreme Court isAffirmed

OCTOBER TERM, 1994SyllabusNATIONAL PRIVATE TRUCK COUNCIL, INC., ET AL. v. OKLAHOMA TAX COMMISSION ET AL.CERTIORARI TO THE SUPREME COURT OF OKLAHOMA No. 94-688. Argued April 18, 1995-Decided June 19, 1995In the Oklahoma state courts, petitioners successfully challenged certain state taxes as violating the "dormant" Commerce Clause. The Oklahoma Supreme Court ordered respondents to award refunds pursuant to state law, but declined to award declaratory or injunctive relief under 42 U. S. C. § 1983 or attorney's fees under § 1988. The court reasoned that because adequate remedies existed under state law, the Tax Injunction Act would have precluded petitioners from seeking an injunction in federal court; although that Act does not apply to state courts, the Oklahoma Supreme Court invoked the principle of "intrastate uniformity" to conclude that petitioners were not entitled to injunctive or declaratory relief under § 1983.Held:1. Section 1983 provides no basis for courts to issue injunctive or declaratory relief in state tax cases when there is an adequate remedy at law. This Court has long held that courts should adopt a hands-off approach with respect to state tax administration. Dows v. Chicago, 11 Wall. 108, 110. In passing § 1983, Congress did not limit this strong background principle of noninterference with state taxation. Construing § 1983 with this principle in mind, the Court concludes that § 1983 does not call for courts-whether federal or state-to disrupt state tax administration by issuing injunctive or declaratory relief when state law furnishes an adequate legal remedy. Pp. 588-592.2. Since no relief could be awarded under § 1983, no attorney's fees can be awarded under § 1988. P. 592.879 P. 2d 137, affirmed.THOMAS, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, post, p. 592.Richard A. Allen argued the cause for petitioners. With him on the briefs was Richard P. Schweitzer.Stanley P. Johnston argued the cause for respondents.With him on the brief was Robert B. Struble. **Briefs of amici curiae urging reversal were filed for the Direct Marketing Association, Inc., by George S. Isaacson, Martin I. Eisenstein, and583JUSTICE THOMAS delivered the opinion of the Court.In the Oklahoma state courts, petitioners successfully challenged certain Oklahoma taxes as violating the "dormant" Commerce Clause. Although the Oklahoma Supreme Court ordered respondents to award refunds pursuant toRobert J. Levering; for the National Retail Federation by Timothy B. Dyk, Maryann B. Gall, and Jeffrey S. Sutton; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Joseph L. Yannotti, Assistant Attorney General, Rachel J. Horowitz, Deputy Attorney General, Jeff Sessions, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Richard Blumenthal, Attorney General of Connecticut, M. Jane Brady, Attorney General of Delaware, Garland Pinkston, Jr., Acting Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Margery S. Bronster, Attorney General of Hawaii, Alan G. Lance, Attorney General of Idaho, Jim Ryan, Attorney General of Illinois, Pamela Fanning Carter, Attorney General of Indiana, Carla J. Stovall, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Andrew Ketterer, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Joseph P. Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Jeffrey R. Howard, Attorney General of New Hampshire, Tom Udall, Attorney General of New Mexico, Michael F. Easley, Attorney General of North Carolina, Heidi Heitkamp, Attorney General of North Dakota, Betty D. Montgomery, Attorney General of Ohio, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Pedro R. Pierluisi, Attorney General of Puerto Rico, Jeffrey B. Pine, Attorney General of Rhode Island, Charles W Burson, Attorney General of Tennessee, Dan Morales, Attorney General of Texas, Jan Graham, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, James S. Gilmore III, Attorney General of Virginia, Christine O. Gregoire, Attorney General of Washington, James E. Doyle, Attorney General of Wisconsin, and Eleni M. Constantine; for the Boyertown Area School District et al. by Howard J. Bashman; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.584Full Text of Opinion

1982_81-1453

JUSTICE O'CONNOR delivered the opinion of the Court.Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood alcohol test without violating the defendant's Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 384 U. S. 765, n. 9, and hold that the admission into evidence of a defendant's refusal to submit to such a test likewise does not offend the right against self-incrimination.ITwo Madison, South Dakota, police officers stopped respondent's car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver's license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself. Page 459 U. S. 555 The officers smelled alcohol on his breath. Respondent did not have a driver's license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked respondent to touch his finger to his nose and to walk a straight line. When respondent failed these field sobriety tests, he was placed under arrest and read his Miranda rights. [Footnote 1] Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. App. 11. Reading from a printed card, the officers then asked respondent to submit to a blood alcohol test and warned him that he could lose his license if he refused. [Footnote 2] Respondent refused to take the test, stating "I'm too drunk, I won't pass the test." The officers again read the request to Page 459 U. S. 556 submit to a test, and then took respondent to the police station, where they read the request to submit a third time. Respondent continued to refuse to take the test, again saying he was too drunk to pass it. [Footnote 3]South Dakota law specifically declares that refusal to submit to a blood alcohol test "may be admissible into evidence at the trial." S.D. Comp. Laws Ann. § 32-23-10.1 (Supp.1982). [Footnote 4] Nevertheless, respondent sought to suppress all evidence of his refusal to take the blood alcohol test. The Circuit Court granted the suppression motion for three reasons: the South Dakota statute allowing evidence of refusal violated respondent's federal constitutional rights; the officers failed to advise respondent that the refusal could be used against him at trial; and the refusal was irrelevant to the issues before the court. The State appealed from the entire order. The South Dakota Supreme Court affirmed the suppression of the act of refusal on the grounds that § 3223-10.1, which allows the introduction of this evidence, violated the federal and state privilege against self-incrimination. [Footnote 5] 312 N.W.2d 723 (1981). The court reasoned that Page 459 U. S. 557 the refusal was a communicative act involving respondent's testimonial capacities, and that the State compelled this communication by forcing respondent "to choose between submitting to a perhaps unpleasant examination and producing Page 459 U. S. 558 testimonial evidence against himself,'" id. at 726 (quoting State v. Andrews, 297 Minn. 260, 262, 212 N.W.2d 863, 864 (1973), cert. denied, 419 U.S. 881 (1974)). [Footnote 6]Since other jurisdictions have found no Fifth Amendment violation from the admission of evidence of refusal to submit to blood alcohol tests, [Footnote 7] we granted certiorari to resolve the conflict. 456 U.S. 971 (1982).IIThe situation underlying this case -- that of the drunk driver -- occurs with tragic frequency on our Nation's highways. The carnage caused by drunk drivers is well documented, and needs no detailed recitation here. This Court, although not having the daily contact with the problem that the state courts have, has repeatedly lamented the tragedy. See Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 439 (1957) ("The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield"); Tate v. Short, 401 U. S. 395, 401 U. S. 401 (1971) (BLACKMUN, J., concurring) (deploring "traffic irresponsibility and the frightful carnage it spews upon our highways"); Perez v. Campbell, 402 U. S. 637, 402 U. S. 657, 402 U. S. 672 (1971) (BLACKMUN, J., concurring) (footnote omitted) ("The slaughter on the highways of this Nation exceeds the death toll of all our Page 459 U. S. 559 wars"); Mackey v. Montrym, 443 U. S. 1, 443 U. S. 17-19 (1979) (recognizing the "compelling interest in highway safety").As part of its program to deter drinkers from driving, South Dakota has enacted an "implied consent" law. S.D. Comp. Laws Ann. § 32-23-10 (Supp.1982). This statute declares that any person operating a vehicle in South Dakota is deemed to have consented to a chemical test of the alcoholic content of his blood if arrested for driving while intoxicated. In Schmerber v. California, 384 U. S. 757 (1966), this Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination, made applicable to the States through the Fourteenth Amendment. [Footnote 8] We recognized that a coerced blood test infringed to some degree the "inviolability of the human personality" and the "requirement that the State procure the evidence against an accused by its own independent labors,'" but noted the privilege has never been given the full scope suggested by the values it helps to protect. Id. at 384 U. S. 762. We therefore held that the privilege bars the State only from compelling "communications" or "testimony." Since a blood test was "physical or real" evidence, rather than testimonial evidence, we found it unprotected by the Fifth Amendment privilege.Schmerber, then, clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test. [Footnote 9] South Dakota, however, has declined to authorize its police officers to administer a blood alcohol test against the suspect's will. Rather, to avoid violent confrontations, the South Dakota statute permits a suspect to Page 459 U. S. 560 refuse the test, and indeed requires police officers to inform the suspect of his right to refuse. S.D.Comp.Laws Ann. § 32-23-10 (Supp.1982). This permission is not without a price, however. South Dakota law authorizes the Department of Public Safety, after providing the person who has refused the test an opportunity for a hearing, to revoke for one year both the person's license to drive and any nonresident operating privileges he may possess. § 32-23-11. Such a penalty for refusing to take a blood alcohol test is unquestionably legitimate, assuming appropriate procedural protections. See Mackey v. Montrym, supra.South Dakota further discourages the choice of refusal by allowing the refusal to be used against the defendant at trial. S.D.Comp.Laws. Ann. §§ 32-23-10.1 and 19-1328.1 (Supp.1982). Schmerber expressly reserved the question of whether evidence of refusal violated the privilege against self-incrimination. 384 U.S. at 384 U. S. 765, n. 9. The Court did indicate that general Fifth Amendment principles, rather than the particular holding of Griffin v. California, 380 U. S. 609 (1966), should control the inquiry. 384 U.S. at 384 U. S. 766, n. 9. [Footnote 10]Most courts applying general Fifth Amendment principles to the refusal to take a blood test have found no violation of the privilege against self-incrimination. Many courts, following the lead of Justice Traynor's opinion for the California Supreme Court in People v. Sudduth, 65 Cal. 2d 543, 421 P.2d 401 (1966), cert. denied, 389 U.S. 850 (1967), have reasoned that refusal to submit is a physical act, rather than a communication, and for this reason is not protected by the Page 459 U. S. 561 privilege. [Footnote 11] As Justice Traynor explained more fully in the companion case of People v. Ellis, 65 Cal. 2d 529, 421 P.2d 393 (1966) (refusal to display voice not testimonial), evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt, such as escape from custody and suppression of evidence. The court below, relying on Dudley v. State, 548 S.W.2d 706 (Tex.Crim.App.1977), and State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419 U.S. 881 (1974), rejected this view. This minority view emphasizes that the refusal is "a tacit or overt expression and communication of defendant's thoughts," 312 N.W.2d at 726, and that the Constitution"simply forbids any compulsory revealing or communication of an accused person's thoughts or mental processes, whether it is by acts, failure to act, words spoken or failure to speak."Dudley, supra, at 708.While we find considerable force in the analogies to flight and suppression of evidence suggested by Justice Traynor, we decline to rest our decision on this ground. As we recognized in Schmerber, the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases. 384 U.S. at 384 U. S. 764. [Footnote 12] The situations arising from a refusal present a difficult Page 459 U. S. 562 gradation from a person who indicates refusal by complete inaction, to one who nods his head negatively, to one who states "I refuse to take the test," to the respondent here, who stated "I'm too drunk, I won't pass the test." Since no impermissible coercion is involved when the suspect refuses to submit to take the test, regardless of the form of refusal, we prefer to rest our decision on this ground, and draw possible distinctions when necessary for decision in other circumstances. [Footnote 13]As we stated in Fisher v. United States, 425 U. S. 391, 425 U. S. 397 (1976),"[t]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of 'physical or moral compulsion' exerted on the person asserting the privilege."This coercion requirement comes directly from the constitutional language directing that no person "shall be compelled in any criminal case to be a witness against himself." U.S.Const., Amdt. 5 (emphasis added). And as Professor Levy concluded in his history of the privilege,"[t]he element of compulsion or involuntariness was always an ingredient of the right and, before the right existed, of protests against incriminating interrogatories."L. Levy, Origins of the Fifth Amendment 328 (1968).Here, the State did not directly compel respondent to refuse the test, for it gave him the choice of submitting to the test or refusing. Of course, the fact the government gives a defendant or suspect a "choice" does not always resolve the Page 459 U. S. 563 compulsion inquiry. The classic Fifth Amendment violation -- telling a defendant at trial to testify -- does not, under an extreme view, compel the defendant to incriminate himself. He could submit to self-accusation, or testify falsely (risking perjury) or decline to testify (risking contempt). But the Court has long recognized that the Fifth Amendment prevents the State from forcing the choice of this "cruel trilemma" on the defendant. See Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55 (1964). See also New Jersey v. Portash, 440 U. S. 450, 440 U. S. 459 (1979) (telling a witness under a grant of legislative immunity to testify or face contempt sanctions is "the essence of coerced testimony"). Similarly, Schmerber cautioned that the Fifth Amendment may bar the use of testimony obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer "confession." 384 U.S. at 384 U. S. 765, n. 9. [Footnote 14] Cf. Miranda v. Arizona, 384 U. S. 436, 384 U. S. 458 (1966) (unless compulsion inherent in custodial surroundings is dispelled, no statement is truly a product of free choice).In contrast to these prohibited choices, the values behind the Fifth Amendment are not hindered when the State offers a suspect the choice of submitting to the blood alcohol test or having his refusal used against him. The simple blood alcohol test is so safe, painless, and commonplace, see Schmerber, 384 U.S. at 384 U. S. 771, that respondent concedes, as he must, that the State could legitimately compel the suspect, against his will, to accede to the test. Given, then, that the offer of taking a blood alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced respondent into choosing the option it had no right to compel, rather than offering a true Page 459 U. S. 564 choice. To the contrary, the State wants respondent to choose to take the test, for the inference of intoxication arising from a positive blood alcohol test is far stronger than that arising from a refusal to take the test.We recognize, of course, that the choice to submit or refuse to take a blood alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices. See, e.g., Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 402 U. S. 213-217 (1971). We hold, therefore, that a refusal to take a blood alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination. [Footnote 15]IIIRelying on Doyle v. Ohio, 426 U. S. 610 (1976), respondent also suggests that admission at trial of his refusal violates the Due Process Clause because respondent was not fully warned of the consequences of refusal. Doyle held that the Due Process Clause prohibits a prosecutor from using a defendant's silence after Miranda warnings to impeach his testimony at trial. Just a Term before, in United States v. Hale, 422 U. S. 171 (1975), we had determined under our supervisory power that the federal courts could not use such silence for impeachment because of its dubious probative value. Although Page 459 U. S. 565 Doyle mentioned this rationale in applying the rule to the States, 426 U.S. at 426 U. S. 617, the Court relied on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Id. at 426 U. S. 618.Unlike the situation in Doyle, we do not think it fundamentally unfair for South Dakota to use the refusal to take the test as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial. First, the right to silence underlying the Miranda warnings is one of constitutional dimension, and thus cannot be unduly burdened. See Miranda, supra, at 384 U. S. 468, n. 37. Cf. Fletcher v. Weir, 455 U. S. 603 (1982) (post-arrest silence without Miranda warnings may be used to impeach trial testimony). Respondent's right to refuse the blood alcohol test, by contrast, is simply a matter of grace bestowed by the South Dakota Legislature.Moreover, the Miranda warnings emphasize the dangers of choosing to speak ("whatever you say can and will be used as evidence against you in court"), but give no warning of adverse consequences from choosing to remain silent. This imbalance in the delivery of Miranda warnings, we recognized in Doyle, implicitly assures the suspect that his silence will not be used against him. The warnings challenged here, by contrast, contained no such misleading implicit assurances as to the relative consequences of his choice. The officers explained that, if respondent chose to submit to the test, he had the right to know the results, and could choose to take an additional test by a person chosen by him. The officers did not specifically warn respondent that the test results could be used against him at trial. [Footnote 16] Explaining the consequences of Page 459 U. S. 566 the other option, the officers specifically warned respondent that failure to take the test could lead to loss of driving privileges for one year. It is true the officers did not inform respondent of the further consequence that evidence of refusal could be used against him in court, [Footnote 17] but we think it unrealistic to say that the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur. Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a "safe harbor," free of adverse consequences.While the State did not actually warn respondent that the test results could be used against him, we hold that such a failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. We therefore conclude that the use of evidence of refusal after these warnings comported with the fundamental fairness required by due process.IVThe judgment of the South Dakota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtSouth Dakota v. Neville, 459 U.S. 553 (1983)South Dakota v. NevilleNo. 81-1453Argued December 8, 1982Decided February 22, 1983459 U.S. 553SyllabusA South Dakota statute permits a person suspected of driving while intoxicated to refuse to submit to a blood alcohol test, but authorizes revocation of the driver's license of a person so refusing the test and permits such refusal to be used against him at trial. When respondent was arrested by police officers in South Dakota for driving while intoxicated, the officers asked him to submit to a blood alcohol test and warned him that he could lose his license if he refused, but did not warn him that the refusal could be used against him at trial. Respondent refused to take the test. The South Dakota trial court granted respondent's motion to suppress all evidence of his refusal to take the blood alcohol test. The South Dakota Supreme Court affirmed on the ground that the statute allowing introduction of evidence of the refusal violated the privilege against self-incrimination.Held:1. The admission into evidence of a defendant's refusal to submit to a blood alcohol test does not offend his Fifth Amendment right against self-incrimination. A refusal to take such a test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination. The offer of taking the test is clearly legitimate, and becomes no less legitimate when the State offers a second option of refusing the test, with the attendant penalties for making that choice. Pp. 459 U. S. 558-564.2. It would not be fundamentally unfair in violation of due process to use respondent's refusal to take the blood alcohol test as evidence of guilt, even though the police failed to warn him that the refusal could be used against him at trial. Doyle v. Ohio, 426 U. S. 610, distinguished. Such failure to warn was not the sort of implicit promise to forgo use of evidence that would unfairly "trick" respondent if the evidence were later offered against him at trial. Pp. 459 U. S. 564-566.312 N.W.2d 723, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 459 U. S. 566. Page 459 U. S. 554

1979_78-1548

MR. JUSTICE STEWART delivered the opinion of the Court.Title VII of the Civil Rights Act of 1964 [Footnote 1] makes unlawful, practices, procedures, or tests that "operate to freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 430. To this rule, § 703(h) of the Act, 42 U.S.C. § 2000e-2(h), provides an exception:"[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race. . . ."In Teamsters v. United States, 431 U. S. 324, 431 U. S. 352, the Court held that"the unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII . . . even where the employer's pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes. [Footnote 2]"The present case concerns the application of § 703(h) to a particular clause in a California brewery industry collective bargaining agreement. That agreement accords greater benefits to "permanent" than to "temporary" employees, and the Page 444 U. S. 601 clause in question provides that a temporary employee must work at least 45 weeks in a single calendar year before he can become a permanent employee. The Court of Appeals for the Ninth Circuit held that the 45-week requirement was not a "seniority system" or part of a "seniority system" within the meaning of § 703(h). 585 F.2d 421. We granted certiorari to consider the important question presented under Title VII of the Civil Rights Act of 1964. 442 U.S. 916.IIn 1973, respondent Bryant (hereafter respondent), a Negro, filed a complaint in the United States District Court for the Northern District of California, on behalf of himself and other similarly situated Negroes, against the California Brewers Association and seven brewing companies (petitioners here), as well as against several unions. The complaint alleged that the defendants had discriminated against the respondent and other Negroes in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and in violation of 42 U.S.C. § 1981. [Footnote 3]The complaint, as amended, alleged that the respondent had been intermittently employed since May, 1968, as a temporary employee of one of the defendants, the Falstaff Brewing Corp. It charged that all the defendant employers had discriminated in the past against Negroes, that the unions had acted in concert with the employers in such discrimination, and that the unions had discriminated in referring applicants from hiring halls to the employers. The complaint further asserted that this historical discrimination was being perpetuated by the seniority and referral provisions of the collective bargaining agreement (Agreement) that governed Page 444 U. S. 602 industrial relations at the plants of the seven defendant employers. In particular, the complaint alleged, the Agreement's requirement that a temporary employee work 45 weeks in the industry in a single calendar year to reach permanent status had, as a practical matter, operated to preclude the respondent and the members of his putative class from achieving, or from a reasonable opportunity of achieving, permanent employee status. [Footnote 4] Finally, the complaint alleged that, on at least one occasion, one of the defendant unions had passed over the respondent in favor of more junior white workers in making referrals to job vacancies at a plant of one of the defendant employers.The Agreement is a multiemployer collective bargaining agreement negotiated more than 20 years ago, and thereafter updated, by the California Brewers Association (on behalf of the petitioner brewing companies) and the Teamsters Brewery and Soft Drink Workers Joint Board of California (on behalf of the defendant unions). The agreement establishes several classes of employees and the respective rights of each with respect to hiring and layoffs. Three of these classes are pertinent here: "permanent," "temporary," and "new" employees.A permanent employee is"any employee . . . who . . . has completeed forty-five weeks of employment under this Agreement in one classification [Footnote 5] in one calendar year as an employee of the brewing industry in [the State of California]."An employee who acquires permanent status retains Page 444 U. S. 603 that status unless he "is not employed under this Agreement for any consecutive period of two (2) years. . . ." [Footnote 6] A temporary employee under the Agreement is"any person other than a permanent employee . . . who worked under this agreement . . . in the preceding calendar year for at least sixty (60) working days. . . ."A new employee is any employee who is not a permanent or temporary employee.The rights of employees with respect to hiring and layoffs depend in substantial part on their status as permanent, temporary, or new employees. [Footnote 7] The Agreement requires that employees at a particular plant be laid off in the following order: new employees in reverse order of their seniority at the plant, temporary employees in reverse order of their plant seniority, and then permanent employees in reverse order of their plant seniority. Once laid off, employees are to be rehired in the reverse order from which they were laid off.The Agreement also gives permanent employees special "bumping" rights. If a permanent employee is laid off at any plant subject to the Agreement, he may be dispatched by the union hiring hall to any other plant in the same local area with the right to replace the temporary or new employee with the lowest plant seniority at that plant.Finally, the Agreement provides that each employer shall obtain employees through the local union hiring hall to fill needed vacancies. The hiring hall must dispatch laid-off workers to such an employer in the following order: first, employees of that employer in the order of their seniority with that employer; second, permanent employees registered in the area in order of their industry seniority; third, temporary employees in the order of their seniority in the industry; and Page 444 U. S. 604 fourth, new employees in the order of their industry seniority. The employer then "shall have full right of selection among" such employees.The District Court granted the defendants' motions to dismiss the complaint for failure to state a claim on which relief could be granted. No opinion accompanied this order. A divided panel of the Court of Appeals reversed, 585 F.2d 421, concluding that the 45-week rule is not a "seniority system" or part of a "seniority system" within the meaning of § 703(h) of Title VII. In the appellate court's view, the provision "lacks the fundamental component of such a system," which is "the concept that employment rights should increase as the length of an employee's service increases." 585 F.2d at 426. The court pointed out that, under the Agreement, some employees in the industry could acquire permanent status after a total of only 45 weeks of work if those weeks were served in one calendar year, while others"could work for many years and never attain permanent status, because they were always terminated a few days before completing 45 weeks of work in any one year."Id. at 426-427.The Court of Appeals concluded that, "while the collective bargaining agreement does contain a seniority system, the 45-week provision is not a part of it." Id. at 427:"The 45-week rule is simply a classification device to determine who enters the permanent employee seniority line, and this function does not make the rule part of a seniority system. Otherwise, any hiring policy (e.g., an academic degree requirement) or classification device (e.g., merit promotion) would become part of a seniority system merely because it affects who enters the seniority line."Id. at 427, n. 11. [Footnote 8] Page 444 U. S. 605 Accordingly, the Court of Appeals remanded the case to the District Court to enable the respondent to prove that the 45-week provision has had a discriminatory impact on Negroes under the standards enunciated in Griggs v. Duke Power Co., 401 U. S. 424. 585 F.2d at 427-428. [Footnote 9]IITitle VII does not define the term "seniority system," and no comprehensive definition of the phrase emerges from the legislative history of § 703(h). [Footnote 10] Moreover, our cases have not purported to delineate the contours of its meaning. [Footnote 11] It is appropriate, therefore, to begin with commonly accepted notions about "seniority" in industrial relations, and to consider those concepts in the context of Title VII and this country's labor policy.In the area of labor relations, "seniority" is a term that connotes length of employment. [Footnote 12] A "seniority system" is a Page 444 U. S. 606 scheme that, alone or in tandem with non-"seniority" criteria, [Footnote 13] allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase. [Footnote 14] Unlike other methods of allocating employment benefits and opportunities, such as subjective evaluations or educational requirements, the principal feature of any and every "seniority system" is that preferential treatment is dispensed on the basis of some measure of time served in employment.Viewed as a whole, most of the relevant provisions of the Agreement before us in this case conform to these core concepts of "seniority." Rights of temporary employees and rights of permanent employees are determined according to length of plant employment in some respects, and according to length of industry employment in other respects. Notwithstanding this fact, the Court of Appeals concluded that the 45-week rule should not be viewed, for purposes of § 703(h), as part of what might otherwise be considered a "seniority system." For the reasons that follow, we hold that this conclusion was incorrect.First, by legislating with respect to "systems" [Footnote 15] of seniority Page 444 U. S. 607 in § 703(h), Congress in 1964 quite evidently intended to exempt from the normal operation of Title VII more than simply those components of any particular seniority scheme that, viewed in isolation, embody or effectuate the principle that length of employment will be rewarded. In order for any seniority system to operate at all, it has to contain ancillary rules that accomplish certain necessary functions, but which may not themselves be directly related to length of employment. [Footnote 16] For instance, every seniority system must include rules that delineate how and when the seniority timeclock begins ticking, [Footnote 17] as well as rules that specify how and when a particular person's seniority may be forfeited. [Footnote 18] Every seniority system must also have rules that define which passages of time will "count" towards the accrual of seniority and which will not. [Footnote 19] Every seniority system must, moreover, contain rules that particularize the types of employment conditions that will be governed or influenced by seniority, and those that will not. [Footnote 20] Rules that serve these necessary purposes Page 444 U. S. 608 do not fall outside § 703(h) simply because they do not, in and of themselves, operate on the basis of some factor involving the passage of time. [Footnote 21]Second, Congress passed the Civil Rights Act of 1964 against the backdrop of this Nation's longstanding labor policy of leaving to the chosen representatives of employers and employees the freedom through collective bargaining to establish conditions of employment applicable to a particular business or industrial environment. See generally Steelworkers v. Weber, 443 U. S. 193. It does not behoove a court to second-guess either that process or its products. Porter Co. v. NLRB, 397 U. S. 99. Seniority systems, reflecting as they do not only the give and take of free collective bargaining, but also the specific characteristics of a particular business or industry, inevitably come in all sizes and shapes. See Ford Motor Co. v. Huffman, 345 U. S. 330; Aeronautical Lodge v. Campbell, 337 U. S. 521. As we made clear in the Teamsters case, seniority may be "measured in a number of ways" and the legislative history of § 703(h) does not suggest that it was enacted to prefer any particular variety of seniority system over any other. 431 U.S. at 431 U. S. 355, n. 41.What has been said does not mean that § 703(h) is to be given a scope that risks swallowing up Title VII's otherwise broad prohibition of "practices, procedures, or tests" that disproportionately affect members of those groups that the Act protects. Significant freedom must be afforded employers and unions to create differing seniority systems. But that freedom must not be allowed to sweep within the ambit of § 703(h) employment rules that depart fundamentally from commonly accepted notions concerning the acceptable contours of a seniority system simply because those rules are dubbed "seniority" provisions or have some nexus to an arrangement that concededly operates on the basis of seniority. Page 444 U. S. 609 There can be no doubt, for instance, that a threshold requirement for entering a seniority track that took the form of an educational prerequisite would not be part of a "seniority system" within the intendment of § 703(h).The application of these principles to the case at hand is straightforward. The Agreement sets out, in relevant part, two parallel seniority ladders. One allocates the benefits due temporary employees; the other identifies the benefits owed permanent employees. The propriety under § 703(h) of such parallel seniority tracks cannot be doubted after the Court's decision in the Teamsters case. The collective bargaining agreement at issue there allotted one set of benefits according to each employee's total service with the company, and another set according to each employee's service in a particular job category. Just as in that case the separation of seniority tracks did not derogate from the identification of the provisions as a "seniority system" under § 703(h), so in the present case the fact that the system created by the Agreement establishes two or more seniority ladders does not prevent it from being a "seniority system" within the meaning of that section.The 45-week rule, correspondingly, serves the needed function of establishing the threshold requirement for entry into the permanent employee seniority track. As such, it performs the same function as did the employment rule in Teamsters that provided that a line driver began to accrue seniority for certain purposes only when he started to work as a line driver, even though he had previously spent years as a city driver for the same employer. In Teamsters, the Court expressed no reservation about the propriety of such a threshold rule for § 703(h) purposes. There is no reason why the 45-week threshold requirement at issue here should be considered any differently.The 45-week rule does not depart significantly from commonly accepted concepts of "seniority." The rule is not an educational standard, an aptitude or physical test, or a standard Page 444 U. S. 610 that gives effect to subjectivity. Unlike such criteria, but like any "seniority" rule, the 45-week requirement focuses on length of employment.Moreover, the rule does not distort the operation of the basic system established by the Agreement, which rewards employment longevity with heightened benefits. A temporary employee's chances of achieving permanent status increase inevitably as his industry employment and seniority accumulate. The temporary employees with the most industry seniority have the first choice of new jobs within the industry available for temporary employees. Similarly, the temporary employees with the most plant seniority have the first choice of temporary employee jobs within their plant, and enjoy the greatest security against "bumping" by permanent employees from nearby plants. As a general rule, therefore, the more seniority a temporary employee accumulates, the more likely it is that he will be able to satisfy the 45-week requirement. That the correlation between accumulated industry employment and acquisition of permanent employee status is imperfect does not mean that the 45-week requirement is not a component of the Agreement's seniority system. Under any seniority system, contingencies such as illnesses and layoffs may interrupt the accrual of seniority and delay realization of the advantages dependent upon it. [Footnote 22]For these reasons, we conclude that the Court of Appeals was in error in holding that the 45-week rule is not a component of a "seniority system" within the meaning of § 703(h) of Title VII of the Civil Rights Act of 1964. In the District Court, the respondent will remain free to show that, in respect to the 45-week rule or in other respects, the seniority Page 444 U. S. 611 system established by the Agreement is not "bona fide," or that the differences in employment conditions that it has produced are "the result of an intention to discriminate because of race."For the reasons stated, the judgment before us is vacated, and the case is remanded to the Court of Appeals for the Ninth Circuit for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCalifornia Brewers Assn. v. Bryant, 444 U.S. 598 (1980)California Brewers Assn. v. BryantNo. 78-1548Argued November 27, 1979Decided February 20, 1980444 U.S. 598SyllabusAs an exception to the rule making it unlawful for an employer to engage in practices, procedures, or tests that operate to "freeze" the status quo of prior discriminatory employment practices, § 703 (h) of Title VII of the Civil Rights Act of 1964 provides that it shall not be an unlawful employment practice for an employer to apply different standards of compensation, terms, conditions, or privileges of employment pursuant to a bona fide seniority system if such differences are not the result of an intention to discriminate because of race. A multiemployer brewery industry collective bargaining agreement accorded greater benefits, with respect to hiring and layoffs, to "permanent" than to "temporary" employees, and provided that a temporary employee must work at least 45 weeks in a single calendar year before he can become a permanent employee. Respondent Bryant (hereafter respondent), a Negro, brought a class action in District Court against petitioner association, petitioner employers, and several labor unions, alleging, inter alia, that the defendants had discriminated against him and other Negroes in violation of Title VII, and, in particular, that the agreement's 45-week requirement had operated to preclude him and the members of his class from achieving, or from a reasonable opportunity of achieving, permanent employee status. The District Court dismissed the complaint for failure to state a claim on which relief could be granted. The Court of Appeals reversed, holding that the 45-week requirement was not a "seniority system" or part of a "seniority system" within the meaning of § 703(h), and accordingly remanded the case to the District Court to enable respondent to prove that such requirement has had a discriminatory impact on Negroes.Held: The Court of Appeals erred in holding that the 45-week requirement is not a component of a "seniority system" within the meaning of § 703(h). The fact that the system created by the agreement establishes two parallel seniority ladders, one allocating benefits due temporary employees and the other identifying the benefits owed permanent employees, does not prevent it from being a "seniority system" within the meaning of § 703(h). The 45-week requirement, correspondingly, serves the needed function of establishing the threshold requirement for entry into the permanent employee seniority track. Cf. 431 U. S. Page 444 U. S. 599 United States, 431 U. S. 324. Unlike such criteria as educational standards, aptitude or physical tests, or standards that give effect to subjectivity, but like any "seniority" rule, the 45-week requirement focuses on length of employment. Moreover, the requirement does not distort the operation of the basic system established by the agreement, which rewards employment longevity with heightened benefits, since, as a general rule, the more seniority a temporary employee accumulates, the more likely it is that he will be able to satisfy the 45-week requirement. Pp. 444 U. S. 605-611.585 F.2d 421, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 444 U. S. 611. POWELL and STEVENS, JJ., took no part in the consideration or decision of the case. Page 444 U. S. 600

1991_91-913

JUSTICE BLACKMUN delivered the opinion of the Court. The Bankruptcy Code excludes from the bankruptcy estate property of the debtor that is subject to a restriction on transfer enforceable under "applicable nonbankruptcy law." 11 U. S. C. § 541(c)(2). We must decide in this case whether an antialienation provision contained in an ERISA-qualified pension plan constitutes a restriction on transfer enforceable under "applicable nonbankruptcy law," and whether, accordingly, a debtor may exclude his interest in such a plan from the property of the bankruptcy estate.IRespondent Joseph B. Shumate, Jr., was employed for over 30 years by Coleman Furniture Corporation, where he ultimately attained the position of president and chairman of the board of directors. Shumate and approximately 400 other employees were participants in the Coleman Furniture Corporation Pension Plan (Plan). The Plan satisfied all applicable requirements of the Employee Retirement Income Security Act of 1974 (ERISA) and qualified for favorable tax treatment under the Internal Revenue Code. In particular, Article 16.1 of the Plan contained the antialienation provision required for qualification under § 206(d)(1) of ERISA, 29 U. S. C. § 1056(d)(1) ("Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated"). App. 342. Shumate's interest in the Plan was valued at $250,000. Id., at 93-94.In 1982, Coleman Furniture filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. The case was converted to a Chapter 7 proceeding, and a trustee, Roy V. Creasy, was appointed. Shumate himself encountered financial difficulties and filed a petition for bankruptcy in 1984. His case, too, was converted to a Chapter 7 proceeding, and petitioner John R. Patterson was appointed trustee.Creasy terminated and liquidated the Plan, providing full distributions to all participants except Shumate. Patterson756then filed an adversary proceeding against Creasy in the Bankruptcy Court for the Western District of Virginia to recover Shumate's interest in the Plan for the benefit of Shumate's bankruptcy estate. Shumate in turn asked the United States District Court for the Western District of Virginia, which already had jurisdiction over a related proceeding, to compel Creasy to pay Shumate's interest in the Plan directly to him. The bankruptcy proceeding subsequently was consolidated with the District Court action. App. to Pet. for Cert. 53a-54a.The District Court rejected Shumate's contention that his interest in the Plan should be excluded from his bankruptcy estate. The court held that § 541(c)(2)'s reference to "nonbankruptcy law" embraced only state law, not federal law such as ERISA. Creasy v. Coleman Furniture Corp., 83 B. R. 404, 406 (1988). Applying Virginia law, the court held that Shumate's interest in the Plan did not qualify for protection as a spendthrift trust. Id., at 406-409. The District Court also rejected Shumate's alternative argument that even if his interest in the Plan could not be excluded from the bankruptcy estate under § 541(c)(2), he was entitled to an exemption under 11 U. S. C. § 522(b)(2)(A), which allows a debtor to exempt from property of the estate "any property that is exempt under Federal law." 83 B. R., at 409-410. The District Court ordered Creasy to pay Shumate's interest in the Plan over to his bankruptcy estate. App. to Pet. for Cert. 54a-55a.The Court of Appeals for the Fourth Circuit reversed. 943 F.2d 362 (1991). The court relied on its earlier decision in In re Moore, 907 F.2d 1476 (1990), in which another Fourth Circuit panel was described as holding, subsequent to the District Court's decision in the instant case, that "ERISA-qualified plans, which by definition have a nonalienation provision, constitute 'applicable nonbankruptcy law' and contain enforceable restrictions on the transfer of pension interests." 943 F. 2d, at 365. Thus, the Court of757Appeals held that Shumate's interest in the Plan should be excluded from the bankruptcy estate under § 541(c)(2). Ibid. The court then declined to consider Shumate's alternative argument that his interest in the Plan qualified for exemption under § 522(b). Id., at 365-366.We granted certiorari, 502 U. S. 1057 (1992), to resolve the conflict among the Courts of Appeals as to whether an antialienation provision in an ERISA-qualified pension plan constitutes a restriction on transfer enforceable under "applicable nonbankruptcy law" for purposes of the § 541(c)(2) exclusion of property from the debtor's bankruptcy estate.1II AIn our view, the plain language of the Bankruptcy Code and ERISA is our determinant. See Toibb v. Radloff, 501 U. S. 157, 160 (1991). Section 541(c)(2) provides the following exclusion from the otherwise broad definition of "property of the estate" contained in § 541(a)(1) of the Code:"A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title." (Emphasis added.)1 Compare In re Harline, 950 F.2d 669 (CAlO 1991) (ERISA antialienation provision constitutes "applicable nonbankruptcy law"), cert. pending, No. 91-1412; Velis v. Kardanis, 949 F.2d 78 (CA3 1991) (same); Shumate v. Patterson, 943 F.2d 362 (CA4 1991) (this case; same); In re Lucas, 924 F.2d 597 (CA6) (same), cert. denied sub nom. Forbes v. Holiday Corp. Savings and Retirement Plan, 500 U. S. 959 (1991); and In re Moore, 907 F.2d 1476 (CA4 1990) (same), with In re Dyke, 943 F.2d 1435 (CA5 1991) (ERISA antialienation provision does not constitute "applicable nonbankruptcy law"); In re Daniel, 771 F.2d 1352 (CA9 1985) (same), cert. denied, 475 U. S. 1016 (1986); In re Lichstrahl, 750 F.2d 1488 (CAll 1985) (same); In re Graham, 726 F.2d 1268 (CA8 1984) (same); and In re Goff, 706 F.2d 574 (CA5 1983) (same).758The natural reading of the provision entitles a debtor to exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law. Nothing in § 541 suggests that the phrase "applicable nonbankruptcy law" refers, as petitioner contends, exclusively to state law. The text contains no limitation on "applicable nonbankruptcy law" relating to the source of the law.Reading the term "applicable nonbankruptcy law" in § 541(c)(2) to include federal as well as state law comports with other references in the Bankruptcy Code to sources of law. The Code reveals, significantly, that Congress, when it desired to do so, knew how to restrict the scope of applicable law to "state law" and did so with some frequency. See, e. g., 11 U. S. C. § 109(c)(2) (entity may be a debtor under chapter 9 if authorized "by State law"); § 522(b)(1) (election of exemptions controlled by "the State law that is applicable to the debtor"); § 523(a)(5) (a debt for alimony, maintenance, or support determined "in accordance with State or territorial law" is not dischargeable); § 903(1) ("[A] State law prescribing a method of composition of indebtedness" of municipalities is not binding on nonconsenting creditors); see also §§ 362(b)(12) and 1145(a). Congress' decision to use the broader phrase "applicable nonbankruptcy law" in § 541(c)(2) strongly suggests that it did not intend to restrict the provision in the manner that petitioner contends.22 The phrase "applicable nonbankruptcy law" appears elsewhere in the Code, and courts have construed those references to include federal law. See, e. g., 11 U. S. C. § 1125(d) (adequacy of disclosure statement not governed by any "otherwise applicable nonbankruptcy law"); In re Stanley Hotel, Inc., 13 B. R. 926, 931 (Bkrtcy. Ct. Colo. 1981) (§ 1125(d) includes federal securities law); 11 U. S. C. § 108(a) (referring to statute of limitations fixed by "applicable nonbankruptcy law"); In re Ahead By a Length, Inc., 100 B. R. 157, 162-163 (Bkrtcy. Ct. SDNY 1989) (§ 108(a) includes Racketeer Influenced and Corrupt Organizations Act); Motor Carrier Audit & Collection Co. v. Lighting Products, Inc., 113 B. R. 424, 425-426 (ND Ill. 1989) (§ 108(a) includes Interstate Commerce Act); 11 U. S. C.759The text of § 541(c)(2) does not support petitioner's contention that "applicable nonbankruptcy law" is limited to state law. Plainly read, the provision encompasses any relevant nonbankruptcy law, including federal law such as ERISA. We must enforce the statute according to its terms. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989).BHaving concluded that "applicable nonbankruptcy law" is not limited to state law, we next determine whether the antialienation provision contained in the ERISA-qualified Plan at issue here satisfies the literal terms of § 541(c)(2).Section 206(d)(1) of ERISA, which states that "[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated," 29 U. S. C. § 1056(d)(1), clearly imposes a "restriction on the transfer" of a debtor's "beneficial interest" in the trust. The coordinate section of the Internal Revenue Code, 26 U. S. C. § 401(a)(13), states as a general rule that "[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated," and thus contains similar restrictions. See also 26 CFR § 1.401(a)-13(b)(1) (1991).Coleman Furniture's pension plan complied with these requirements. Article 16.1 of the Plan specifically stated: "No benefit, right or interest" of any participant "shall be subject§ 108(b) (referring to time for filing pleadings, notices, etc., fixed by "applicable nonbankruptcy law"); Eagle-Picher Industries, Inc. v. United States, 290 U. S. App. D. C. 307, 321-322, 937 F.2d 625, 639-640 (1991) (§ 108(b) includes Federal Tort Claims Act). Although we express no view on the correctness of these decisions, we note that our construction of § 541(c)(2)'s reference to "applicable nonbankruptcy law" as including federal law accords with prevailing interpretations of that phrase as it appears elsewhere in the Code. See Morrison-Knudsen Constr. Co. v. Director, Office of Workers' Compensation Programs, 461 U. S. 624, 633 (1983) (recognizing principle "that a word is presumed to have the same meaning in all subsections of the same statute").760to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, seizure, attachment or other legal, equitable or other process." App. 342.Moreover, these transfer restrictions are "enforceable," as required by § 541(c)(2). Plan trustees or fiduciaries are required under ERISA to discharge their duties "in accordance with the documents and instruments governing the plan." 29 U. S. C. § 1104(a)(1)(D). A plan participant, beneficiary, or fiduciary, or the Secretary of Labor may file a civil action to "enjoin any act or practice" which violates ERISA or the terms of the plan. §§ 1132(a)(3) and (5). Indeed, this Court itself vigorously has enforced ERISA's prohibition on the assignment or alienation of pension benefits, declining to recognize any implied exceptions to the broad statutory bar. See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365 (1990).3The antialienation provision required for ERISA qualification and contained in the Plan at issue in this case thus constitutes an enforceable transfer restriction for purposes of § 541(c)(2)'s exclusion of property from the bankruptcy estate.IIIPetitioner raises several challenges to this conclusion.Given the clarity of the statutory text, however, he bears an "exceptionally heavy" burden of persuading us that Congress intended to limit the § 541(c)(2) exclusion to restrictions on transfer that are enforceable only under state spendthrift trust law. Union Bank v. Wolas, 502 U. S. 151, 155-156 (1991).3 The Internal Revenue Service at least on occasion has espoused the view that the transfer of a beneficiary's interest in a pension plan to a bankruptcy trustee would disqualify the plan from taking advantage of the preferential tax treatment available under ERISA. See McLean v. Central States, Southeast & Southwest Areas Pension Fund, 762 F.2d 1204, 1206 (CA4 1985); see also In re Moore, 907 F. 2d, at 1481.761APetitioner first contends that contemporaneous legislative materials demonstrate that § 541(c)(2)'s exclusion of property from the bankruptcy estate should not extend to a debtor's interest in an ERISA-qualified pension plan. Although courts "appropriately may refer to a statute's legislative history to resolve statutory ambiguity," Toibb v. Radloff, 501 U. S., at 162, the clarity of the statutory language at issue in this case obviates the need for any such inquiry. See ibid.; United States v. Ron Pair Enterprises, Inc., 489 U. S., at 241; Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809,Even were we to consider the legislative materials to which petitioner refers, however, we could discern no "clearly expressed legislative intention" contrary to the result reached above. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). In his brief, petitioner quotes from House and Senate Reports accompanying the Bankruptcy Reform Act of 1978 that purportedly reflect "unmistakable" congressional intent to limit § 541(c)(2)'s exclusion to pension plans that qualify under state law as spendthrift trusts. Brief for Petitioner 38. Those reports contain only the briefest of discussions addressing § 541(c)(2). The House Report states: "Paragraph (2) of subsection (c) ... preserves restrictions on transfer of a spendthrift trust to the extent that the restriction is enforceable under applicable nonbankruptcy law." H. R. Rep. No. 95-595, p. 369 (1977); see also S. Rep. No. 95-989, p. 83 (1978) (§ 541(c)(2) "preserves restrictions on a transfer of a spendthrift trust"). A general introductory section to4 Those Courts of Appeals that have limited "applicable nonbankruptcy law" to state spendthrift trust law by ignoring the plain language of § 541(c)(2) and relying on isolated excerpts from the legislative history thus have misconceived the appropriate analytical task. See, e. g., In re Daniel, 771 F. 2d, at 1359-1360; In re Lichstrahl, 750 F. 2d, at 1490; In re Graham, 726 F. 2d, at 1271-1272; In re Goff, 706 F. 2d, at 581-582.762the House Report contains the additional statement that the new law "continues over the exclusion from property of the estate of the debtor's interest in a spendthrift trust to the extent the trust is protected from creditors under applicable State law." H. R. Rep. No. 95-595, p. 176. These meager excerpts reflect at best congressional intent to include state spendthrift trust law within the meaning of "applicable nonbankruptcy law." By no means do they provide a sufficient basis for concluding, in derogation of the statute's clear language, that Congress intended to exclude other state and federal law from the provision's scope.BPetitioner next contends that our construction of § 541(c)(2), pursuant to which a debtor may exclude his interest in an ERISA-qualified pension plan from the bankruptcy estate, renders § 522(d)(10)(E) of the Bankruptcy Code superfluous. Brief for Petitioner 24-33. Under § 522(d)(10)(E), a debtor who elects the federal exemptions set forth in § 522(d) may exempt from the bankruptcy estate his right to receive "a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract ... , to the extent reasonably necessary for the support of the debtor and any dependent of the debtor." If a debtor's interest in a pension plan could be excluded in full from the bankruptcy estate, the argument goes, then there would have been no reason for Congress to create a limited exemption for such interests elsewhere in the statute.Petitioner's surplusage argument fails, however, for the reason that § 522(d)(10)(E) exempts from the bankruptcy estate a much broader category of interests than § 541(c)(2) excludes. For example, pension plans established by governmental entities and churches need not comply with Subchapter I of ERISA, including the antialienation requirement of § 206(d)(1). See 29 U. S. C. §§ 1003(b)(1) and (2); 26 CFR § 1.401(a)-13(a) (1991). So, too, pension plans that763qualify for preferential tax treatment under 26 U. S. C. § 408 (individual retirement accounts) are specifically excepted from ERISA's antialienation requirement. See 29 U. S. C. § 1051(6). Although a debtor's interest in these plans could not be excluded under § 541(c)(2) because the plans lack transfer restrictions enforceable under "applicable nonbankruptcy law," that interest 5 nevertheless could be exempted under § 522(d)(10)(E).6 Once petitioner concedes that § 522(d)(10)(E)'s exemption applies to more than ERISAqualified plans containing antialienation provisions, see Tr. of Oral Arg. 10-11; Brief for Petitioner 31, his argument that our reading of § 541(c)(2) renders the exemption provision superfluous must collapse.CFinally, petitioner contends that our holding frustrates the Bankruptcy Code's policy of ensuring a broad inclusion of assets in the bankruptcy estate. See id., at 37; 11 U. S. C. § 541(a)(1) (estate composed of "all legal or equitable interests of the debtor in property as of the commencement of the case"). As an initial matter, we think that petitioner5 We express no opinion on the separate question whether § 522(d)(10)(E) applies only to distributions from a pension plan that a debtor has an immediate and present right to receive, or to the entire undistributed corpus of a pension trust. See, e. g., In re Harline, 950 F. 2d, at 675; Velis v. Kardanis, 949 F. 2d, at 81-82. See also Arnopol, Including Retirement Benefits in a Debtor's Bankruptcy Estate: A Proposal for Harmonizing ERISA and the Bankruptcy Code, 56 Mo. L. Rev. 491, 535-536 (1991).6 Even those courts that would have limited § 541(c)(2) to state law acknowledge the breadth of the § 522(d)(10)(E) exemption. See In re Goff, 706 F. 2d, at 587 (noting that § 522(d)(1O)(E) "reaches a broad array of employment benefits, and exempts both qualified and unqualified pension plans") (footnote omitted); In re Graham, 726 F. 2d, at 1272 (observing that "the § 522(d)(10)(E) exemption would apply to non-ERISA plans as well as to qualified ERISA plans"). See also Arnopol, 56 Mo. L. Rev., at 525-526, 552-553; Seiden, Chapter 7 Cases: Do ERISA and the Bankruptcy Code Conflict as to Whether a Debtor's Interest in or Rights Under a Qualified Plan Can be Used to Pay Claims?, 61 Am. Bankr. L. J. 301, 318 (1987).764mistakes an admittedly broad definition of includable property for a "policy" underlying the Code as a whole. In any event, to the extent that policy considerations are even relevant where the language of the statute is so clear, we believe that our construction of § 541(c)(2) is preferable to the one petitioner urges upon us.First, our decision today ensures that the treatment of pension benefits will not vary based on the beneficiary's bankruptcy status. See Butner v. United States, 440 U. S. 48, 55 (1979) (observing that "[u]niform treatment of property interests" prevents "a party from receiving 'a windfall merely by reason of the happenstance of bankruptcy,'" quoting Lewis v. Manufacturers National Bank, 364 U. S. 603, 609 (1961)). We previously have declined to recognize any exceptions to ERISA's antialienation provision outside the bankruptcy context. See Guidry v. Sheet Metal Workers Nat. Pension Fund, 493 U. S. 365 (1990) (labor union may not impose constructive trust on pension benefits of union official who breached fiduciary duties and embezzled funds). Declining to recognize any exceptions to that provision within the bankruptcy context minimizes the possibility that creditors will engage in strategic manipulation of the bankruptcy laws in order to gain access to otherwise inaccessible funds. See Seiden, Chapter 7 Cases: Do ERISA and the Bankruptcy Code Conflict as to Whether a Debtor's Interest in or Rights Under a Qualified Plan Can be Used to Pay Claims?, 61 Am. Bankr. L. J. 301, 317 (1987) (noting inconsistency if "a creditor could not reach a debtor-participant's plan right or interest in a garnishment or other collection action outside of a bankruptcy case but indirectly could reach the plan right or interest by filing a petition ... to place the debtor in bankruptcy involuntarily").Our holding also gives full and appropriate effect to ERISA's goal of protecting pension benefits. See 29 U. S. C. §§ 1001(b) and (c). This Court has described that goal as one765of ensuring 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 benefithe actually will receive it." Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 375 (1980). In furtherance of these principles, we recently declined in Guidry, notwithstanding strong equitable considerations to the contrary, to recognize an implied exception to ERISA's antialienation provision that would have allowed a labor union to impose a constructive trust on the pension benefits of a corrupt union official. We explained:"Section 206(d) reflects a considered congressional policy choice, a decision to safeguard a stream of income for pensioners (and their dependents, who may be, and perhaps usually are, blameless), even if that decision prevents others from securing relief for the wrongs done them. If exceptions to this policy are to be made, it is for Congress to undertake that task." 493 U. S., at 376.These considerations apply with equal, if not greater, force in the present context.Finally, our holding furthers another important policy underlying ERISA: uniform national treatment of pension benefits. See Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987). Construing "applicable nonbankruptcy law" to include federal law ensures that the security of a debtor's pension benefits will be governed by ERISA, not left to the vagaries of state spendthrift trust law.IVIn light of our conclusion that a debtor's interest in an ERISA-qualified pension plan may be excluded from the property of the bankruptcy estate pursuant to § 541(c)(2), we need not reach respondent's alternative argument that766his interest in the Plan qualifies for exemption under § 522(b)(2)(A).The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusPATTERSON, TRUSTEE v. SHUMATECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 91-913. Argued April 20, 1992-Decided June 15, 1992Respondent Shumate was a participant in his employer's pension plan, which contained the antialienation provision required for tax qualification under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court rejected his contention that his interest in the plan should be excluded from his bankruptcy estate under § 541(c)(2) of the Bankruptcy Code, which excludes property of the debtor that is subject to a restriction on transfer enforceable under "applicable nonbankruptcy law." The court held, inter alia, that the latter phrase embraces only state law, not federal law such as ERISA, and that Shumate's interest in the plan did not qualify for protection as a spendthrift trust under state law. The court ordered that Shumate's interest in the plan be paid over to petitioner, as trustee of Shumate's bankruptcy estate. The Court of Appeals reversed, ruling that the interest should be excluded from the bankruptcy estate under § 541(c)(2).Held: The plain language of the Bankruptcy Code and ERISA establishes that an antialienation provision in a qualified pension plan constitutes a restriction on transfer enforceable under "applicable nonbankruptcy law" for purposes of § 541(c)(2). Pp. 757-766.(a) Plainly read, § 541(c)(2) encompasses any relevant nonbankruptcy law, including federal law such as ERISA. The section contains no limitation on "applicable nonbankruptcy law" relating to the source of the law, and its text nowhere suggests that that phrase refers, as petitioner contends, exclusively to state law. Other sections in the Bankruptcy Code reveal that Congress knew how to restrict the scope of applicable law to "state law" and did so with some frequency. Its use of the broader phrase "applicable nonbankruptcy law" strongly suggests that it did not intend to restrict § 541(c)(2) in the manner petitioner contends. Pp. 757-759.(b) The antialienation provision contained in this ERISA-qualified plan satisfies the literal terms of § 541 (c)(2). The sections of ERISA and the Internal Revenue Code requiring a plan to provide that benefits may not be assigned or alienated clearly impose a "restriction on the transfer" of a debtor's "beneficial interest" within § 541 (c)(2)'s meaning, and the terms of the plan provision in question comply with those requirements. Moreover, the transfer restrictions are "enforceable," as754Syllabusrequired by § 541(c)(2), since ERISA gives participants the right to sue to enjoin acts that violate that statute or the plan's terms. Pp.759-760.(c) Given the clarity of the statutory text, petitioner bears an "exceptionally heavy" burden of persuasion that Congress intended to limit the § 541(c)(2) exclusion to restrictions on transfer that are enforceable only under state spendthrift trust law. Union Bank v. Wolas, 502 U. S. 151, 155-156. He has not satisfied that burden, since his several challenges to the Court's interpretation of § 541 (c)(2)-that it is refuted by contemporaneous legislative materials, that it renders superfluous the § 522(d)(1O)(E) debtor's exemption for pension payments, and that it frustrates the Bankruptcy Code's policy of ensuring a broad inclusion of assets in the bankruptcy estate-are unpersuasive. Pp. 760-765.943 F.2d 362, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, post, p. 766.G. Steven Agee argued the cause and filed briefs for petitioner.Kevin R. Huennekens argued the cause for respondent.With him on the brief were Robert A. Lefkowitz and Daniel A. Gecker.Christopher J. Wright argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Bruton, Deputy Solicitor General Mahoney, Gary D. Gray, and Bridget M. Rowan. ** David B. Tatge, pro se, filed a brief of amicus curiae urging reversal.With him on the brief was Dwight D. Meier.Briefs of amici curiae urging affirmance were filed for the American Society of Pension Actuaries by David R. Levin; for the Chamber of Commerce of the United States of America by Stephen A. Bokat, Robin S. Conrad, and Mona C. Zeiberg; for the ERISA Industry Committee et al. by John M. Vine and Thomas M. Christina; for Hallmark Cards, Inc., by M. Theresa Hupp, David C. Trowbridge, and James B. Overman; for Lincoln National Corporation by Brian J. Martin; for Wal-Mart Stores, Inc., et al. by Phillip R. Garrison; and for Ronald J. Wyles et al. by David H. Adams.Briefs of amici curiae were filed for the American College of Trust and Estate Counsel by Alvin J. Golden and C. Wells Hall III; and for Eldon S. Reed by Cathy L. Reece and Gary H. Ashby.755Full Text of Opinion

1976_75-1812

MR. JUSTICE MARSHALL delivered the opinion of the Court.The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions.IAppellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound Corp., a business incorporated under the laws of Delaware with its principal place of business in Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for New Castle County, Del., in which he named as defendants Greyhound, its wholly owned subsidiary Greyhound Lines, Inc., [Footnote 1] and 28 present or former officers or directors of one or Page 433 U. S. 190 both of the corporations. In essence, Heitner alleged that the individual defendants had violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted in the corporation's being held liable for substantial damages in a private antitrust suit [Footnote 2] and a large fine in a criminal contempt action. [Footnote 3] The activities which led to these penalties took place in Oregon.Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the Delaware property of the individual defendants pursuant to Del.Code Ann., Tit. 10, § 366 (1975). [Footnote 4] This motion was accompanied by a supporting Page 433 U. S. 191 affidavit of counsel which stated that the individual defendants were nonresidents of Delaware. The affidavit identified the property to be sequestered as"common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts or credits due or accrued to or for the benefit of any of the said Defendants under any type of written agreement, contract or other legal instrument of any kind whatever between any of the individual Defendants and said corporation."The requested sequestration order was signed the day the motion was filed. [Footnote 5] Pursuant to that order, the sequestrator [Footnote 6] Page 433 U. S. 192 "seized" approximately 82,000 shares of Greyhound common stock belonging to 19 of the defendants, [Footnote 7] and options belonging to another 2 defendants. [Footnote 8] These seizures were accomplished by placing "stop transfer" orders or their equivalents on the books of the Greyhound Corp. So far as the record shows, none of the certificates representing the seized property was physically present in Delaware. The stock was considered to be in Delaware, and so subject to seizure, by virtue of Del.Code Ann., Tit. 8, § 169 (1975), which makes Delaware the situs of ownership of all stock in Delaware corporations. [Footnote 9]All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known addresses and by publication in a New Castle County newspaper. The 21 defendants whose property was seized (hereafter referred to as appellants) responded by entering a special appearance for Page 433 U. S. 193 the purpose of moving to quash service of process and to vacate the sequestration order. They contended that the ex parte sequestration procedure did not accord them due process of law, and that the property seized was not capable of attachment in Delaware. In addition, appellants asserted that, under the rule of International Shoe Co. v. Washington, 326 U. S. 310 (1945), they did not have sufficient contacts with Delaware to sustain the jurisdiction of that State's courts.The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose of the Delaware sequestration procedure:"The primary purpose of 'sequestration' as authorized by 10 Del.C. § 366 is not to secure possession of property pending a trial between resident debtors and creditors on the issue of who has the right to retain it. On the contrary, as here employed, 'sequestration' is a process used to compel the personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity. Sands v. Lefcourt Realty Corp., Del.Super., 117 A.2d 365 (1955). It is accomplished by the appointment of a sequestrator by this Court to seize and hold property of the nonresident located in this State subject to further Court order. If the defendant enters a general appearance, the sequestered property is routinely released, unless the plaintiff makes special application to continue its seizure, in which event the plaintiff has the burden of proof and persuasion."App. 75-76. This limitation on the purpose and length of time for which sequestered property is held, the court concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972); and Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). App. 75-76, 80, 83-85. The court also found no state law or federal constitutional barrier to the sequestrator's reliance on Del.Code Ann., Tit. 8, § 169 Page 433 U. S. 194 (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id. at 85-87.On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery. Greyhound Corp. v. Heitner, 361 A.2d 225 (1976). Most of the Supreme Court's opinion was devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the due process analysis developed in the Sniadach line of cases. The court based its rejection of that argument in part on its agreement with the Court of Chancery that the purpose of the sequestration procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach cases. The court also relied on what it considered the ancient origins of the sequestration procedure and approval of that procedure in the opinions of this Court, [Footnote 10] Delaware's interest in asserting jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards for defendants that it found in the Delaware statute. 361 A.2d at 230-236. Page 433 U. S. 195Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two paragraphs:"There are significant constitutional questions at issue here, but we say at once that we do not deem the rule of International Shoe to be one of them. . . . The reason, of course, is that jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by defendants with this forum. Under 8 Del. C. § 169 the 'situs of the ownership of the capital stock of all corporations existing under the laws of this State . . . [is] in this State,' and that provides the initial basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, . . . it has done so and the presence thereof provides the foundation for § 366 in this case. . . . On this issue, we agree with the analysis made and the conclusion reached by Judge Stapleton in U.S. Industries, Inc. v. Gregg, D.Del., 348 F. Supp. 1004 (1972). [Footnote 11]""We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the prior contacts tests of International Shoe."Id. at 22.We noted probable jurisdiction. 429 U.S. 813. [Footnote 12] We reverse. Page 433 U. S. 196IIThe Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or seizure of property present in the jurisdiction, not on contacts between the defendant and the State, the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This categorical analysis assumes the continued soundness of the conceptual structure founded on the century-old case of Pennoyer v. Neff, 95 U. S. 714 (1878).Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer, the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell. At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon statute allowed service by publication on nonresidents who had property in the State, [Footnote 13] and Mitchell had used that procedure to bring Neff Page 433 U. S. 197 before the court. The United States Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the land to Neff. [Footnote 14] This Court affirmed.Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers. Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found that their jurisdiction was defined by the "principles of public law" that regulate the relationships among independent nations. The first of those principles was "that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." The second was "that no State can exercise direct jurisdiction and authority over persons or property without its territory." Id. at 95 U. S. 722. Thus, "in virtue of the State's jurisdiction over the property of the nonresident situated within its limits," the state courts "can inquire into that nonresident's obligations to its own citizens . . . to the extent necessary to control the disposition of the property." Id. at 95 U. S. 723. The Court recognized that, if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state courts or was personally served within the State, a judgment could affect his interest in property outside the State. But any attempt "directly" to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power. A judgment resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable Page 433 U. S. 198 in other States, [Footnote 15] but was also void in the rendering State because it had been obtained in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 95 U. S. 732-733. See also e.g., Freeman v. Alderson, 119 U. S. 185, 119 U. S. 187-188 (1886).This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based on the State's power over persons within its borders, because Neff had not been personally served in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that, even if Neff had received personal notice of the action, service of process outside the State would have been ineffectual, since the State's power was limited by its territorial boundaries. Moreover, the Court held, the action could not be sustained on the basis of the State's power over property within its borders because that property had not been brought before the court by attachment or any other procedure prior to judgment. [Footnote 16] Since the judgment which authorized the sheriff's sale was therefore invalid, the sale transferred no title. Neff regained his land.From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and corollaries derived from them became the basic elements of the constitutional Page 433 U. S. 199 doctrine governing state court jurisdiction. See, e.g., Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct.Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer, state authority to adjudicate was based on the jurisdiction's power over either persons or property. This fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a court's jurisdiction is based on its authority over the defendant's person, the action and judgment are denominated "in personam," and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property that supports jurisdiction, and does not impose a personal liability on the property owner, since he is not before the court. [Footnote 17] In Pennoyer's terms, the owner is affected only "indirectly" by an in rem judgment adverse to his interest in the property subject to the court's disposition.By concluding that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established," 95 U.S. at 95 U. S. 720, Pennoyer sharply limited the availability of in personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant could not be found in a State, he could not be sued there. On the other hand, since the State in which property Page 433 U. S. 200 was located was considered to have exclusive sovereignty over that property, in rem actions could proceed regardless of the owner's location. Indeed, since a State's process could not reach beyond its borders, this Court held after Pennoyer that due process did not require any effort to give a property owner personal notice that his property was involved in an in rem proceeding. See, e.g., Ballard v. Hunter, 204 U. S. 241 (1907); Arndt v. Griggs, 134 U. S. 316 (1890); Huling v. Kaw Valley R. Co., 130 U. S. 559 (1889). The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a nonresident defendant by bringing into court any property of the defendant located in the plaintiff's State. See, e.g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's L.Rev. 668, 670 (1975). For example, in the well known case of Harris v. Balk, 198 U. S. 215 (1905), Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk, and paid it to Epstein's North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full Faith and Credit Clause, U.S.Const., Art. IV, § 1, required that Harris' payment to Epstein be treated as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an intangible form of property belonging to Balk, and that the location of that property traveled with the debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, 198 U.S. at 198 U. S. 223, and brought it into the Maryland Court. Under the structure established by Pennoyer, Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even though Balk himself was not subject to the jurisdiction Page 433 U. S. 201 of a Maryland tribunal. [Footnote 18] See also e.g., Louisville & N. R. Co. v. Deer, 200 U. S. 176 (1906); Steele v. G. D. Searle & Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958 (1974).Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff's home State even though the defendant could not be served within that State. 95 U.S. at 95 U. S. 733-735. Similarly, the opinion approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State. Id. at 95 U. S. 735-736; See Lafayette Ins. Co. v. French, 18 How. 404 (1856). This Page 433 U. S. 202 basis for in personam jurisdiction over foreign corporations was later supplemented by the doctrine that a corporation doing business in a State could be deemed "present" in the State, and so subject to service of process under the rule of Pennoyer. See, e.g., International Harvester Co. v. Kentucky, 234 U. S. 579 (1914); Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264 (1917). See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv.L.Rev. 909, 919-923 (1960) (hereafter Developments).The advent of automobiles, with the concomitant increase in the incidence of individuals causing injury in States where they were not subject to in personam actions under Pennoyer, required further moderation of the territorial limits on jurisdictional power. This modification, like the accommodation to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois Central R. Co., 346 U. S. 338, 346 U. S. 340-341 (1953). The fiction used was that the out-of-state motorist, who it was assumed could be excluded altogether from the State's highways, had, by using those highways, appointed a designated state official as his agent to accept process. See Hess v. Pawloski, 274 U. S. 352 (1927). Since the motorist's "agent" could be personally served within the State, the state courts could obtain in personam jurisdiction over the nonresident driver.The motorists' consent theory was easy to administer, since it required only a finding that the out-of-state driver had used the State's roads. By contrast, both the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was "doing business" in the forum State. Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy. See, e.g., International Shoe Page 433 U. S. 203 Co. v. Washington, 326 U.S. at 326 U. S. 317-319. While the essentially quantitative tests which emerged from these cases purported simply to identify circumstances under which presence or consent could be attributed to the corporation, it became clear that they were, in fact, attempting to ascertain "what dealings make it just to subject a foreign corporation to local suit." Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged that fact.The question in International Shoe was whether the corporation was subject to the judicial and taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion for the Court began its analysis of that question by noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person. That power, however, was no longer the central concern:"But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463."326 U.S. at 326 U. S. 316. Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on whether the corporation was "present," but on whether there have been"such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there."Id. at 326 U. S. 317. Page 433 U. S. 204 Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the question of reasonableness:"Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations."Id. at 326 U. S. 319. [Footnote 19] Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern of the inquiry into personal jurisdiction. [Footnote 20] The immediate effect of this departure from Pennoyer's conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction over nonresident defendants. See, e.g., Green, Jurisdictional Reform in California, Page 433 U. S. 205 21 Hastings L.J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533; Developments 1000-1008.No equally dramatic change has occurred in the law governing jurisdiction in rem. There have, however, been intimations that the collapse of the in personam wing of Pennoyer has not left that decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions have questioned the proposition that the presence of property in a State gives that State jurisdiction to adjudicate rights to the property regardless of the relationship of the underlying dispute and the property owner to the forum. See, e.g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (CA3 1976) (Gibbons, J., concurring); Camire v. Scieszka, 116 N.H. 281, 358 A.2d 397 (1976); Bekins v. Huish, 1 Ariz.App. 258, 401 P.2d 743 (1965); Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P.2d 960 (1957), appeal dismissed and cert. denied sub nom. Columbia Broadcasting System v. Atkinson, 357 U. S. 569 (1958). The overwhelming majority of commentators have also rejected Pennoyer's premise that a proceeding "against" property is not a proceeding against the owners of that property. Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a State's power to adjudicate in personam should also govern its power to adjudicate personal rights to property located in the State. See, e.g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is This Conflict Really Necessary?, 37 Texas L.Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289 (1956); Developments; Hazard. Page 433 U. S. 206Although this Court has not addressed this argument directly, we have held that property cannot be subjected to a court's judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. Schroeder v. City of New York, 371 U. S. 208 (1962); Walker v. City of Hutchinson, 352 U. S. 112 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse judgment in rem directly affects the property owner by divesting him of his rights in the property before the court. Schroeder v. City of New York, supra at 371 U. S. 213; cf. Continental Grain Co. v. Barge FBL-585, 364 U. S. 19 (1960) (separate actions against barge and barge owner are one "civil action" for purpose of transfer under 28 U.S.C. § 1404(a)). Moreover, in Mullane, we held that Fourteenth Amendment rights cannot depend on the classification of an action as in rem or in personam, since that is"a classification for which the standards are so elusive and confused generally, and which, being primarily for state courts to define, may and do vary from state to state."339 U.S. at 339 U. S. 312.It is clear, therefore, that the law of state court jurisdiction no longer stands securely on the foundation established in Pennoyer. [Footnote 21] We think that the time is ripe to consider whether the standard of fairness and substantial justice set forth in International Shoe should be held to govern actions in rem as well as in personam. Page 433 U. S. 207IIIThe case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that "[t]he phrase, judicial jurisdiction over a thing,' is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of Laws § 56, Introductory Note (1971) (hereafter Restatement). [Footnote 22] This recognition leads to the conclusion that, in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in a thing." [Footnote 23] The standard for determining whether an exercise of jurisdiction over the interests of persons is consistent with the Due Process Clause is the minimum contacts standard elucidated in International Shoe.This argument, of course, does not ignore the fact that the presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, [Footnote 24] it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property Page 433 U. S. 208 located in the State would normally [Footnote 25] indicate that he expected to benefit from the State's protection of his interest. [Footnote 26] The State's strong interests in assuring the marketability of property within its borders [Footnote 27] and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. [Footnote 28] The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant's ownership of the property is conceded, but the cause of action is otherwise related to rights and duties growing out of that ownership. [Footnote 29]It appears, therefore, that jurisdiction over many types of actions which now are or might be brought in rem would not be affected by a holding that any assertion of state court jurisdiction must satisfy the International Shoe standard. [Footnote 30] For the type of quasi in rem action typified by Harris v. Balk and the present case, however, accepting the proposed analysis would result in significant change. These are cases where Page 433 U. S. 209 the property which now serves as the basis for state court jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the presence of the defendant's property in a State might suggest the existence of other ties among the defendant, the State, and the litigation, the presence of the property alone would not support the State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to have jurisdiction could not be brought in that forum.Since acceptance of the International Shoe test would most affect this class of cases, we examine the arguments against adopting that standard as they relate to this category of litigation. [Footnote 31] Before doing so, however, we note that this type of case also presents the clearest illustration of the argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as Harris and this one, the only role played by the property is to provide the basis for bringing the defendant into court. [Footnote 32] Indeed, the express purpose of the Delaware sequestration procedure is to compel the defendant to enter a personal appearance. [Footnote 33] In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible. Page 433 U. S. 210The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied is that a wrongdoer"should not be able to avoid payment of his obligations by the expedient of removing his assets to a place where he is not subject to an in personam suit."Restatement § 66, Comment a. Accord, Developments 955. This justification, however, does not explain why jurisdiction should be recognized without regard to whether the property is present in the State because of an effort to avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At most, it suggests that a State in which property is located should have jurisdiction to attach that property, by use of proper procedures, [Footnote 34] as security for a judgment being sought in a forum where the litigation can be maintained consistently with International Shoe. See, e.g., Von Mehren & Trautman 1178; Hazard 284-285; Beale, supra, n 18, at 123-124. Moreover, we know of nothing to justify the assumption that a debtor can avoid paying his obligations by removing his property to a State in which his creditor cannot obtain personal jurisdiction over him. [Footnote 35] The Full Faith and Credit Clause, after all, makes the valid in personam judgment of one State enforceable in all other States. [Footnote 36] Page 433 U. S. 211It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the International Shoe standard and assures a plaintiff of a forum. [Footnote 37] See Folk & Moyer, supra, n 10, at 749, 767. We believe, however, that the fairness standard of International Shoe can be easily applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high.We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. Although the theory that territorial power is both essential to and sufficient for jurisdiction has been undermined, we have never held that the presence of property in a State does not automatically confer jurisdiction over the owner's interest in that property. [Footnote 38] This history must be Page 433 U. S. 212 considered as supporting the proposition that jurisdiction based solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256 U. S. 94, 256 U. S. 111 (1921), but it is not decisive. "[T]raditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp., 395 U.S. at 395 U. S. 340; Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27 (1949). The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendant.We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. [Footnote 39] Page 433 U. S. 213IVThe Delaware courts based their assertion of jurisdiction in this case solely on the statutory presence of appellants' property in Delaware. Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. Appellants' holdings in Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of that State's courts over appellants. If it exists, that jurisdiction must have some other foundation. [Footnote 40]Appellee Heitner did not allege, and does not now claim, that appellants have ever set foot in Delaware. Nor does he identify any act related to his cause of action as having taken place in Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a corporation chartered in Delaware [Footnote 41] provide sufficient "contacts, ties, or relations," International Shoe Co. v. Washington, 326 U.S. at Page 433 U. S. 214 326 U. S. 319, with that State to give its courts jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily on what Heitner asserts to be the strong interest of Delaware in supervising the management of a Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the corporation and defining the obligations owed to it by its officers and directors. In order to protect this interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries such as appellants.This argument is undercut by the failure of the Delaware Legislature to assert the state interest appellee finds so compelling. Delaware law bases jurisdiction not on appellants' status as corporate fiduciaries, but rather on the presence of their property in the State. Although the sequestration procedure used here may be most frequently used in derivative suits against officers and directors, Hughes Tool Co. v. Fawcett Publications, Inc., 290 A.2d 693, 695 (Del.Ch.1972), the authorizing statute evinces no specific concern with such actions. Sequestration can be used in any suit against a nonresident, [Footnote 42] see, e.g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending, No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra, (same), and reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other property in the State. But as Heitner's failure to secure jurisdiction over seven of the defendants named in his complaint demonstrates, there is no necessary relationship between holding a position as a corporate fiduciary and owning stock or other interests in the corporation. [Footnote 43] If Delaware perceived its interest in securing jurisdiction over corporate fiduciaries Page 433 U. S. 215 to be as great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to protect that interest. Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee has identified may support the application of Delaware law to resolve any controversy over appellants' actions in their capacities as officers and directors. [Footnote 44] But we have rejected the argument that, if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over the parties to that dispute."[The State] does not acquire . . . jurisdiction by being the 'center of gravity' of the controversy, or the most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is resolved in this case by considering the acts of the [appellants]."Hanson v. Denckla, 357 U. S. 235, 357 U. S. 254 (1958). [Footnote 45] Appellee suggests that, by accepting positions as officers or directors of a Delaware corporation, appellants performed the acts required by Hanson v. Denckla. He notes that Delaware law provides substantial benefits to corporate officers and directors, [Footnote 46] and that these benefits were, at least in part, Page 433 U. S. 216 the incentive for appellants to assume their positions. It is, he says, "only fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware when they are accused of misusing their power. Brief for Appellee 15.But, like Heitner's first argument, this line of reasoning establishes only that it is appropriate for Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, supra at 357 U.S. 253, in a way that would justify bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court. Delaware, unlike some States, [Footnote 47] has not enacted a statute that treats acceptance of a directorship as consent to jurisdiction in the State. And"[i]t strains reason . . . to suggest that anyone buying securities in a corporation formed in Delaware 'impliedly consents' to subject himself to Delaware's . . . jurisdiction on any cause of action."Folk & Moyer, supra, n 10, at 785. Appellants, who were not required to acquire interests in Greyhound in order to hold their positions, did not, by acquiring those interests, surrender their right to be brought to judgment only in States with which they had had "minimum contacts."The Due Process Clause"does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations."International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319. Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on Page 433 U. S. 217 state power. The judgment of the Delaware Supreme Court must, therefore, be reversed.It is so ordered

U.S. Supreme CourtShaffer v. Heitner, 433 U.S. 186 (1977)Shaffer v. HeitnerNo. 75-1812Argued February 22, 1977Decided June 24, 1977433 U.S. 186SyllabusAppellee, a nonresident of Delaware, filed a shareholder's derivative suit in a Delaware Chancery Court, naming as defendants a corporation and its subsidiary, as well as 28 present or former corporate officers or directors, alleging that the individual defendants had violated their duties to the corporation by causing it and its subsidiary to engage in actions (which occurred in Oregon) that resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. Simultaneously, appellee, pursuant to Del.Code Ann., Tit. 10, § 366 (1975), filed a motion for sequestration of the Delaware property of the individual defendants, all nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as stock, options, warrants, and various corporate rights of the defendants. A sequestration order was issued pursuant to which shares and options belonging to 21 defendants (appellants) were "seized" and "stop transfer" orders were placed on the corporate books. Appellants entered a special appearance to quash service of process and to vacate the sequestration order, contending that the ex parte sequestration procedure did not accord them due process; that the property seized was not capable of attachment in Delaware; and that they did not have sufficient contacts with Delaware to sustain jurisdiction of that State's courts under the rule of International Shoe Co. v. Washington, 326 U. S. 310. In that case, the Court (after noting that the historical basis of in personam jurisdiction was a court's power over the defendant's person, making his presence within the court's territorial jurisdiction a prerequisite to its rendition of a personally binding judgment against him, Pennoyer v. Neff, 95 U. S. 714) held that that power was no longer the central concern, and that"due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice'"(and thus the focus shifted to the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer had rested). The Court of Chancery, rejecting appellants' arguments, upheld the § 366 procedure of compelling the Page 433 U. S. 187 personal appearance of a nonresident defendant to answer and defend a suit brought against him in a court of equity, which is accomplished by the appointment of a sequestrator to seize and hold the property of the nonresident located in Delaware subject to court order, with release of the property being made upon the defendant's entry of a general appearance. The court held that the limitation on the purpose and length of time for which sequestered property is held comported with due process, and that the statutory situs of the stock (under a provision making Delaware the situs of ownership of the capital stock of all corporations existing under the laws of that State) provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. The Delaware Supreme Court affirmed, concluding that International Shoe raised no constitutional barrier to the sequestration procedure because"jurisdiction under § 366 remains . . . quasi in rem founded on the presence of capital stock [in Delaware], not on prior contact by defendants with this forum."Held:1. Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to the minimum contacts standard of International Shoe Co. v. Washington, supra. Pp. 433 U. S. 207-212.(a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to justify exercising "jurisdiction over the interests of persons in the thing." The presence of property in a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation, as for example, when claims to the property itself are the source of the underlying controversy between the plaintiff and defendant, where it would be unusual for the State where the property is located not to have jurisdiction. Pp. 433 U. S. 207-208.(b) But where, as in the instant quasi in rem action, the property now serving as the basis for state court jurisdiction is completely unrelated to the plaintiff's cause of action, the presence of the property alone, i.e., absent other ties among the defendant, the State, and the litigation, would not support the State's jurisdiction. Pp. 433 U. S. 208-209.(c) Though the primary rationale for treating the presence of property alone as a basis for jurisdiction is to prevent a wrongdoer from avoiding payment of his obligations by removal of his assets to a place where he is not subject to an in personam suit, that is an insufficient justification for recognizing jurisdiction without regard to whether the property is in the State for that purpose. Moreover, the availability of attachment procedures and the protection of the Full Faith and Credit Clause also militate against that rationale. Pp. 433 U. S. 209-210. Page 433 U. S. 188(d) The fairness standard of International Shoe can be easily applied in the vast majority of cases. P. 433 U. S. 211.(e) Though jurisdiction based solely on the presence of property in a State has had a long history, "traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that do not comport with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance Corp, 395 U. S. 337, 395 U. S. 340; Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27. Pp. 433 U. S. 211-212.2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the statutory presence of appellants' property in Delaware, violates the Due Process Clause, which"does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties, or relations."International Shoe, supra at 433 U. S. 319. Pp. 433 U. S. 213-217.(a) Appellants' holdings in the corporation, which are not the subject matter of this litigation and are unrelated to the underlying cause of action, do not provide contacts with Delaware sufficient to support jurisdiction of that State's courts over appellants. P. 433 U. S. 213.(b) Nor is Delaware state court jurisdiction supported by that State's interest in supervising the management of a Delaware corporation and defining the obligations of its officers and directors, since Delaware bases jurisdiction not on appellants' status as corporate fiduciaries, but on the presence of their property in the State. Moreover, sequestration has been available in any suit against a nonresident, whether against corporate fiduciaries or not. Pp. 433 U. S. 213-215.(c) Though it may be appropriate for Delaware law to govern the obligations of appellants to the corporation and stockholders, this does not mean that appellants have "purposefully avail[ed themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357 U. S. 235, 357 U.S. 253. Appellants, who were not required to acquire interests in the corporation in order to hold their positions, did not, by acquiring those interests, surrender their right to be brought to judgment in the States in which they had "minimum contacts." Pp. 433 U. S. 215-216.361 A.2d 225, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined, and in Parts I-III of which BRENNAN, J., joined. POWELL, J., filed a concurring opinion, post, p. 433 U. S. 217. STEVENS, J., filed an opinion concurring in the Page 433 U. S. 189 judgment, post, p. 433 U. S. 217. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 433 U. S. 219. REHNQUIST, J., took no part in the consideration or decision of the case.

1994_93-1525

Kevin T. Baine argued the cause for respondent. With him on the brief were Nicole K. Seligman, Stephen C. Rogers, and Louis R. Cohen. *JUSTICE SCALIA delivered the opinion of the Court.In this case we consider whether actions of the National Railroad Passenger Corporation, commonly known as Amtrak, are subject to the constraints of the Constitution.IPetitioner, Michael A. Lebron, creates billboard displays that involve commentary on public issues, and that seemingly propel him into litigation. See, e. g., Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893 (CADC 1984). In August 1991, he contacted Transportation Displays, Incorporated (TDI), which manages the leasing of the billboards in Amtrak's Pennsylvania Station in New York City, seeking to display an advertisement on a billboard of colossal proportions, known to New Yorkers (or at least to the more Damon Runyonesque among them) as "the Spectacular." The Spectacular is a curved, illuminated billboard, approximately 103 feet long and 10 feet high, which dominates the main entrance to Penn Station's waiting room and ticket area.On November 30, 1992, Lebron signed a contract with TDI to display an advertisement on the Spectacular for two months beginning in January 1993. The contract provided that "[a]ll advertising copy is subject to approval of TDI and [Amtrak] as to character, text, illustration, design and operation." App. 671. Lebron declined to disclose the specific content of his advertisement throughout his negotiations*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Stephen R. Shapiro, Marjorie Heins, and Arthur N Eisenberg; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by James F. Fitzpatrick, Elliot M. Mincberg, and Lawrence S. Ottinger.377with TDI, although he did explain to TDI that it was generally political. On December 2, he submitted to TDI (and TDI later forwarded to Amtrak) an advertisement described by the District Court as follows:"The work is a photomontage, accompanied by considerable text. Taking off on a widely circulated Coors beer advertisement which proclaims Coors to be the 'Right Beer,' Lebron's piece is captioned 'Is it the Right's Beer Now?' It includes photographic images of convivial drinkers of Coors beer, juxtaposed with a Nicaraguan village scene in which peasants are menaced by a can of Coors that hurtles towards them, leaving behind a trail of fire, as if it were a missile. The accompanying text, appearing on either end of the montage, criticizes the Coors family for its support of right-wing causes, particularly the contras in Nicaragua. Again taking off on Coors' advertising which uses the slogan of 'Silver Bullet' for its beer cans, the text proclaims that Coors is 'The Silver Bullet that aims The Far Right's political agenda at the heart of America.'" 811 F. Supp. 993, 995 (SDNY 1993).Amtrak's vice president disapproved the advertisement, invoking Amtrak's policy, inherited from its predecessor as landlord of Penn Station, the Pennsylvania Railroad Company, "that it will not allow political advertising on the [S]pectacular advertising sign." App. 285.Lebron then filed suit against Amtrak and TDI, claiming, inter alia, that the refusal to place his advertisement on the Spectacular had violated his First and Fifth Amendment rights. After expedited discovery, the District Court ruled that Amtrak, because of its close ties to the Federal Government, was a Government actor, at least for First Amendment purposes, and that its rejection of Lebron's proposed advertisement as unsuitable for display in Penn Station had violated the First Amendment. The court granted Lebron an378injunction and ordered Amtrak and TDI to display Lebron's advertisement on the Spectacular.The United States Court of Appeals for the Second Circuit reversed. 12 F.3d 388 (1993). The panel's opinion first noted that Amtrak was, by the terms of the legislation that created it, not a Government entity, id., at 390; and then concluded that the Federal Government was not so involved with Amtrak that the latter's decisions could be considered federal action, id., at 391-392. Chief Judge Newman dissented. We granted certiorari. 511 U. S. 1105 (1994).IIWe have held once, Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), and said many times, that actions of private entities can sometimes be regarded as governmental action for constitutional purposes. See, e. g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 546 (1987); Blum v. Yaretsky, 457 U. S. 991, 1004 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972). It is fair to say that "our cases deciding when private action might be deemed that of the state have not been a model of consistency." Edmonson v. Leesville Concrete Co., 500 U. S. 614, 632 (1991) (O'CONNOR, J., dissenting). It may be unnecessary to traverse that difficult terrain in the present case, since Lebron's first argument is that Amtrak is not a private entity but Government itself. Before turning to the merits of this argument, however, it is necessary to discuss the propriety of reaching it. Lebron did not raise this point below; indeed, he expressly disavowed it in both the District Court and the Court of Appeals. See Plaintiff's Pre-Trial Proposed Conclusions of Law in No. 92-CIV-9411 (SDNY), p. 12, n. 1, reprinted in App. in No. 93-7127 (CA2), p. 1297; Brief for Appellee in No. 93-7127 (CA2), p. 30, n. 39. In those courts Lebron argued that Amtrak's actions were subject to constitutional requirements because Amtrak, al-379though a private entity, was closely connected with federal entities. It was not until after we granted certiorari that Lebron first explicitly presented-in his brief on the merits-the alternative argument that Amtrak was itself a federal entity.Our traditional rule is that "[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below." Yee v. Escondido, 503 U. S. 519, 534 (1992); see also Dewey v. Des Moines, 173 U. S. 193, 198 (1899). Lebron's contention that Amtrak is part of the Government is in our view not a new claim within the meaning of that rule, but a new argument to support what has been his consistent claim: that Amtrak did not accord him the rights it was obliged to provide by the First Amendment. Cf. Yee, supra, at 534-535. In fact, even if this were a claim not raised by petitioner below, we would ordinarily feel free to address it, since it was addressed by the court below. Our practice "permit[s] review of an issue not pressed so long as it has been passed upon .... " United States v. Williams, 504 U. S. 36, 41 (1992). See Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1099, n. 8 (1991); Stevens v. Department of Treasury, 500 U. S. 1, 8 (1991).Respondent asserts that, in addition to not having been raised below, the issue of whether Amtrak is a Government entity was not presented in the petition for certiorari. As this Court's Rule 14.1(a) and simple prudence dictate, we will not reach questions not fairly included in the petition. "The Court decides which questions to consider through wellestablished procedures; allowing the able counsel who argue before us to alter these questions or to devise additional questions at the last minute would thwart this system." Taylor v. Freeland & Kronz, 503 U. S. 638, 646 (1992). Here, however, we are satisfied that the argument that Amtrak is a Government entity is fairly embraced within the question380set forth in the petition for certiorari l-which explicitly presents neither the "Government entity" theory nor the "closely connected to Government" theory of First Amendment application, but rather the facts that would support both. The argument in the petition, moreover, though couched in terms of a different but closely related theory, fairly embraced the argument that Lebron now advances. See Pet. for Cert. 16-18.The dissent contends that the "Government entity" question in the present case occupies the same status, insofar as Rule 14.1(a) is concerned, as the "physical taking" question which we deemed excluded in Yee v. Escondido, supra. It gives two reasons for that equivalence: First, the fact that Lebron prefaced his question presented by the phrase, "Whether the court of appeals erred in holding." App. to Pet. for Cert. i. The dissent asserts that this is similar to the preface in Yee, which had the effect of limiting the question to the precise ground relied upon by the Court of Appeal. Post, at 402. But the preface in Yee was not at all similar. What we said caused the question presented to be limited to the physical-taking issue was not the fact that that was the only ground addressed by the lower-court-said-tobe-in-error; but rather the fact that that was the only ground of decision in two previous Court of Appeals cases, departure1 Certiorari was sought and granted in this case on the following question:"Whether the court of appeals erred in holding that Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action, where:"(a) the United States created Amtrak, endowed it with governmental powers, owns all its voting stock, and appoints all members of its Board; "(b) the United States-appointed Board approved the advertising policy challenged here;"(c) the United States keeps Amtrak afloat every year by subsidizing its losses; and"(d) Pennsylvania Station was purchased for Amtrak by the United States and is shared with several other governmental entities."381from which was said by the question presented to be the issue in the appeal.2 503 U. S., at 536-537.The dissent's second reason for believing that Yee governs the Rule 14.1(a) issue here is that the structural relationship between the clearly presented question and the assertedly included question in the two cases is the same. As the dissent correctly analyzes Yee, it involved one "umbrella claim" (government taking of property without just compensation) and "two distinct questions" that were "[s]ubsidiary to that claim" (whether a physical taking had occurred, and whether a regulatory taking had occurred). Post, at 401. But the questions in Yee were "distinct" in two important ways that the claims here are not. First of all, it was possible to consider the existence of a physical taking without assuming (as one of the premises of the inquiry) the nonexistence of a regulatory taking; whereas here it is quite impossible to consider whether the Government connections are sufficient to convert private-entity Amtrak into a Government actor without first assuming that Amtrak is a private entity. The opinion in Yee did not have to begin: "Assuming that no regulatory taking has occurred, .... " But the portion of today's dissent addressing the merits of this case must begin:"Accepting Lebron's concession that Amtrak is a private entity, .... " Post, at 408. The question of private-entity status is, in other words, a prior question. The second respect in which the issues here are less "distinct" than in Yee is that the factors relevant to their resolution overlap. In Yee, what would go to show a regulatory taking and2 The question presented in Yee read as follows:"'Two federal courts of appeal have held that the transfer of a premium value to a departing mobilehome tenant, representing the value of the right to occupy at a reduced rate under local mobilehome rent control ordinances, constitute[s] an impermissible taking. Was it error for the state appellate court to disregard the rulings and hold that there was no taking under the fifth and fourteenth amendments?'" 503 U. S., at 536-537.382what would go to show a physical taking were quite different. Here, however, those very elements that we would be considering in determining whether Amtrak-theprivate-entity is so closely connected with the Government as to be a Government actor (for example, the constitution of its board) also bear upon whether it is in fact a private entity at all. When a question is, like this one, both prior to the clearly presented question and dependent upon many of the same factual inquiries, refusing to regard it as embraced within the petition may force us to assume what the facts will show to be ridiculous, a risk that ought to be avoided.The recent decision of ours that invites comparison with the dissent's insistence that the "Government entity" question is "precluded," post, at 400, is not Yee, but United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 (1993). There, in a case raising the question of the proper interpretation of 12 U. S. C. § 92 (1926 ed.), we upheld the propriety of the Court of Appeals' considering the prior question whether 12 U. S. C. § 92 had been inadvertently repealed-even though the parties themselves had failed to raise that question, not only (as here) in the court below, but even in the initial briefs and oral arguments before the Court of Appeals itself. That is to say, the situation there, at the court of appeals level, was what the situation would be before us here, if (1) the dissent were correct that Rule 14.1(a) was not complied with, and (2) in addition, even the petitioner's principal brief and oral argument had failed to raise the "Government entity" issue. Even so, we held in Independent Insurance Agents that it was proper for the Court of Appeals to request supplemental briefing upon, and to decide, the statutory repeal question, and we then went on to inquire into that question ourselves. Our opinion was unanimous, not a single Justice protesting that the judges of the Court of Appeals, or of this Court, had constituted383themselves" 'as [a] self-directed boar[d] of legal inquiry'" or had "exhibit[ed] little patience," post, at 408.3IIIBefore proceeding to consider Lebron's contention that Amtrak, though nominally a private corporation, must be regarded as a Government entity for First Amendment purposes, we examine the nature and history of Amtrak and of Government-created corporations in general.ACongress established Amtrak in order to avert the threatened extinction of passenger trains in the United States.3 The dissent sees no more in Independent Ins. Agents than a narrow holding that the Court of Appeals' decision to reach the statutory repeal issue was not so imprudent as to be reversible for abuse of discretion. Even that is a damaging concession, given the dissent's apparent position that allowing a litigant "to resuscitate [a] claim that he himself put to rest" always violates "prudential" rules. Post, at 406. But in fact the language of the Independent Ins. Agents opinion is much more approving of the Court of Appeals' action than that. It declines even to brush aside the Court of Appeals' (questionable) contention that there was "a 'duty' to address the status of section 92," saying only that "[w]e need not decide" that question. 508 U. S., at 448. And it goes on to state that the Court of Appeals acted "without any impropriety," and that its decision to consider the issue was "certainly no abuse of its discretion." Ibid. (emphasis added). If we had not thought that the Court of Appeals' entertainment of the statutory repeal question was, not merely unreversible, but appropriate, we would not have rendered ourselves complicit in the enterprise by exercising our own discretion to grant certiorari on that question. (There was no particular need to intervene, since the Court of Appeals had upheld the law.)The dissent also seeks to characterize Independent Ins. Agents as no more than an application of "the traditional principle that there can be no estoppel in the way of ascertaining the existence of a law." Post, at 404 (internal quotation marks omitted). It was indeed an application of that principle insofar as concerned the claim that the appellants' right to assert repeal of the statute had been forfeited. But forfeit was not the only point decided in the case: not every nonforfeited claim merits consideration on appeal.384The statute that created it begins with the congressional finding, redolent of provisions of the Interstate Commerce Act, see, e. g., 49 U. S. C. §§ 10901, 10903, 10922 (1988 ed. and Supp. V), that "the public convenience and necessity require the continuance and improvement" of railroad passenger service. Rail Passenger Service Act of 1970 (RPSA), § 101, 84 Stat. 1328 (emphasis added). In the current version of the RPSA, 45 U. S. C. § 501 et seq. (1988 ed. and Supp. V), the congressional findings are followed by a section entitled "Goals," which begins, "The Congress hereby establishes the following goals for Amtrak," and includes items of such detail as the following:"(3) Improvement of the number of passenger miles generated systemwide per dollar of Federal funding by at least 30 percent within the two-year period beginning on October 1, 1981."(4) Elimination of the deficit associated with food and beverage services by September 30, 1982."(6) Operation of Amtrak trains, to the maximum extent feasible, to all station stops within 15 minutes of the time established in public timetables for such operation."(8) Implementation of schedules which provide a systemwide average speed of at least 60 miles per hour .... " § 501a.Later sections of the statute authorize Amtrak's incorporation, §§ 541-542, set forth its structure and powers, §§ 543545, and outline procedures under which Amtrak will relieve private railroads of their passenger-service obligations and provide intercity and commuter rail passenger service itself, §§ 561-566. See generally National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451, 453-456 (1985). As initially conceived, Amtrak was to be385"a for profit corporation," 84 Stat. 1330, but Congress later modified this language to provide, less optimistically perhaps, that Amtrak "shall be operated and managed as a for profit corporation," § 541.Amtrak is incorporated under the District of Columbia Business Corporation Act, D. C. Code Ann. § 29-301 et seq. (1981 and Supp. 1994), but is subject to the provisions of that Act only insofar as the RPSA does not provide to the contrary, see § 541. It does provide to the contrary with respect to many matters of structure and power, including the manner of selecting the company's board of directors. The RPSA provides for a board of nine members, six of whom are appointed directly by the President of the United States. The Secretary of Transportation, or his designee, sits ex officio. § 543(a)(1)(A). The President appoints three more directors with the advice and consent of the Senate, § 543(a)(1)(C), selecting one from a list of individuals recommended by the Railway Labor Executives Association, § 543(a)(1)(C)(i), one "from among the Governors of States with an interest in rail transportation," § 543(a)(1)(C)(ii), and one as a "representative of business with an interest in rail transportation," § 543(a)(1)(C)(iii). These directors serve 4-year terms. § 543(a)(2)(A). The President appoints two additional directors without the involvement of the Senate, choosing them from a list of names submitted by various commuter rail authorities. § 543(a)(1)(D). These directors serve 2-year terms. § 543(a)(2)(B). The holders of Amtrak's preferred stock select two more directors, who serve i-year terms. § 543(a)(1)(E). Since the United States presently holds all of Amtrak's preferred stock, which it received (and still receives) in exchange for its subsidization of Amtrak's perennial losses, see § 544(c), the Secretary of Transportation selects these two directors. The ninth member of the board is Amtrak's president, § 543(a)(1)(B), who serves as the chairman of the board, § 543(a)(4), is selected by the other eight directors, and serves at their pleasure, § 543(d).386Amtrak's four private shareholders have not been entitled to vote in selecting the board of directors since 1981.4By § 548 of the RPSA, Amtrak is required to submit three different annual reports to the President and Congress. One of these, a "report on the effectiveness of this chapter in meeting the requirements for a balanced national transportation system, together with any legislative recommendations," is made part of the Department of Transportation's annual report to Congress. § 548(c).BAmtrak is not a unique, or indeed even a particularly unusual, phenomenon. In considering the question before us, it is useful to place Amtrak within its proper context in the long history of corporations created and participated in by the United States for the achievement of governmental objectives.The first was the Bank of the United States, created by the Act of Feb. 25, 1791, ch. 10, 1 Stat. 191, which authorized the United States to subscribe 20 percent of the corporation's stock, id., at 196. That Bank expired pursuant to the terms of its authorizing Act 20 years later. A second Bank of the United States, the bank of McCulloch v. Maryland, 4 Wheat. 316 (1819), and Osborn v. Bank of United States, 9 Wheat. 738 (1824), was incorporated by the Act of April 10, 1816, 34 Originally, Amtrak's board comprised 15 directors: 7 selected by the shareholders and 8 (one of whom had to be the Secretary of Transportation) appointed by the President of the United States. See RPSA §§ 303(a) and (c), 84 Stat. 1330-1331. In 1973, Congress increased the number of directors to 17, the number of Presidential appointees to 9, and made the Secretary of Transportation a director ex officio. See Amtrak Improvement Act of 1973, § 3(a), 87 Stat. 548. In 1976, the number of Presidential appointees (apart from the Secretary of Transportation) was reduced to eight and Amtrak's president made a director ex officio. See Rail Transportation Improvement Act, § 103, 90 Stat. 2615. Amtrak's board was given its current size and membership in 1981. See Omnibus Budget Reconciliation Act of 1981, § 1174,95 Stat. 689.387Stat. 266, which provided that the United States would subscribe 20 percent of the Bank's capital stock, ibid., and in addition that the President would appoint, by and with the advice and consent of the Senate, 5 of the Bank's 25 directors, the rest to be elected annually by shareholders other than the United States, id., at 269.The second Bank's charter expired of its own force, despite fierce efforts by the Bank's supporters to renew it, in 1836. See generally R. Remini, Andrew Jackson and the Bank War 155-175 (1967). During the remainder of the 19th century, the Federal Government continued to charter private corporations, see, e. g., Act of July 2, 1864, 13 Stat. 365 (Northern Pacific Railroad Company), but only once participated in such a venture itself: the Union Pacific Railroad, chartered in 1862 with the specification that two of its directors would be appointed by the President of the United States. Act of July 1, 1862, § 1, 12 Stat. 491. See F. Leazes, Jr., Accountability and the Business State 117, n. 8 (1987) (hereinafter Leazes).The Federal Government's first participation in a corporate enterprise in which (as with Amtrak) it appointed a majority of the directors did not occur until the present century. In 1902, to facilitate construction of the Panama Canal, Congress authorized the President to purchase the assets of the New Panama Canal Company of France, including that company's stock holdings in the Panama Railroad Company, a private corporation chartered in 1849 by the State of New York. See Act of June 28, 1902, 32 Stat. 481; see also General Accounting Office, Reference Manual of Government Corporations, S. Doc. No. 86, 79th Cong., 1st Sess., 176 (1945) (hereinafter GAO Corporation Manual). The United States became the sole shareholder of the Panama Railroad, and continued to operate it under its original charter, with the Secretary of War, as the holder of the stock, electing the Railroad's 13 directors. Id., at 177; Joint Committee on Reduction of Nonessential Federal Expenditures, Reduction of Nonessential Federal Expenditures, S. Doc. No. 227,38878th Cong., 2d Sess., 20 (1944) (hereinafter Reduction of Expenditures).The first large-scale use of Government-controlled corporations came with the First World War. In 1917 and 1918, Congress created, among others, the United States Grain Corporation, the United States Emergency Fleet Corporation, the United States Spruce Production Corporation, and the War Finance Corporation. See Leazes 20. These entities were dissolved after the war ended. See Reduction of Expenditures 1.The Great Depression brought the next major group of Government corporations, which proved to be more enduring. These were primarily directed to stabilizing the economy and to making distress loans to farms, homeowners, banks, and other enterprises. See R. Moe, CRS Report for Congress, Administering Public Functions at the Margins of Government: The Case of Federal Corporations 6-7 (1983). The Reconstruction Finance Corporation (RFC), to take the premier example, was initially authorized to make loans to banks, insurance companies, railroads, land banks, and agricultural credit organizations, including loans secured by the assets of failed banks. See Act of Jan. 22, 1932, § 5, 47 Stat. 6-7. The Federal Deposit Insurance Corporation (FDIC), was established to hold and liquidate the assets of failed banks, and to insure bank deposits. See Act of June 16, 1933, ch. 89, § 8, 48 Stat. 168, as amended, 12 U. S. C. § 1811 et seq. (1988 ed. and Supp. V). And a few corporations, such as the Tennessee Valley Authority (TVA), brought the Government into the commercial sale of goods and services. See Act of May 18, 1933, ch. 32, 48 Stat. 58, as amended, 16 U. S. C. § 831 et seq. (1988 ed. and Supp. V).The growth of federal corporations during the Depression and the World War II era was not limited to the numerous entities specifically approved by Congress. In 1940, Congress empowered the RFC to create corporations without specific congressional authorization. See Act of June 25,3891940, §5, 54 Stat. 573-574. The RFC proceeded to do so with gusto, incorporating on its own the Defense Plant Corporation, the Defense Supplies Corporation, the Metals Reserve Company (which itself created several subsidiaries), the Petroleum Reserves Corporation, the Rubber Development Corporation, and the War Damage Corporation, among others. See GAO Corporation Manual 32, 38, 169, 182, 219, 279. Other corporations were formed, sometimes under state law, without even the general congressional authorization granted the RFC. For example, the Defense Homes Corporation was organized under Maryland law by the Secretary of the Treasury, using emergency funds allocated to the President, id., at 28 ("It is not clear what, if any, specific Federal statutory authority was relied upon for the creation of the Defense Homes Corporation"); and the Tennessee Valley Associated Cooperatives, Inc., was chartered under Tennessee law by the TVA, id., at 244 ("There has been found no Federal statute specifically authorizing the Board of Directors of the Tennessee Valley Authority to organize a corporation"). By 1945, the General Accounting Office's Reference Manual of Government Corporations listed 58 government corporations, with total assets (in 1945 dollars) of $29.6 billion. See id., at iii, v-vi.By the end of World War II, Government-created and -controlled corporations had gotten out of hand, in both their number and their lack of accountability. Congress moved to reestablish order in the Government Corporation Control Act (GCCA), 59 Stat. 597, as amended, 31 U. S. C. § 9101 et seq. (1988 ed. and Supp. V). See Pritchett, The Government Corporation Control Act of 1945, 40 Am. Pol. Sci. Rev. 495 (1946). The GCCA required that specified corporations, both wholly owned and partially owned by the Government, be audited by the Comptroller General. See 59 Stat. 599, 600. Additionally, the wholly owned corporations were required, for the first time, to submit budgets which would be included in the budget submitted annually to Congress by390the President. Id., at 598; see also Leazes 22-23. The GCCA also ordered the dissolution or liquidation of all government corporations created under state law, except for those that Congress should act to reincorporate; and prohibited creation of new Government corporations without specific congressional authorization. 59 Stat. 602; cf. 31 U. S. C. § 9102.Thus, in the years immediately following World War II, many Government corporations were dissolved, and to our knowledge only one, the Saint Lawrence Seaway Development Corporation, was created. See Leazes 25, 27. In the 1960's, however, the allure of the corporate form was felt again, and new entities proliferated. Many of them followed the traditional model, often explicitly designated as Government agencies and located within the existing Government structure. See, e. g., Foreign Assistance Act of 1969, § 105, 83 Stat. 809 (creating the Overseas Private Investment Corporation as "an agency of the United States under the policy guidance of the Secretary of State"), as amended, 22 U. S. C. § 2191 et seq. (1988 ed. and Supp. V). Beginning in 1962, however, the Government turned to sponsoring corporations that it specifically designated not to be agencies or establishments of the United States Government, and declined to subject to the control mechanisms of the GCCA. The first of these, the Communications Satellite Corporation (Comsat), was incorporated under the District of Columbia Business Corporation Act, D. C. Code Ann. § 29-301 et seq. (1981 and Supp. 1994), see 47 U. S. C. § 731 et seq., with the purpose of entering the private sector, but doing so with Governmentconferred advantages, see Moe, supra, at 22. Comsat was capitalized entirely with private funds. See Seidman, Government-sponsored Enterprise in the United States, in The New Political Economy: The Public Use of the Private Sector 92 (B. Smith ed. 1975). In contrast to the corporations that had in the past been deemed part of the Government, Comsat's board was to be controlled by its private391shareholders; only 3 of its 15 directors were appointed by the President, § 733(a).The Comsat model, which was seen as allowing the Government to act unhindered by the restraints of bureaucracy and politics, see Moe, CRS Report, at 22, 24, was soon followed in creating other corporations. But some of these new "private" corporations, though said by their charters not to be agencies or instrumentalities of the Government, see, e. g., 47 U. S. C. § 396(b) (Corporation for Public Broadcasting (CPB)); 42 u. S. C. § 2996d(e)(1) (Legal Services Corporation (LSC)), and though not subjected to the restrictions of the GCCA, were (unlike Comsat) managed by boards of directors on which Government appointees had not just a few votes but voting control. See Public Broadcasting Act of 1967, § 201, 81 Stat. 369 (CPB's entire board appointed by President); Legal Services Corporation Act of 1974, § 2, 88 Stat. 379 (same for LSC).Amtrak is yet another variation upon the Comsat theme.Like Comsat, CPB, and LSC, its authorizing statute declares that it "will not be an agency or establishment of the United States Government." 84 Stat. 1330; see 45 U. S. C. § 541. Unlike Comsat, but like CPB and LSC, its board of directors is controlled by Government appointees. And unlike all three of those "private" corporations, it has been added to the list of corporations covered by the GCCA, see 31 U. S. C. § 9101 (1988 ed. and Supp. V). As one perceptive observer has concluded with regard to the post-Comsat Governmentsponsored "private" enterprises:"There is no valid basis for distinguishing between many government-sponsored enterprises and other types of government activities, except for the fact that they are designed [designated?] by law as 'not an agency and instrumentality of the United States Government.' Comparable powers and immunities could be granted to such agencies without characterizing them as nongovernment." Seidman, supra, at 93.392IVAmtrak claims that, whatever its relationship with the Federal Government, its charter's disclaimer of agency status prevents it from being considered a Government entity in the present case. This reliance on the statute is misplaced. Section 541 is assuredly dispositive of Amtrak's status as a Government entity for purposes of matters that are within Congress's control-for example, whether it is subject to statutes that impose obligations or confer powers upon Government entities, such as the Administrative Procedure Act, 5 U. S. C. § 551 et seq. (1988 ed. and Supp. V), the Federal Advisory Committee Act, 5 U. S. C. App. § 1 et seq., and the laws governing Government procurement, see 41 U. S. C. § 5 et seq. (1988 ed. and Supp. V). And even beyond that, we think § 541 can suffice to deprive Amtrak of all those inherent powers and immunities of Government agencies that it is within the power of Congress to eliminate. We have no doubt, for example, that the statutory disavowal of Amtrak's agency status deprives Amtrak of sovereign immunity from suit, see Sentner v. Amtrak, 540 F. Supp. 557, 560 (NJ 1982), and of the ordinarily presumed power of Government agencies authorized to incur obligations to pledge the credit of the United States, see, e. g., Debt Obligations of Nat. Credit Union Admin., 6 Op. Off. Legal Counsel 262, 264 (1982). But it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions. If Amtrak is, by its very nature, what the Constitution regards as the Government, congressional pronouncement that it is not such can no more relieve it of its First Amendment restrictions than a similar pronouncement could exempt the Federal Bureau of Investigation from the Fourth Amendment. The Constitution constrains governmental action "by whatever instruments or in whatever modes that action may be taken." Ex parte Virginia, 100 U. S. 339, 346-347 (1880). And under whatever congres-393sionallabel. As we said of the Reconstruction Finance Corporation in deciding whether debts owed it were owed the United States Government: "That the Congress chose to call it a corporation does not alter its characteristics so as to make it something other than what it actually is .... " Cherry Cotton Mills, Inc. v. United States, 327 U. S. 536, 539 (1946).Amtrak points to two of our opinions that characterize Amtrak as a nongovernmental entity. The first is National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 410 (1992), which describes the corporation as "not an agency or instrumentality of the United States Government." But the governmental or nongovernmental nature of Amtrak had no conceivable relevance to the issues before the Court in Boston & Maine. The quoted characterization, similar to that contained in the statute, was merely set forth at the beginning of the opinion, in describing the factual background of the case. It is hard to imagine weaker dictum.The second case is National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451 (1985). There the governmental character of Amtrak was marginally relevant. The railroads opposing Amtrak in the case argued that a subsequent statute reneging on the Government's own obligations was subject to a "more rigorous standard of review" under the Due Process Clause than a statute impairing private contractual obligations. Id., at 471. The Court said it did not have to consider that question because the contracts in question were "not between the railroads and the United States but simply between the railroads and the nongovernmental corporation, Amtrak." Id., at 470. But it develops, later in the opinion, that the Court would not have had to consider that question anyway, since it concluded that the contracts (whether those of the United States or not) did not incur the obligation alleged. The effect of the apparent reliance upon Amtrak's nongov-394ernmental character was at most to enable the Court to make, later in the opinion, without applying the "more rigorous standard" urged by the railroads, the superfluous argument that "[e]ven were the Court of Appeals correct that the railroads have a private contractual right ... we disagree with the Court of Appeals' conclusion that the Due Process Clause limited Congress' power to [affect that right as it did]." Id., at 476. Moreover, for the purpose at hand in Atchison it was quite proper for the Court to treat Congress's assertion of Amtrak's nongovernmental status in § 541 as conclusive. As we have suggested above, even if Amtrak is a Government entity, § 541's disavowal of that status certainly suffices to disable that agency from incurring contractual obligations on behalf of the United States. For these reasons, we think that Atchison's assumption of Amtrak's nongovernmental status (a point uncontested by the parties in the case, since it was not Amtrak's governmental character that the railroads relied upon to establish an obligation of the United States) does not bind us here.vThe question before us today is unanswered, therefore, by governing statutory text or by binding precedent of this Court. Facing the question of Amtrak's status for the first time, we conclude that it is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution.This conclusion seems to us in accord with public and judicial understanding of the nature of Government-created and -controlled corporations over the years. A remarkable feature of the heyday of those corporations, in the 1930's and 1940's, was that, even while they were praised for their status "as agencies separate and distinct, administratively and financially and legally, from the government itself, [which] has facilitated their adoption of commercial methods of accounting and financing, avoidance of political controls, and395utilization of regular procedures of business management," it was fully acknowledged that they were a "device" of "government," and constituted "federal corporate agencies" apart from "regular government departments." Pritchett, 40 Am. Pol. Sci. Rev., at 495. The Reference Manual of Government Corporations, prepared in 1945 by the Comptroller General, contains as one of its Tables "Corporations arranged according to supervising or interested Government department or agency," see GAO Corporation Manual x-xi. This lists the 58 then-extant Government corporations under the various departments and agencies, from the Agriculture Department to the War Department, and then concludes the list with five "Independent corporations" -analogous, one supposes, to the "independent agencies" of the Executive Branch proper. The whole tenor of the Manual is that these corporations are part of the Government.This Court has shared that view. For example, in Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81 (1941), Chief Justice Hughes, writing for the Court, described the RFC, whose organic statute did not state it to be a Government instrumentality, as, nonetheless, "a corporate agency of the government," and said that "it acts as a governmental agency in performing its functions." Id., at 83. In Cherry Cotton Mills, Inc. v. United States, 327 U. S. 536 (1946), we had little difficulty finding that the RFC was "an agency selected by Government to accomplish purely governmental purposes," id., at 539, and was thus entitled to the benefit of a statute giving the Court of Claims jurisdiction over "counterclaims ... on the part of the Government of the United States," 28 U. S. C. § 250(2) (1940 ed.). Likewise in Inland Waterways Corp. v. Young, 309 U. S. 517 (1940), we found that the Inland Waterways Corporation, which similarly was not specifically designated in its charter as an instrumentality of the United States, see Act of June 3, 1924, 43 Stat. 360, was an agency of the United States, so that its funds were "public moneys" for which national banks396could give security under §45 of the National Bank Act of 1864, 13 Stat. 113, 309 U. S., at 523-524. Justice Frankfurter wrote for the Court:"So far as the powers of a national bank to pledge its assets are concerned, the form which Government takes-whether it appears as the Secretary of the Treasury, the Secretary of War, or the Inland Waterways Corporation-is wholly immaterial. The motives which lead Government to clothe its activities in corporate form are entirely unrelated to the problem of safeguarding governmental deposits .... " Id., at 523.Even Congress itself appeared to acknowledge, at least until recent years, that Government-created and -controlled corporations were part of the Government. The GCCA, discussed above, which brought to an end the era of uncontrolled growth of Government corporations, provided that, without explicit congressional authorization, no corporation should be acquired or created by "any officer or agency of the Federal Government or by any Government corporation for the purpose of acting as an agency or instrumentality of the United States .... " § 304(a), 59 Stat. 602 (emphasis added). That was evidently intended to restrict the creation of all Government-controlled policy-implementing corporations, and not just some of them. And the companion provision that swept away many of the extant corporations said that no wholly owned government corporation created under state law could continue "as an agency or instrumentality of the United States," § 304(b), 59 Stat. 602. Once again, that was evidently meant to eliminate policyimplementing government ownership of all state corporations, and not just some of them. From the 1930's onward, many of the statutes creating Government-controlled corporations said explicitly that they were agencies or instrumentalities of the United States, see, e. g., Act of June 9, 1947, § 1, 61 Stat. 130, as amended, 12 U. S. C. § 635 (creating the397Export- Import Bank of Washington as "an agency of the United States of America"); Federal Crop Insurance Act, § 503, 52 Stat. 72, 7 U. S. C. § 1503 (creating Federal Crop Insurance Corporation as "an agency of and within the Department of Agriculture"), and until 1962 none said otherwise. As we have described above, moreover, those later statutes, relatively few in number, took that statement, perhaps too uncritically, from an earlier statute pertaining to a corporation (Comsat) that was genuinely private and not Government controlled.That Government-created and -controlled corporations are (for many purposes at least) part of the Government itself has a strong basis, not merely in past practice and understanding, but in reason itself. It surely cannot be that government, state or federal, is able to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form. On that thesis, Plessy v. Ferguson, 163 U. S. 537 (1896), can be resurrected by the simple device of having the State of Louisiana operate segregated trains through a state-owned Amtrak. In Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230 (1957) (per curiam), we held that Girard College, which had been built and maintained pursuant to a privately erected trust, was nevertheless a governmental actor for constitutional purposes because it was operated and controlled by a board of state appointees, which was itself a state agency. Id., at 231. Amtrak seems to us an a fortiori case.Amtrak was created by a special statute, explicitly for the furtherance of federal governmental goals. As we have described, six of the corporation's eight externally named directors (the ninth is named by a majority of the board itself) are appointed directly by the President of the United States-four of them (including the Secretary of Transportation) with the advice and consent of the Senate. See §§ 543(a)(1)(A), (C)-(D). Although the statute restricts most of the President's choices to persons suggested by certain398organizations or persons having certain qualifications, those restrictions have been tailor-made by Congress for this entity alone. They do not in our view establish an absence of control by the Government as a whole, but rather constitute a restriction imposed by one of the political branches upon the other. Moreover, Amtrak is not merely in the temporary control of the Government (as a private corporation whose stock comes into federal ownership might be); it is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees. It is in that respect no different from the so-called independent regulatory agencies such as the Federal Communications Commission or the Securities Exchange Commission, which are run by Presidential appointees with fixed terms. It is true that the directors of Amtrak, unlike commissioners of independent regulatory agencies, are not, by the explicit terms of the statute, removable by the President for cause, and are not impeachable by Congress. But any reduction in the immediacy of accountability for Amtrak directors vis-avis regulatory commissioners seems to us of minor consequence for present purposes-especially since, by the very terms of the chartering Act, Congress's "right to repeal, alter, or amend this chapter at any time is expressly reserved." 45 U. S. C. § 541.Respondent appeals to statements this Court made in a case involving the second Bank of the United States, Bank of United States v. Planters' Bank of Georgia, 9 Wheat. 904 (1824). There we allowed the Planters' Bank, in which the State of Georgia held a noncontrolling interest, see Act of Dec. 19, 1810, § 1, reprinted in Digest of Laws of State of Georgia 34-35 (0. Prince ed. 1822); Act of Dec. 3, 1811, § 1, id., at 35, to be sued in federal court despite the Eleventh Amendment, reasoning that "[t]he State does not, by becoming a corporator, identify itself with the corporation," 9 Wheat., at 907. "The government of the Union," we said,399"held shares in the old Bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States was not a party to suits brought by or against the bank in the sense of the constitution." Id., at 908. But it does not contradict those statements to hold that a corporation is an agency of the Government, for purposes of the constitutional obligations of Government rather than the "privileges of the government," when the State has specifically created that corporation for the furtherance of governmental objectives, and not merely holds some shares but controls the operation of the corporation through its appointees.Respondent also invokes our decision in the Regional Rail Reorganization Act Cases, 419 U. S. 102 (1974), which found the Consolidated Rail Corporation, or Conrail, not to be a federal instrumentality, despite the President's power to appoint, directly or indirectly, 8 of its 15 directors. See id., at 152, n. 40; Regional Rail Reorganization Act of 1973, § 301, 87 Stat. 1004. But we specifically observed in that case that the directors were placed on the board to protect the United States' interest "in assuring payment of the obligations guaranteed by the United States," and that "[f]ull voting control ... will shift to the shareholders if federal obligations fall below 50% of Conrail's indebtedness." 419 U. S., at 152. Moreover, we noted, "[t]he responsibilities of the federal directors are not different from those of the other directorsto operate Conrail at a profit for the benefit of its shareholders," ibid.-which contrasts with the public interest "goals" set forth in Amtrak's charter, see 45 U. S. C. § 501a. Amtrak is worlds apart from Conrail: The Government exerts its control not as a creditor but as a policymaker, and no provision exists that will automatically terminate control upon termination of a temporary financial interest.55 Section 543(c) purports to divide the authority to select seven directors between the common stockholders and the preferred stockholders upon conversion of one-fourth or more of Amtrak's outstanding preferred stock400***We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. We express no opinion as to whether Amtrak's refusal to display Lebron's advertisement violated that Amendment, but leave it to the Court of Appeals to decide that. 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, 1994SyllabusLEBRON v. NATIONAL RAILROAD PASSENGER CORPORATIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 93-1525. Argued November 7, 1994-Decided February 21, 1995Petitioner Lebron, who creates billboard displays that comment on public issues, filed suit claiming, inter alia, that respondent National Railroad Passenger Corporation (Amtrak) had violated his First Amendment rights by rejecting a display for an Amtrak billboard because of its political nature. The District Court ruled that Amtrak, because of its close ties to the Federal Government, was a Government actor for First Amendment purposes, and that its rejection of the display was unconstitutional. The Court of Appeals reversed, noting that Amtrak was, by the terms of the legislation that created it, not a Government entity, and concluding that the Government was not so involved with Amtrak that the latter's decisions could be considered federal action.Held: Where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of that corporation's directors, the corporation is part of the Government for purposes of the First Amendment. Pp. 378-400.(a) It is proper for this Court to consider the argument that Amtrak is part of the Government, even though Lebron disavowed it in both lower courts and did not explicitly raise it until his brief on the merits here. It is not a new claim, but a new argument to support his First Amendment claim, see, e. g., Yee v. Escondido, 503 U. S. 519, 534-535; it was passed upon below, see, e. g., United States v. Williams, 504 U. S. 36, 41; and it was fairly embraced within both the question presented and the argument set forth in the petition. Pp. 378-383.(b) Amtrak was created by the Rail Passenger Service Act of 1970 (RPSA) to avert the threatened extinction of passenger trains in the interest of "the public convenience and necessity." The legislation establishes detailed goals for Amtrak, sets forth its structure and powers, and assigns the appointment of a majority of its board of directors to the President. Pp. 383-386.(c) There is a long history of corporations created and participated in by the United States for the achievement of governmental objectives. Like some other Government corporations, Amtrak's authorizing stat-375ute provides that it "will not be an agency or establishment of the United States Government," 84 Stat. 1330; see also 45 U. S. C. § 541. Pp.386-391.(d) Although § 541 is assuredly dispositive of Amtrak's governmental status for purposes of matters within Congress's control--e. g., whether it is subject to statutes like the Administrative Procedure Act-and can even suffice to deprive it of all those inherent governmental powers and immunities that Congress has the power to eliminate-e. g., sovereign immunity from suit-it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions. The Constitution constrains governmental action by whatever instruments or in whatever modes that action may be taken, Ex parte Virginia, 100 U. S. 339,346-347, and under whatever congressional label, Cherry Cotton Mills, Inc. v. United States, 327 U. S. 536, 539. National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407, 410, and National Railroad Passenger Corporation v. Atchison, T. & S.(e) Amtrak is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution. This conclusion accords with the public, judicial, and congressional understanding over the years that Government-created and -controlled corporations are part of the Government itself. See, e. g., Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U. S. 81, 83; Government Corporation Control Act, § 304(a), 59 Stat. 602. A contrary holding would allow government to evade its most solemn constitutional obligations by simply resorting to the corporate form, cf. Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230, 231. Bank of United States v. Planters' Bank of Georgia, 9 Wheat. 904, 907, 908, and Regional Rail Reorganization Act Cases, 419 U. S. 102, 152, distinguished. Pp. 394-399.12 F.3d 388, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, post, p. 400.David D. Cole argued the cause for petitioner. With him on the briefs were R. Bruce Rich and Gloria C. Phares.376Full Text of Opinion

1982_81-1802

JUSTICE REHNQUIST delivered the opinion of the Court.A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five-gallon drum containing chloroform purchased by one of respondent's codefendants. By monitoring the progress of a car carrying the chloroform, Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minn., to respondent's secluded cabin near Shell Lake, Wis. The issue presented by the case is whether such use of a beeper violated respondent's rights secured by the Fourth Amendment to the United States Constitution.IRespondent and two codefendants were charged in the United States District Court for the District of Minnesota with conspiracy to manufacture controlled substances, including but not limited to methamphetamine, in violation of 21 U.S.C. § 846. One of the codefendants, Darryl Petschen, Page 460 U. S. 278 was tried jointly with respondent; the other codefendant, Tristan Armstrong, pleaded guilty and testified for the Government at trial.Suspicion attached to this trio when the 3M Co., which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that, after leaving the employ of 3M Co., he had been purchasing similar chemicals from the Hawkins Chemical Co. in Minneapolis. The Minnesota narcotics officers observed that, after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen.With the consent of the Hawkins Chemical Co., officers installed a beeper inside a five-gallon container of chloroform, one of the so-called "precursor" chemicals used to manufacture illicit drugs. Hawkins agreed that, when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper.Armstrong proceeded to Petschen's house, where the container was transferred to Petschen's automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time, officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now was stationary, and the location identified was a cabin occupied by respondent near Shell Lake, Wis. The record before us does not reveal that the beeper was used after the Page 460 U. S. 279 location in the area of the cabin had been initially determined. Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual surveillance of respondent's cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area, officers found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five-gallon container of chloroform.After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted for conspiring to manufacture controlled substances in violation of 21 U.S.C. § 846. He was sentenced to five years' imprisonment. A divided panel of the United States Court of Appeals for the Eighth Circuit reversed the conviction, finding that the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated respondent's reasonable expectation of privacy, and that all information derived after the location of the cabin was a fruit of the illegal beeper monitoring. * 662 F.2d 515 Page 460 U. S. 280 (1981). We granted certiorari, 457 U.S. 1131 (1982), and we now reverse the judgment of the Court of Appeals.IIIn Olmstead v. United States, 277 U. S. 438 (1928), this Court held that the wiretapping of a defendant's private telephone line did not violate the Fourth Amendment because the wiretapping had been effectuated without a physical trespass by the Government. Justice Brandeis, joined by Justice Stone, dissented from that decision, believing that the actions of the Government in that case constituted an "unjustifiable intrusion . . . upon the privacy of the individual," and therefore a violation of the Fourth Amendment. Id. at 277 U. S. 478. Nearly 40 years later, in Katz v. United States, 389 U. S. 347 (1967), the Court overruled Olmstead, saying that the Fourth Amendment's reach "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." 389 U.S. at 389 U. S. 353. The Court said:"The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance."Ibid.In Smith v. Maryland, 442 U. S. 735 (1979), we elaborated on the principles stated in Katz:"Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. [Citations omitted.] This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces Page 460 U. S. 281 two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S. at 389 U. S. 361 -- whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id. at 389 U. S. 351. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as reasonable,'" id. at 389 U. S. 361 -- whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances. Id. at 389 U. S. 353. See Rakas v. Illinois, 439 U.S. at 439 U. S. 143-144, n. 12; id. at 439 U. S. 151 (concurring opinion); United States v. White, 401 U.S. at 401 U. S. 752 (plurality opinion)." 442 U.S. at 442 U. S. 740-741 (footnote omitted).The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile:"One has a lesser expectation of privacy in a motor vehicle because its function is transportation, and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view."Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 590 (1974) (plurality opinion). See also Rakas v. Illinois, 439 U. S. 128, 439 U. S. 153-154, and n. 2 (1978) (POWELL, J., concurring); South Dakota v. Opperman, 428 U. S. 364, 428 U. S. 368 (1976).A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen traveled over the public streets, he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular Page 460 U. S. 282 roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned:"Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."Johnson v. United States, 333 U. S. 10, 333 U. S. 14 (1948), quoted with approval in Payton v. New York, 445 U. S. 573, 445 U. S. 586 (1980).But no such expectation of privacy extended to the visual observation of Petschen's automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the "open fields." Hester v. United States, 265 U. S. 57 (1924).Visual surveillance from public places along Petschen's route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of Petschen's automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case. In United States v. Lee, 274 U. S. 559 (1927), the Court said: Page 460 U. S. 283"But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches. For aught that appears, the cases of liquor were on deck and, like the defendants, were discovered before the motor boat was boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution."Id. at 563.We have recently had occasion to deal with another claim which was to some extent a factual counterpart of respondent's assertions here. In Smith v. Maryland, we said:"This analysis dictates that [Smith] can claim no legitimate expectation of privacy here. When he used his phone, [Smith] voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business. In so doing, [Smith] assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. [Smith] concedes that, if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. [Citation omitted.] We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate."442 U.S. at 442 U. S. 744-745.Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision." Brief for Respondent 9 (footnote omitted). But the fact is that the "reality hardly suggests abuse," Zurcher v. Stanford Page 460 U. S. 284 Daily, 436 U. S. 547, 436 U. S. 566 (1978); if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Ibid. Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.Respondent specifically attacks the use of the beeper insofar as it was used to determine that the can of chloroform had come to rest on his property at Shell Lake, Wis. He repeatedly challenges the "use of the beeper to determine the location of the chemical drum at Respondent's premises," Brief for Respondent 26; he states that"[t]he government thus overlooks the fact that this case involves the sanctity of Respondent's residence, which is accorded the greatest protection available under the Fourth Amendment."Ibid. The Court of Appeals appears to have rested its decision on this ground:"As noted above, a principal rationale for allowing warrantless tracking of beepers, particularly beepers in or on an auto, is that beepers are merely a more effective means of observing what is already public. But people pass daily from public to private spheres. When police agents track bugged personal property without first obtaining a warrant, they must do so at the risk that this enhanced surveillance, intrusive at best, might push fortuitously and unreasonably into the private sphere protected by the Fourth Amendment."662 F.2d at 518.We think that respondent's contentions, and the above-quoted language from the opinion of the Court of Appeals, to some extent lose sight of the limited use which the government made of the signals from this particular beeper. As we have noted, nothing in this record indicates that the beeper Page 460 U. S. 285 signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent's premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz v. United States, 389 U. S. 347 (1967), neither were they dispositive in Hester v. United States, 265 U. S. 57 (1924).We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold it did not. Since it did not, there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The judgment of the Court of Appeals is thereforeReversed

U.S. Supreme CourtUnited States v. Knotts, 460 U.S. 276 (1983)United States v. KnottsNo. 81-1802Argued December 6, 1982Decided March 2, 1983460 U.S. 276SyllabusHaving reason to believe that one Armstrong was purchasing chloroform to be used in the manufacture of illicit drugs, Minnesota law enforcement officers arranged with the seller to place a beeper (a radio transmitter) inside a chloroform container that was sold to Armstrong. Officers then followed the car in which the chloroform was placed, maintaining contact by using both visual surveillance and a monitor which received the beeper signals, and ultimately tracing the chloroform, by beeper monitoring alone, to respondent's secluded cabin in Wisconsin. Following three days of intermittent visual surveillance of the cabin, officers secured a search warrant and discovered the chloroform container, and a drug laboratory in the cabin, including chemicals and formulas for producing amphetamine. After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted in Federal District Court for conspiring to manufacture controlled substances in violation of 21 U.S.C. § 846. The Court of Appeals reversed, holding that the monitoring of the beeper was prohibited by the Fourth Amendment.Held: Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent's part, and thus there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements. While respondent had the traditional expectation of privacy within a dwelling place insofar as his cabin was concerned, such expectation of privacy would not have extended to the visual observation from public places of the automobile arriving on his premises after leaving a public highway, or to movements of objects such as the chloroform container outside the cabin. The fact that the officers relied not only on visual surveillance, but also on the use of the beeper, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case. There is no indication that the beeper was used in any way to reveal information as to the movement of the chloroform container within the cabin, or in any Page 460 U. S. 277 way that would not have been visible to the naked eye from outside the cabin. Pp. 460 U. S. 280-285.662 F.2d 515, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 460 U. S. 285. BLACKMUN, J., filed an opinion concurring in the judgment, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 460 U. S. 287. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN, and MARSHALL, JJ., joined, post, p. 460 U. S. 288.

1985_84-701

JUSTICE WHITE delivered the opinion of the Court.This case presents the question whether the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., together with certain regulations promulgated under its authority by the Army Corps of Engineers, authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.IThe relevant provisions of the Clean Water Act originated in the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, and have remained essentially unchanged since that time. Under §§ 301 and 502 of the Act, 33U.S.C. §§ 1311 and 1362, any discharge of dredged or fill materials into "navigable waters" -- defined as the "waters of the United States" -- is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to § 404, 33 U.S.C. § 1344. [Footnote 1] After initially construing the Act to cover only waters navigable in fact, in 1975 the Corps issued interim final regulations redefining "the waters of the United States" to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect interstate commerce. 40 Fed.Reg. 31320 Page 474 U. S. 124 (1975). More importantly for present purposes, the Corps construed the Act to cover all "freshwater wetlands" that were adjacent to other covered waters. A "freshwater wetland" was defined as an area that is "periodically inundated" and is "normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction." 33 CFR § 209.120(d)(2)(h) (1976). In 1977,the Corps refined its definition of wetlands by eliminating the reference to periodic inundation and making other minor changes. The 1977 definition reads as follows:"The term 'wetlands' means those areas that are in undated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas."33 CFR § 323.2(c) (1978). In 1982, the 1977 regulations were replaced by substantively identical regulations that remain in force today. See 33 CFR § 323.2 (1985). [Footnote 2] Respondent Riverside Bayview Homes, Inc. (hereafter respondent), owns 80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan. In 1976, respondent began to place fill materials on its property as part of its preparations for construction of a housing development. The Corps of Engineers, believing that the property was an "adjacent wetland" under the 1975 regulation defining "waters of the United States," filed suit in the United States District Court for the Eastern District of Michigan, seeking to enjoin respondent from filling the property without the permission of the Corps. Page 474 U. S. 125The District Court held that the portion of respondent's property lying below 575.5 feet above sea level was a covered wetland, and enjoined respondent from filling it without a permit. Civ. No. 77-70041 (Feb. 24, 1977) (App. to Pet. for Cert. 22a); Civ. No. 77-70041 (June 21, 1979) (App. to Pet. for Cert. 32a). Respondent appealed, and the Court of Appeals remanded for consideration of the effect of the intervening 1977 amendments to the regulation. 615 F.2d 1363 (1980). On remand, the District Court again held the property to be a wetland subject to the Corps' permit authority. Civ. No. 77-70041 (May 10, 1981) (App. to Pet. for Cert. 42a).Respondent again appealed, and the Sixth Circuit reversed. 729 F.2d 391 (1984). The court construed the Corps' regulation to exclude from the category of adjacent wetlands -- and hence from that of "waters of the United States" -- wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court adopted this construction of the regulation because, in its view, a broader definition of wetlands might result in the taking of private property without just compensation. The court also expressed its doubt that Congress, in granting the Corps jurisdiction to regulate the filling of "navigable waters," intended to allow regulation of wetlands that were not the result of flooding by navigable waters. [Footnote 3] Under the court's reading of the regulation, respondent's property was not within the Corps' jurisdiction, because its semiaquatic characteristics were not the result of frequent flooding by the nearby navigable waters. Respondent was therefore free to fill the property without obtaining a permit. Page 474 U. S. 126We granted certiorari to consider the proper interpretation of the Corps' regulation defining "waters of the United States" and the scope of the Corps' jurisdiction under the Clean Water Act, both of which were called into question by the Sixth Circuit's ruling. 469 U.S. 1206 (1985). We now reverse.IIThe question whether the Corps of Engineers may demand that respondent obtain a permit before placing fill material on its property is primarily one of regulatory and statutory interpretation: we must determine whether respondent's property is an "adjacent wetland" within the meaning of the applicable regulation, and, if so, whether the Corps' jurisdiction over "navigable waters" gives it statutory authority to regulate discharges of fill material into such a wetland. In this connection, we first consider the Court of Appeals' position that the Corps' regulatory authority under the statute and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment.We have frequently suggested that governmental land use regulation may, under extreme circumstances, amount to a "taking" of the affected property. See, e.g., Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1985); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). We have never precisely defined those circumstances, see id. at 438 U. S. 123-128, but our general approach was summed up in Agins v. Tiburon, 447 U. S. 255, 447 U. S. 260 (1980), where we stated that the application of land use regulations to a particular piece of property is a taking only "if the ordinance does not substantially advance legitimate state interests . . . or denies an owner economically viable use of his land." Moreover, we have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See Hodel v. Virginia Surface Mining & Reclamation Assn., 452 Page 474 U. S. 127 U.S. 264, 452 U. S. 293-297 (1981). The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not, itself, "take" the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent "economically viable"use of the land in question can it be said that a taking has occurred.If neither the imposition of the permit requirement itself nor the denial of a permit necessarily constitutes a taking, it follows that the Court of Appeals erred in concluding that a narrow reading of the Corps' regulatory jurisdiction over wetlands was "necessary" to avoid "a serious taking problem." 729 F.2d at 398. [Footnote 4] We have held that, in general,"[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, Page 474 U. S. 128 when a suit for compensation can be brought against the sovereign subsequent to a taking."Ruckelshaus v. Monsanto Co., 467 U. S. 986, 467 U. S. 1016 (1984) (footnote omitted). This maxim rests on the principle that, so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional. Williamson County, supra, at 473 U. S. 194-195. For precisely the same reason, the possibility that the application of a regulatory program may in some instances result in the taking of individual pieces of property is no justification for the use of narrowing constructions to curtail the program if compensation will, in any event, be available in those cases where a taking has occurred. Under such circumstances, adoption of a narrowing construction does not constitute avoidance of a constitutional difficulty, cf. Ashwander v. TVA, 297 U. S. 288, 297 U. S. 341-356 (1936) (Brandeis, J., concurring); it merely frustrates permissible applications of a statute or regulation. [Footnote 5] Because the Tucker Act, 28 U.S.C. § 1491, which presumptively supplies a means of obtaining compensation for any taking that may occur through the operation of a federal statute, see Ruckelshaus v. Monsanto Co., supra, at 467 U. S. 1017, is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands, the Court of Appeals' fears that application of the Corps' permit program might result in a taking did not justify the court in adopting a Page 474 U. S. 129 more limited view of the Corps' authority than the terms of the relevant regulation might otherwise support. [Footnote 6]IIIPurged of its spurious constitutional overtones, the question whether the regulation at issue requires respondent to obtain a permit before filling its property is an easy one. The regulation extends the Corps' authority under § 404 to all wetlands adjacent to navigable or interstate waters and their tributaries. Wetlands, in turn, are defined as lands that are"inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."33 CFR § 323.2(c) (195) (emphasis added). The plain language of the regulation refutes the Court of Appeals' conclusion that inundation or "frequent flooding" by the adjacent body of water is a sine qua non of a wetland under the regulation. Indeed, the regulation could hardly state more clearly that saturation by either surface or ground water is sufficient to bring an area within the category of wetlands, provided that Page 474 U. S. 130 the saturation is sufficient to, and does, support wetland vegetation. The history of the regulation underscores the absence of any requirement of inundation. The interim final regulation that the current regulation replaced explicitly included a requirement of "periodi[c] inundation." 33 CFR § 209.120(d)(2)(h) (1976). In deleting the reference to "periodic inundation" from the regulation as finally promulgated, the Corps explained that it was repudiating the interpretation of that language "as requiring inundation over a record period of years." 42 Fed.Reg. 37128 (1977). In fashioning its own requirement of "frequent flooding" the Court of Appeals improperly reintroduced into the regulation precisely what the Corps had excised. [Footnote 7] Without the nonexistent requirement of frequent flooding,the regulatory definition of adjacent wetlands covers the property here. The District Court found that respondent's property was "characterized by the presence of vegetation that requires saturated soil conditions for growth and reproduction," Page 474 U. S. 131 App. to Pet. for Cert. 24a, and that the source of the saturated soil conditions on the property was groundwater. There is no plausible suggestion that these findings are clearly erroneous, and they plainly bring the property within the category of wetlands as defined by the current regulation. In addition, the court found that the wetland located on respondent's property was adjacent to a body of navigable water, since the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent's property to Black Creek, a navigable waterway. Again, the court's finding is not clearly erroneous. Together, these findings establish that respondent's property is a wetland adjacent to a navigable waterway. Hence, it is part of the "waters of the United States" as defined by 33 CFR § 323.2 (1985), and if the regulation itself is valid as a construction of the term "waters of the United States" as used in the Clean Water Act, a question which we now address, the property falls within the scope of the Corps' jurisdiction over "navigable waters" under § 404 of the Act.IVAAn agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 470 U. S. 125 (1985); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-845 (1984). Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act, for the Corps to exercise jurisdiction over wetlands adjacent to, but not regularly flooded by, rivers, streams, and other hydrographic features more conventionally identifiable as "waters." [Footnote 8] Page 474 U. S. 132On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under§ 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs -- in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious. Faced with such a problem of defining the bounds of its regulatory authority, an agency may appropriately look to the legislative history and underlying policies of its statutory grants of authority. Neither of these sources provides unambiguous guidance for the Corps in this case, but together they do support the reasonableness of the Corps' approach of defining adjacent wetlands as "waters" within the meaning of§ 404(a). Section 404 originated as part of the Federal Water Pollution Control Act Amendments of 1972, which constituted a comprehensive legislative attempt "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101, 33 U.S.C. § 1251. This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality: as the House Report on the legislation put it, "the word integrity' . . . refers to a condition in which the natural structure and function of ecosystems [are] maintained." H.R.Rep. No. 92911, p. 76(1972). Protection of aquatic ecosystems, Congress recognized, Page 474 U. S. 133 demanded broad federal authority to control pollution, for "[w]ater moves in hydrologic cycles, and it is essential that discharge of pollutants be controlled at the source." S.Rep.No. 92414, p. 77 (1972). In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into "navigable waters," see CWA §§ 301(a), 404(a), 502(12), 33 U.S.C. §§ 1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term"navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes, and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S.Conf.Rep. No. 921236, p. 144 (1972); 118 Cong.Rec. 33756-33757(1972) (statement of Rep. Dingell). Of course, it is one thing to recognize that Congress intended to allow regulation of waters that might not satisfy traditional tests of navigability; it is another to assert that Congress intended to abandon traditional notions of "waters" and include in that term "wetlands" as well. Nonetheless, the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term "waters" to encompass wetlands adjacent to waters as more conventionally defined. Following the lead of the Environmental Protection Agency, see 38 Fed.Reg. 10834 (1973), the Corps has determined that wetlands adjacent to navigable waters do, as a general matter, play a key role in protecting and enhancing water quality:"The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . , but must focus on all waters that together form the entire aquatic system. Page 474 U. S. 134 Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system.""For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system."42 Fed.Reg. 37128 (1977).We cannot say that the Corps' conclusion that adjacent wetlands are inseparably bound up with the "waters" of the United States -- based as it is on the Corps' and EPA's technical expertise -- is unreasonable. In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act. This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. For example, wetlands that are not flooded by adjacent waters may still tend to drain into those waters. In such circumstances, the Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water, see 33 CFR§ 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams, and thus prevent flooding and erosion, see §§ 320.4(b)(2)(iv) and (v). In addition, adjacent wetlands may"serve significant natural biological functions, including food chain production, general habitat, and nesting, Page 474 U. S. 135 spawning, rearing and resting sites for aquatic . . . species."§ 320.4(b)(2)(i). In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water. Again, we cannot say that the Corps' judgment on these matters is unreasonable, and we therefore conclude that a definition of "waters of the United States" encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act. Because respondent's property is part of a wetland that actually abuts on a navigable waterway, respondent was required to have a permit in this case. [Footnote 9]BFollowing promulgation of the Corps' interim final regulations in 1975, the Corps' assertion of authority under § 404 over waters not actually navigable engendered some congressional opposition. The controversy came to a head during Congress' consideration of the Clean Water Act of 1977, a major piece of legislation aimed at achieving "interim improvements within the existing framework" of the Clean Water Act. H.R.Rep. No. 95139, pp. 1-2 (1977). In the Page 474 U. S. 136 end, however, as we shall explain, Congress acquiesced in the administrative construction.Critics of the Corps' permit program attempted to insert limitations on the Corps' § 404 jurisdiction into the 1977 legislation: the House bill as reported out of committee proposed a redefinition of "navigable waters" that would have limited the Corps' authority under § 404 to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters). H.R. 3199, 95th Cong., 1st Sess., § 16 (1977). The bill reported by the Senate Committee on Environment and Public Works, by contrast, contained no redefinition of the scope of the "navigable waters" covered by § 404, and dealt with the perceived problem of overregulation by the Corps by exempting certain activities (primarily agricultural) from the permit requirement, and by providing for assumption of some of the Corps' regulatory duties by federally approved state programs. S.1952, 95th Cong., 1st Sess., § 49(b) (1977). On the floor of the Senate, however, an amendment was proposed limiting the scope of "navigable waters" along the lines set forth in the House bill. 123 Cong.Rec. 26710-26711 (1977).In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id. at 10426-10432 (House debate); id. at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps' assertion of jurisdiction over wetlands and other nonnavigable"waters" had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of "navigable waters" for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps' jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of "waters"; but in the Senate the limiting Page 474 U. S. 137 amendment was defeated and the old definition retained. The Conference Committee adopted the Senate's approach: efforts to narrow the definition of "waters" were abandoned; the legislation as ultimately passed, in the words of Senator Baker, "retain[ed] the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act." [Footnote 10]The significance of Congress' treatment of the Corps' § 404 jurisdiction in its consideration of the Clean Water Act of 1977 is twofold. First, the scope of the Corps' asserted jurisdiction over wetlands was specifically brought to Congress' attention, and Congress rejected measures designed to curb the Corps' jurisdiction, in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of "navigable waters." Although we are chary of attributing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress' attention through legislation specifically designed to supplant it. See Bob Jones University v. United States, 461 U. S. 574, 461 U. S. 599-601 (1983); United States v. Rutherford, 442 U. S. 544, 442 U. S. 554, and n. 10 (1979).Second, it is notable that even those who would have restricted the reach of the Corps' jurisdiction would have done so not by removing wetlands altogether from the definition of "waters of the United States," but only by restricting the scope of "navigable waters" under § 404 to waters navigable in fact and their adjacent wetlands. In amending the definition of "navigable waters" for purposes of § 404 only, the backers of the House bill would have left intact the existing definition of "navigable waters" for purposes of § 301 of the Page 474 U. S. 138 Act, which generally prohibits discharges of pollutants into navigable waters. As the House Report explained: "Navigable waters,' as used in section 301, includes all of the waters of the United States, including their adjacent wetlands." H.R.Rep. No. 95139, p. 24 (1977). Thus, even those who thought that the Corps' existing authority under § 404 was too broad recognized (1) that the definition of "navigable waters" then in force for both § 301 and § 404 was reasonably interpreted to include adjacent wetlands, (2) that the water quality concerns of the Clean Water Act demanded regulation of at least some discharges into wetlands, and (3) that whatever jurisdiction the Corps would retain over discharges of fill material after passage of the 1977 legislation should extend to discharges into wetlands adjacent to any waters over which the Corps retained jurisdiction. These views provide additional support for a conclusion that Congress in 1977 acquiesced in the Corps' definition of waters as including adjacent wetlands.Two features actually included in the legislation that Congress enacted in 1977 also support the view that the Act authorizes the Corps to regulate discharges into wetlands. First, in amending § 404 to allow federally approved state permit programs to supplant regulation by the Corps of certain discharges of fill material, Congress provided that the States would not be permitted to supersede the Corps' jurisdiction to regulate discharges into actually navigable waters and waters subject to the ebb and flow of the tide, "including wetlands adjacent thereto." CWA § 404(g)(1), 33 U.S.C.§ 1344(g)(1). Here, then, Congress expressly stated that the term "waters" included adjacent wetlands. [Footnote 11] Second, the Page 474 U. S. 139 1977 Act authorized an appropriation of $6 million for completion by the Department of Interior of a "National Wetlands Inventory" to assist the States "in the development and operation of programs under this Act." CWA § 208(i)(2), 33U.S.C. § 1288(i)(2). The enactment of this provision reflects congressional recognition that wetlands are a concern of the Clean Water Act, and supports the conclusion that, in defining the waters covered by the Act to include wetlands, the Corps is "implementing congressional policy, rather than embarking on a frolic of its own." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 375 (1969).CWe are thus persuaded that the language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of fill material into wetlands adjacent to the "waters of the United States." The regulation in which the Corps has embodied this interpretation, by its terms, includes the wetlands on respondent's property within the class of waters that may not be filled without a permit; and, as we have seen, there is no reason to interpret the regulation more narrowly than its terms would indicate. Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Riverside Bayview, 474 U.S. 121 (1985)United States v. Riverside Bayview Homes, Inc.No. 84-701Argued October 16, 1985Decided December 4, 1985474 U.S. 121SyllabusThe Clean Water Act prohibits any discharge of dredged or fill materials into "navigable waters" -- defined as the "waters of the United States" -- unless authorized by a permit issued by the Army Corps of Engineers (Corps). Construing the Act to cover all "freshwater wetlands" that are adjacent to other covered waters, the Corps issued a regulation defining such wetlands as"those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."After respondent Riverside Bayview Homes, Inc. (hereafter respondent), began placing fill materials on its property near the shores of Lake St. Clair, Michigan, the Corps filed suit in Federal District Court to enjoin respondent from filling its property without the Corps' permission. Finding that respondent's property was characterized by the presence of vegetation requiring saturated soil conditions for growth, that the source of such soil conditions was ground water, and that the wetland on the property was adjacent to a body of navigable water, the District Court held that the property was wetland subject to the Corps' permit authority. The Court of Appeals reversed, construing the Corps' regulation to exclude from the category of adjacent wetlands -- and hence from that of "waters of the United States" -- wetlands that are not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation. The court took the view that the Corps' authority under the Act and its implementing regulations must be narrowly construed to avoid a taking without just compensation in violation of the Fifth Amendment. Under this construction, it was held that respondent's property was not within the Corps' jurisdiction, because its semi-aquatic characteristics were not the result of frequent flooding by the nearby navigable waters, and that therefore respondent was free to fill the property without obtaining a permit.Held:1. The Court of Appeals erred in concluding that a narrow reading of the Corps' regulatory jurisdiction over wetlands was necessary to avoid a taking problem. Neither the imposition of the permit requirement Page 474 U. S. 122 itself nor the denial of a permit necessarily constitutes a taking. And the Tucker Act is available to provide compensation for takings that may result from the Corps' exercise of jurisdiction over wetlands. Pp. 474 U. S. 126-129.2. The District Court's findings are not clearly erroneous, and plainly bring respondent's property within the category of wetlands, and thus of the "waters of the United States" as defined by the regulation in ques tion. Pp. 474 U. S. 129-131.3. The language, policies, and history of the Clean Water Act compel a finding that the Corps has acted reasonably in interpreting the Act to require permits for the discharge of material into wetlands adjacent to other "waters of the United States." Pp. 474 U. S. 131-139.729 F.2d 391 reversed.WHITE, J., delivered the opinion for a unanimous Court. Page 474 U. S. 123

1984_83-1015

JUSTICE WHITE delivered the opinion of the Court.This appeal challenges a three-judge District Court's construction and application of § 5 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U.S.C. § 1973c. That section provides that certain jurisdictions, including the one in which this case arose, may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General. [Footnote 1] The statute further provides that, once a proposed Page 470 U. S. 169 change has been submitted to the Attorney General, he has 60 days in which to object. If an objection is interposed, the submitting authority may request reconsideration. 28 CFR § 51.44 (1984). Such a request triggers another 60-day period for the Attorney General to decide whether to continue or withdraw his objection. § 51.47. The District Court held that § 5 did not require the changes in election practices involved here to be cleared by the Attorney General prior to their implementation. We noted probable jurisdiction, 467 U.S. 1250 (1984), and now reverse that judgment. Page 470 U. S. 170IAs of November 1, 1964, the Hampton County, South Carolina, public schools were governed by appointed officials and an elected Superintendent of Education. The county comprises two school districts, School District No. 1, where the vast majority of white students live, and School District No. 2, which is predominantly black. [Footnote 2] Each District was governed by a separate six-member Board of Trustees. These trustees were appointed by a six-member County Board of Education, which in turn was appointed by the county legislative delegation.On February 18, 1982, apparently in an attempt to facilitate consolidation of these two School Districts, [Footnote 3] the South Carolina General Assembly enacted Act No. 547. This statute provided that, beginning in 1983, the six members of the County Board of Education were to be elected at large rather than appointed. The first election for the new Board was to be held simultaneously with the general election in November, 1982, and prospective candidates were required to file with the Election Commission at least 45 days before the election. [Footnote 4] Pursuant to § 5 of the Voting Rights Act, the State submitted Act No. 547 for the approval of the Attorney General, who received it on February 27. [Footnote 5] On April 28, the Attorney General informed the State that he had no objection to the change in question. [Footnote 6] Page 470 U. S. 171On April 9, however, before the Attorney General had approved Act No. 547, the Governor of South Carolina signed Act No. 549, which was designed to supersede Act No. 547. Act No. 549 abolished the County Board of Education and the County Superintendent, devolving their duties upon the District Boards of Trustees, which were to be elected separately by each District. Like Act No. 547, Act No. 549 scheduled the first trustee election to coincide with the November, 1982, general election. Candidates were required to file between August 16 and August 31. Implementation of the Act was made contingent upon approval in a referendum to be held in May, 1982. [Footnote 7]The State did not submit Act No. 549 to the Attorney General for clearance until June 16, 1982, 22 days after it was approved in the referendum and 68 days after it had been enacted. [Footnote 8] As of August 16 -- the opening date of the filing period under Act No. 549 -- no response had yet been received from the Attorney General. Nevertheless, the County Election Commission began accepting filings for elections to be held under Act No. 549. On August 23, the Attorney General interposed an objection. He informed the State that it had not sustained its burden of showing that the proposal to eliminate the County Board of Education did not have a discriminatory purpose or effect. The Attorney General noted that"the county board has been particularly responsive to the interests and needs of the black community Page 470 U. S. 172 in Hampton County and consistently has appointed biracial representation on the local boards of trustees for both School District 1 and School District 2. [Footnote 9]"Because the State was contemplating requesting the Attorney General to reconsider this objection, the County Election Commission continued to accept filings under Act No. 549 through the end of the designated filing period, August 31. On that date, the State officially requested reconsideration. [Footnote 10] At the same time, the Election Commission began accepting filings under Act No. 547, in case the Attorney General refused to withdraw his objection to Act No. 549. On November 2, the date of the general election, the Attorney General had not yet responded to the request for reconsideration, and elections for County Board members were held pursuant to Act No. 547. [Footnote 11] No elections were held pursuant to Act No. 549.On November 19, the Attorney General withdrew his objection to Act No. 549. The objection had been based primarily on the possibility that the County Board, which the Act would abolish, might have consolidated the two School Districts, but, upon reappraising South Carolina law, the Attorney General concluded that the Board lacked authority to approve such a consolidation. Therefore, its elimination would not have a potentially discriminatory impact. [Footnote 12]The effect of the Attorney General's clearance of Act No. 549 was to render Act No. 547 -- and the November elections held pursuant to it -- null and void. In response to a request for advice, the South Carolina Attorney General informed the County Election Commission in January that Page 470 U. S. 173 Act No. 549 was now in effect and that an election for school district trustees should be held "as soon as possible." The State Attorney General further opined that there was no reason to reopen the filing period, "as only the date of the election has changed." [Footnote 13] Accordingly, the Commission set March 15, 1983, as election day.On March 11, appellants, two civil rights organizations and several residents of Hampton County, filed suit in the United States District Court for the District of South Carolina seeking to enjoin the election as illegal under § 5 of the Voting Rights Act. The defendants were the County Election Commission, the two School Districts, and various county officials. The complaint identified a number of alleged "changes" in election procedure, including the scheduling of an election at a time other than that specified in the statute, and the use of the August filing period for the March election. [Footnote 14] A preliminary injunction was denied, and the election took place as scheduled. [Footnote 15] Subsequently, a three-judge panel denied a permanent injunction and declaratory relief, holding that no violation of § 5 of the Voting Rights Act had occurred. [Footnote 16] The court reasoned that, although Act No. 549 Page 470 U. S. 174 itself was a "change" under the Act, the scheduling of the election and the filing period were simply "ministerial acts necessary to accomplish the statute's purpose . . . , and thus did not require preclearance." App. to Juris. Statement 9a. In the alternative, the court held that, even if these acts did constitute "changes," they had now been "precleared along with the remaining provisions of Act No. 549." Ibid. That this "preclearance" did not occur until after the filing period had been held was not considered dispositive. The court interpreted Berry v. Doles, 438 U. S. 190 (1978), to stand for the proposition that after-the-fact federal approval under § 5 might retroactively validate a change in voting procedures. [Footnote 17]IIAppellants contend that the opening of the August filing period before preclearance, and the scheduling of an election in March after the Attorney General had approved only a November election date, are changes that come within the scope of § 5. Appellees, echoing the rationale of the District Court, maintain that opening the filing period as required by Act No. 549 -- albeit before the Act had been approved -- was merely a preliminary step in its implementation. If the Attorney General had ultimately disapproved Act No. 549, the county would not have held an election under it, and the filing period would have become a nullity. Because Act No. 549 was in fact cleared, the filing period it specified was necessarily cleared as well. The alteration of the date of the election, according to appellees, was merely an "unfreezing" of a process that had been temporarily suspended by the operation of the Voting Rights Act. Although appellees concede that a legislatively enacted change in the date of an election is covered by the Act, [Footnote 18] they distinguish the change at issue Page 470 U. S. 175 here because it was required only by the Attorney General's failure to approve Act No. 549 before the scheduled election date, and because it was undertaken only to effect the initial implementation of the statute.We need not decide whether a jurisdiction covered by § 5 may ever open a filing period under a statute that has not yet been precleared. [Footnote 19] In this case, Hampton County not only opened the filing period for School District trustees before preclearance, but it also scheduled the election for a date four months later than that approved by the Attorney General. Thus, the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election.These changes cannot fairly be characterized as "ministerial" in light of the sweeping objectives of the Act. The Voting Rights Act was aimed at"the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race."Allen v. Page 470 U. S. 176 State Board of Elections, 393 U. S. 544, 393 U. S. 565 (1969). Our precedents recognize that, to effectuate the congressional purpose, § 5 is to be given broad scope. Id. at 393 U. S. 567; see also Dougherty County Board of Education v. White, 439 U. S. 32, 439 U. S. 38 (1978). Also, far from exempting alterations that might be perceived as minor, Congress failed to adopt such a suggestion when it was proposed in debates on the original Act. [Footnote 20]Developments since the passage of the Act provide no basis for concluding that our cases had misinterpreted the intent of Congress. On the contrary, the legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found "virtual unanimity among those who [had] studied the record," S.Rep. No. 97-417, p. 9 (1982), that § 5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision. [Footnote 21]Although this Court has never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case, we have twice held that the rescheduling of a candidate qualifying period is a "change" that comes within Page 470 U. S. 177 the scope of § 5. Hadnott v. Amos, 394 U. S. 358, 394 U. S. 365-366 (1969); Allen v. State Board of Elections, supra, at 393 U. S. 551, 393 U. S. 570. [Footnote 22] Of course, there was no alteration in the filing period itself in this case; it was held between August 16 and August 31, exactly as Act No. 549 required. But a filing period cannot be considered in isolation from the election of which it forms a part. As we have recognized in an analogous context, issues that provoke responses from the electorate and from potential candidates are most likely to arise shortly before election time. [Footnote 23] Under appellees' approach, a filing period held years before an election would serve as well as one held on election eve. But clearly, the former has a much greater potential for hindering voter participation than the latter. Furthermore, the August filing period was held at a time when the Attorney General still had an outstanding objection to Act No. 549. Potential candidates who considered the opening of the filing period illegal in these circumstances may have deliberately stayed away. [Footnote 24] Page 470 U. S. 178Appellees do not seriously dispute that a change in the date of an election, if effected by statute, requires approval by the Attorney General under § 5. [Footnote 25] Rather, they argue that, because the rescheduling in this case was merely an administrative effort to comply with a statute that had already received clearance, it was not a change of such magnitude as to trigger the requirements of § 5. But plainly, the form of a change in voting procedures cannot determine whether it is within the scope of § 5. That section reaches informal as well as formal changes, such as a bulletin issued by a state board of elections. Allen, supra. [Footnote 26] If it were otherwise, States could evade the requirements of § 5 merely by implementing changes in an informal manner. Neither is it determinative that an alteration in scheduling is unlikely to be repeated, as it would be if it were embodied in a statute or rule. The Voting Rights Act reaches changes that affect even a single election. [Footnote 27] As we have noted, the change in the election date in this instance extended the gap between the filing period and the election, possibly preventing relative latecomers from entering the race. In addition, an election in March is likely to draw significantly fewer voters than an election held simultaneously with a general election in November. [Footnote 28] Any doubt that these changes are covered by § 5 is resolved by the construction placed upon the Act by the Attorney Page 470 U. S. 179 General, which is entitled to considerable deference. [Footnote 29] Under Department of Justice regulations:"Any change affecting voting, even though it appears to be minor or indirect, even though it ostensibly expands voting rights, or even though it is designed to remove the elements that caused objection by the Attorney General to a prior submitted change, must meet the Section 5 preclearance requirement."28 CFR § 51.11 (1984).Among the specific examples of changes listed in the regulations is "[a]ny change affecting the eligibility of persons to become or remain candidates." § 51.12. Pursuant to these regulations, the Attorney General has, since 1980, reviewed approximately 58 changes in election dates and approximately 10 changes in dates for candidate filing periods. In none of these instances did the Attorney General advise the covered jurisdiction that its submission was not a "change," and on several occasions objections were interposed. [Footnote 30]Appellees argue that these changes in voting procedures were exempt from preclearance because literal compliance with § 5 was impossible. The Attorney General did not approve the November election date until after that date had passed; hence, it was necessary to schedule another election date. Also, it is said that, if the legislature had passed a statute setting a March election date and submitted it to the Attorney General, preclearance might not have been obtained by the date of the March election. In that event, yet another amendment would have been necessary, requiring yet another submission. The process might have continued ad infinitum. Page 470 U. S. 180To the extent that appellees found themselves in a dilemma, however, it was largely of their own making. Rather than submitting Act No. 549 shortly after its passage, which would have allowed ample time for preclearance before the scheduled opening of the filing period, the State delayed this action for two months. [Footnote 31] Even after Act No. 549 received clearance too late to allow the election to be held in November, appellees might still have submitted the new election date without encountering significant inconvenience. Because the Attorney General must respond to any submission within 60 days after he receives the necessary information, [Footnote 32] appellees need only have selected an election date sufficiently far in the future to allow preclearance.Appellees would have us hold that the changes here at issue did not require preclearance because they were undertaken in good faith, were merely an attempt to implement a statute that had already been approved by the Attorney General, and were therefore an improvement over prior voting procedures. But the Attorney General's approval of Act No. 549 signified only that it was not discriminatory, not that it was an improvement over Act No. 547, which had also been approved. Furthermore, neither the absence of discriminatory purpose nor a good faith implementation of a change removes the potential for discriminatory effects. [Footnote 33] Page 470 U. S. 181 More fundamentally, it is not our province, nor that of the District Court below, to determine whether the changes at issue in this case in fact resulted in impairment of the right to vote, or whether they were intended to have that effect. That task is reserved by statute to the Attorney General or to the District Court for the District of Columbia. Our inquiry is limited to whether the challenged alteration has the potential for discrimination. [Footnote 34] The changes effected here did have such potential, and therefore should have been precleared under § 5.IIIRelying on Berry v. Doles, 438 U. S. 190 (1978), the District Court held as an alternative ground that these changes were implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry involved changes in voting procedures that were implemented without first being submitted to the Attorney General. In a decision rendered after the election had already taken place, a three-judge District Court held that the changes should have been submitted under § 5, and enjoined further enforcement of the statute, but refused to set aside the election. We held that the appropriate remedy was to allow the covered jurisdiction 30 days in which to apply for approval of the change. We further stated:"If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for [a new election.]"Id. at 438 U. S. 193. Page 470 U. S. 182 From this, the District Court drew the conclusion that "a retroactive validation of an election law change under Section 5 could be achieved by after-the-fact federal approval." [Footnote 35]Regardless of whether this is a fair characterization of the holding of Berry, it clearly has no application to the facts of this case. The changes we have identified here -- the retention of an August filing period in conjunction with a March election, and the scheduling of the March election -- had not even been decided upon by state authorities at the time the Attorney General approved Act No. 549. That statute provided for an August filing period and a November election, which, as we have demonstrated, is quite another matter. Even an informal submission of a change in voting procedures does not satisfy the requirements of § 5: the change must be submitted "in some unambiguous and recordable manner." Allen, 393 U.S. at 393 U. S. 571. See also McCain v. Lybrand, 465 U. S. 236 (1984); United States v. Sheffield Board of Comm'rs, 435 U. S. 110, 435 U. S. 136 (1978). A change that was never submitted at all does not meet this standard. The Attorney General cannot be said to have validated these changes, retroactively or otherwise, because they were never before him.IVAppellees' use of an August filing period in conjunction with a March election, and the setting of the March election date itself, were changes that should have been submitted to the Attorney General under § 5. These changes cannot be said to have been approved along with Act No. 549. As in Berry v. Doles, supra, it is appropriate in these circumstances for the District Court to enter an order allowing appellees 30 days in which to submit these changes to the Attorney General for approval. 438 U.S. at 438 U. S. 192-193. If appellees fail to seek this approval, or if approval is not Page 470 U. S. 183 forthcoming, the results of the March 1983 election should be set aside. If, however, the Attorney General determines that the changes had no discriminatory purpose or effect, the District Court should determine, in the exercise of its equitable discretion, whether the results of the election may stand. [Footnote 36]We therefore reverse the District Court's judgment that § 5 was not violated by appellees' failure to secure approval of these changes, and remand for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtNAACP v. Hampton County, 470 U.S. 166 (1985)NAACP v. Hampton County Election CommissionNo. 83-1015Argued November 28, 1984Decided February 27, 1985470 U.S. 166SyllabusSection 5 of the Voting Rights Act provides that covered States or political subdivisions may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General. As of November 1, 1964, the public schools of Hampton County, South Carolina, a covered jurisdiction, were governed by an appointed County Board of Education and an elected Superintendent of Education. The county consists of two School Districts, one where the vast majority of white students live and the other predominantly black. Each District was governed by a Board of Trustees, who were appointed by the County Board of Education. In 1982, the South Carolina General Assembly enacted Act No. 547, providing that the members of the County Board of Education were to be elected at large, rather than appointed. The first election was to be held simultaneously with the general election in November, 1982, and prospective candidates were required to file with appellee Election Commission at least 45 days before the election. Act No. 547 was submitted to the Attorney General for approval under § 5 of the Voting Rights Act, and he informed the State that he had no objection to the change. But in the meantime, before the Attorney General had approved Act No. 547, Act No. 549 was enacted to abolish the County Board of Education and Superintendent and to devolve their duties upon the District Boards of Trustees, which were to be elected separately. The first trustee election was also scheduled to be held with the November general election, and candidates were required to file between August 16 and 31. Act No. 549 was also submitted to the Attorney General for clearance under § 5, and he initially interposed an objection. Nevertheless, the Election Commission, contemplating a reconsideration, continued to accept candidate filings under Act No. 549, and at the same time began accepting filings under Act No. 547. Since the Attorney General had not yet responded to the State's request for reconsideration of his objection to Act No. 549 by the date of the November general election, elections for the County Board of Education were held on that date Page 470 U. S. 167 pursuant to Act No. 547, and no elections were held pursuant to Act No. 549. Thereafter the Attorney General withdrew his objection to Act No. 549, thereby rendering null and void Act No. 547 and the November elections held pursuant thereto. The South Carolina Attorney General then informed the Election Commission that Act No. 549 was in effect, and that an election pursuant thereto should be held. Accordingly, the Commission set March 15, 1983, as election day. Appellants, two civil rights organizations and several residents of Hampton County, filed suit in Federal District Court, seeking to enjoin the election as illegal under § 5 of the Voting Rights Act. The court denied relief, holding that no violation of § 5 had occurred, since, although Act No. 549 itself was a change under the Voting Rights Act, the scheduling of the election and the filing period were simply "ministerial acts necessary to accomplish the statute's purpose, and thus did not require preclearance." The court further held that, even if these acts were "changes," they had now been precleared along with the remaining provisions of Act No. 549.Held: The use of an August filing period in conjunction with a March election, and the setting of the March election itself, were changes that should have been submitted to the Attorney General under § 5 of the Voting Rights Act. Pp. 470 U. S. 174-183.(a) By opening the filing period for School District Trustees before preclearance and scheduling the election for a date four months later than that approved by the Attorney General, the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election. These changes cannot fairly be characterized as "ministerial" in light of the sweeping objectives of the Voting Rights Act. They possibly prevented relative latecomers from entering the race, and, in addition, a March election is likely to draw significantly fewer voters than an election held simultaneously with a November general election. The inquiry here is limited to whether the challenged changes have the potential for discrimination. These changes did have such a potential, and therefore should have been precleared under § 5. Pp. 470 U. S. 174-181.(b) The changes cannot be said to have been implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry v. Doles, 438 U.S. 190, distinguished. Nor can the Attorney General be said to have validated the changes, retroactively or otherwise, because they were never before him. Pp. 470 U. S. 181-182.Reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL and REHNQUIST, JJ., concurred in the judgment. Page 470 U. S. 168

1990_89-1836

JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III and VI, and an opinion with respect to Parts I, II, IV, and V in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join. Page 501 U. S. 1033Hours after his client was indicted on criminal charges, petitioner Gentile, who is a member of the Bar of the State of Nevada, held a press conference. He made a prepared statement, which we set forth in 501 U.S. 1030appa|>Appendix A to this opinion, and then he responded to questions. We refer to most of those questions and responses in the course of our opinion.Some six months later, the criminal case was tried to a jury and the client was acquitted on all counts. The State Bar of Nevada then filed a complaint against petitioner, alleging a violation of Nevada Supreme Court Rule 177, a rule governing pretrial publicity almost identical to ABA Model Rule of Professional Conduct 3.6. We set forth the full text of Rule 177 in 501 U.S. 1030appb|>Appendix B. Rule 177(1) prohibits an attorney from making"an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."Rule 177(2) lists a number of statements that are "ordinarily . . . likely" to result in material prejudice. Rule 177(3) provides a safe harbor for the attorney, listing a number of statements that can be made without fear of discipline notwithstanding the other parts of the Rule.Following a hearing, the Southern Nevada Disciplinary Board of the State Bar found that Gentile had made the statements in question and concluded that he violated Rule 177. The board recommended a private reprimand. Petitioner appealed to the Nevada Supreme Court, waiving the confidentiality of the disciplinary proceeding, and the Nevada court affirmed the decision of the board.Nevada's application of Rule 177 in this case violates the First Amendment. Petitioner spoke at a time and in a manner that neither in law nor in fact created any threat of real prejudice to his client's right to a fair trial or to the State's interest in the enforcement of its criminal laws. Furthermore, the Rule's safe harbor provision, Rule 177(3), appears Page 501 U. S. 1034 to permit the speech in question, and Nevada's decision to discipline petitioner in spite of that provision raises concerns of vagueness and selective enforcement.IThe matter before us does not call into question the constitutionality of other States' prohibitions upon an attorney's speech that will have a "substantial likelihood of materially prejudicing an adjudicative proceeding," but is limited to Nevada's interpretation of that standard. On the other hand, one central point must dominate the analysis: this case involves classic political speech. The State Bar of Nevada reprimanded petitioner for his assertion, supported by a brief sketch of his client's defense, that the State sought the indictment and conviction of an innocent man as a "scapegoat," and had not "been honest enough to indict the people who did it; the police department, crooked cops." See infra, 501 U.S. 1030appa|>Appendix A. At issue here is the constitutionality of a ban on political speech critical of the government and its officials.AUnlike other First Amendment cases this Term in which speech is not the direct target of the regulation or statute in question, see, e.g., Barnes v. Glen Theatre, Inc., ante, p. 501 U. S. 560 (ban on nude barroom dancing); Leathers v. Medlock, 499 U. S. 439 (1991) (sales tax on cable and satellite television), this case involves punishment of pure speech in the political forum. Petitioner engaged not in solicitation of clients or advertising for his practice, as in our precedents from which some of our colleagues would discern a standard of diminished First Amendment protection. His words were directed at public officials and their conduct in office.There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment. Nevada seeks to punish the dissemination of information Page 501 U. S. 1035 relating to alleged governmental misconduct, which only last Term we described as "speech which has traditionally been recognized as lying at the core of the First Amendment." Butterworth v. Smith, 494 U. S. 624, 494 U. S. 632 (1990).The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 838-839 (1978)."[I]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted."Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 448 U. S. 575 (1980). Public vigilance serves us well, for"[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. . . . Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account."In re Oliver, 333 U. S. 257, 333 U. S. 270-271 (1948). As we said in Bridges v. California, 314 U. S. 252 (1941), limits upon public comment about pending cases are"likely to fall not only at a crucial time, but upon the most important topics of discussion. . . .""No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression."Id. at 314 U. S. 268-269. In Sheppard v. Maxwell, 384 U. S. 333, 384 U. S. 350 (1966), we reminded that"[t]he press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption, see Nebraska Press Assn. v. Stuart, 427 U. S. 539, 427 U. S. 606 (1976) (Brennan, J., concurring in judgment) ("[C]ommentary Page 501 U. S. 1036 on the fact that there is strong evidence implicating a government official in criminal activity goes to the very core of matters of public concern"), or where, as is also the present circumstance, the criticism questions the judgment of an elected public prosecutor. Our system grants prosecutors vast discretion at all stages of the criminal process, see Morrison v. Olson, 487 U. S. 654, 487 U. S. 727-728 (1988) (SCALIA, J., dissenting). The public has an interest in its responsible exercise.We are not called upon to determine the constitutionality of the ABA Model Rule of Professional Conduct 3.6 (1981), but only Rule 177 as it has been interpreted and applied by the State of Nevada. Model Rule 3.6's requirement of substantial likelihood of material prejudice is not necessarily flawed. Interpreted in a proper and narrow manner, for instance, to prevent an attorney of record from releasing information of grave prejudice on the eve of jury selection, the phrase substantial likelihood of material prejudice might punish only speech that creates a danger of imminent and substantial harm. A rule governing speech, even speech entitled to full constitutional protection, need not use the words "clear and present danger" in order to pass constitutional muster."Mr. Justice Holmes' test was never intended 'to express a technical legal doctrine or to convey a formula for adjudicating cases.' Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 353 (1946) (Frankfurter, J., concurring). Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State's interests should also be weighed."Landmark Communications, Inc. v. Virginia, supra at 435 U. S. 842-843. Page 501 U. S. 1037The drafters of Model Rule 3.6 apparently thought the substantial likelihood of material prejudice formulation approximated the clear and present danger test. See ABA Annotated Model Rules of Professional Conduct 243 (1984) ("formulation in Model Rule 3.6 incorporates a standard approximating clear and present danger by focusing on the likelihood of injury and its substantiality"; citing Landmark Communications, supra at 435 U. S. 844; Wood v. Georgia, 370 U. S. 375 (1962); and Bridges v. California, supra at 314 U. S. 273, for guidance in determining whether statement "poses a sufficiently serious and imminent threat to the fair administration of justice"); G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 397 (1985) ("To use traditional terminology, the danger of prejudice to a proceeding must be both clear (material) and present (substantially likely)"); In re Hinds, 90 N.J. 604, 622, 449 A.2d 483, 493 (1982) (substantial likelihood of material prejudice standard is a linguistic equivalent of clear and present danger).The difference between the requirement of serious and imminent threat found in the disciplinary rules of some States and the more common formulation of substantial likelihood of material prejudice could prove mere semantics. Each standard requires an assessment of proximity and degree of harm. Each may be capable of valid application. Under those principles, nothing inherent in Nevada's formulation fails First Amendment review; but, as this case demonstrates, Rule 177 has not been interpreted in conformance with those principles by the Nevada Supreme Court.IIEven if one were to accept respondent's argument that lawyers participating in judicial proceedings may be subjected, consistent with the First Amendment, to speech restrictions that could not be imposed on the press or general public, the judgment should not be upheld. The record does Page 501 U. S. 1038 not support the conclusion that petitioner knew or reasonably should have known his remarks created a substantial likelihood of material prejudice, if the Rule's terms are given any meaningful content.We have held that,"in cases raising First Amendment issues . . . , an appellate court has an obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'"Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 466 U. S. 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-286 (1964)).Neither the disciplinary board nor the reviewing court explains any sense in which petitioner's statements had a substantial likelihood of causing material prejudice. The only evidence against Gentile was the videotape of his statement and his own testimony at the disciplinary hearing. The Bar's whole case rests on the fact of the statement, the time it was made, and petitioner's own justifications. Full deference to these factual findings does not justify abdication of our responsibility to determine whether petitioner's statements can be punished consistent with First Amendment standards.Rather, this Court is"compelled to examine for [itself] the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335 (1946)."'Whenever the fundamental rights of free speech . . . are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually Page 501 U. S. 1039 did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.'"Landmark Communications, Inc. v. Virginia, 435 U.S. at 435 U. S. 844 (quoting Whitney v. California, 274 U. S. 357, 274 U. S. 378-379 (1927) (Brandeis, J., concurring)). Whether one applies the standard set out in Landmark Communications or the lower standard our colleagues find permissible, an examination of the record reveals no basis for the Nevada court's conclusion that the speech presented a substantial likelihood of material prejudice.Our decision earlier this Term in Mu'Min v. Virginia, 500 U. S. 415 (1991), provides a pointed contrast to respondent's contention in this case. There, the community had been subjected to a barrage of publicity prior to Mu'Min's trial for capital murder. News stories appeared over a course of several months and included, in addition to details of the crime itself, numerous items of prejudicial information inadmissible at trial. Eight of the twelve individuals seated on Mu'Min's jury admitted some exposure to pretrial publicity. We held that the publicity did not rise even to a level requiring questioning of individual jurors about the content of publicity. In light of that holding, the Nevada court's conclusion that petitioner's abbreviated, general comments six months before trial created a "substantial likelihood of materially prejudicing" the proceeding is, to say the least, most unconvincing.APre-Indictment Publicity. On January 31, 1987, undercover police officers with the Las Vegas Metropolitan Police Department (Metro) reported large amounts of cocaine (four kilograms) and travelers' checks (almost $300,000) missing from a safety deposit vault at Western Vault Corporation. The drugs and money had been used as part of an undercover Page 501 U. S. 1040 operation conducted by Metro's Intelligence Bureau. Petitioner's client, Grady Sanders, owned Western Vault. John Moran, the Las Vegas sheriff, reported the theft at a press conference on February 2, 1987, naming the police and Western Vault employees as suspects.Although two police officers, Detective Steve Scholl and Sergeant Ed Schaub, enjoyed free access to the deposit box throughout the period of the theft, and no log reported comings and goings at the vault, a series of press reports over the following year indicated that investigators did not consider these officers responsible. Instead, investigators focused upon Western Vault and its owner. Newspaper reports quoted the sheriff and other high police officials as saying that they had not lost confidence in the "elite" Intelligence Bureau. From the beginning, Sheriff Moran had "complete faith and trust" in his officers. App. 85.The media reported that, following announcement of the cocaine theft, others with deposit boxes at Western Vault had come forward to claim missing items. One man claimed the theft of his life savings of $90,000. Id. at 89. Western Vault suffered heavy losses as customers terminated their box rentals, and the company soon went out of business. The police opened other boxes in search of the missing items, and it was reported they seized $264,900 in United States currency from a box listed as unrented.Initial press reports stated that Sanders and Western Vault were being cooperative; but, as time went on, the press noted that the police investigation had failed to identify the culprit, and, through a process of elimination, was beginning to point toward Sanders. Reports quoted the affidavit of a detective that the theft was part of an effort to discredit the undercover operation, and that business records suggested the existence of a business relation between Sanders and the targets of a Metro undercover probe. Id. at 85.The deputy police chief announced the two detectives with access to the vault had been "cleared" as possible suspects. Page 501 U. S. 1041 According to an unnamed "source close to the investigation," the police shifted from the idea that the thief had planned to discredit the undercover operation to the theory that the thief had unwittingly stolen from the police. The stories noted that Sanders "could not be reached for comment." Id. at 93.The story took a more sensational turn with reports that the two police suspects had been cleared by police investigators after passing lie detector tests. The tests were administered by one Ray Slaughter. But later, the Federal Bureau of Investigation (FBI) arrested Slaughter for distributing cocaine to an FBI informant, Belinda Antal. It was also reported that the $264,900 seized from the unrented safety deposit box at Western Vault had been stored there in a suitcase owned by one Tammy Sue Markham. Markham was "facing a number of federal drug-related charges" in Tucson, Arizona. Markham reported items missing from three boxes she rented at Western Vault, as did one Beatrice Connick, who, according to press reports, was a Columbian national living in San Diego and "not facing any drug related charges." (As it turned out, petitioner impeached Connick's credibility at trial with the existence of a money laundering conviction.) Connick also was reported to have taken and passed a lie detector test to substantiate her charges. Id. at 94-97. Finally, press reports indicated that Sanders had refused to take a police polygraph examination. Id. at 41. The press suggested that the FBI suspected Metro officers were responsible for the theft, and reported that the theft had severely damaged relations between the FBI and Metro.The Press Conference. Petitioner is a Las Vegas criminal defense attorney, an author of articles about criminal law and procedure, and a former associate dean of the National College for Criminal Defense Lawyers and Public Defenders. Id. at 36-38. Through leaks from the police department, he Page 501 U. S. 1042 had some advance notice of the date an indictment would be returned and the nature of the charges against Sanders. Petitioner had monitored the publicity surrounding the case, and, prior to the indictment, was personally aware of at least 17 articles in the major local newspapers, the Las Vegas Sun and Las Vegas Review-Journal, and numerous local television news stories which reported on the Western Vault theft and ensuing investigation. Id. at 38-39; see Respondent's Exhibit A, before Disciplinary Board. Petitioner determined, for the first time in his career, that he would call a formal press conference. He did not blunder into a press conference, but acted with considerable deliberation.1Petitioner's Motivation. As petitioner explained to the disciplinary board, his primary motivation was the concern that, unless some of the weaknesses in the State's case were made public, a potential jury venire would be poisoned by repetition in the press of information being released by the police and prosecutors, in particular the repeated press reports about polygraph tests and the fact that the two police officers were no longer suspects. App. 40-42. Respondent distorts Rule 177 when it suggests this explanation admits a purpose to prejudice the venire, and so proves a violation of the Rule. Rule 177 only prohibits the dissemination of information that one knows or reasonably should know has a "substantial likelihood of materially prejudicing an adjudicative proceeding." Petitioner did not indicate he thought he could sway the pool of potential jurors to form an opinion in advance of the trial, nor did he seek to discuss evidence that would be inadmissible at trial. He sought only to counter publicity already deemed prejudicial. The Southern Nevada Disciplinary Board so found. It said petitioner attempted Page 501 U. S. 1043"(i) to counter public opinion which he perceived as adverse to Mr. Sanders, (ii) . . . to refute certain matters regarding his client which had appeared in the media, (iii) to fight back against the perceived efforts of the prosecution to poison the prospective juror pool, and (iv) to publicly present Sanders' side of the case."App. 3-4. Far from an admission that he sought to "materially prejudic[e] an adjudicative proceeding," petitioner sought only to stop a wave of publicity he perceived as prejudicing potential jurors against his client and injuring his client's reputation in the community.Petitioner gave a second reason for holding the press conference, which demonstrates the additional value of his speech. Petitioner acted in part because the investigation had taken a serious toll on his client. Sanders was "not a man in good health," having suffered multiple open-heart surgeries prior to these events. Id. at 41. And prior to indictment, the mere suspicion of wrongdoing had caused the closure of Western Vault and the loss of Sanders' ground lease on an Atlantic City, New Jersey, property. Ibid.An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. Page 501 U. S. 10442Petitioner's Investigation of Rule 177. Rule 177 is phrased in terms of what an attorney "knows or reasonably should know." On the evening before the press conference, petitioner and two colleagues spent several hours researching the extent of an attorney's obligations under Rule 177. He decided, as we have held, see Patton v. Yount, 467 U. S. 1025 (1984), that the timing of a statement was crucial in the assessment of possible prejudice and the Rule's application, accord, Stroble v. California, 343 U. S. 181, 343 U. S. 191-194 (1952). App. 44.Upon return of the indictment, the court set a trial date for August, 1988, some six months in the future. Petitioner knew, at the time of his statement, that a jury would not be empaneled for six months at the earliest, if ever. He recalled reported cases finding no prejudice resulting from juror exposure to "far worse" information two and four months before trial, and concluded that his proposed statement was not substantially likely to result in material prejudice. Ibid.A statement which reaches the attention of the venire on the eve of voir dire might require a continuance or cause difficulties in securing an impartial jury, and, at the very least, could complicate the jury selection process. See ABA Annotated Model Rules of Professional Conduct 243 (1984) (timing of statement a significant factor in determining seriousness and imminence of threat). As turned out to be the case here, exposure to the same statement six months prior to trial would not result in prejudice, the content fading from memory long before the trial date.In 1988, Clark County, Nevada, had population in excess of 600,000 persons. Given the size of the community from which any potential jury venire would be drawn and the length of time before trial, only the most damaging of information could give rise to any likelihood of prejudice. The innocuous content of petitioner's statement reinforces my conclusion. Page 501 U. S. 10453The Content of Petitioner's Statement. Petitioner was disciplined for statements to the effect that (1) the evidence demonstrated his client's innocence, (2) the likely thief was a police detective, Steve Scholl, and (3) the other victims were not credible, as most were drug dealers or convicted money launderers, all but one of whom had only accused Sanders in response to police pressure, in the process of "trying to work themselves out of something." 501 U.S. 1030appa|>Appendix A, infra, at 1059. App. 2-3 (Findings and Recommendation of the State Bar of Nevada, Southern Nevada Disciplinary Board). He also strongly implied that Steve Scholl could be observed in a videotape suffering from symptoms of cocaine use. Of course, only a small fraction of petitioner's remarks were disseminated to the public, in two newspaper stories and two television news broadcasts.The stories mentioned not only Gentile's press conference but also a prosecution response and police press conference. See App. 127-129, 131-132; Respondent's Exhibit A, before Disciplinary Board. [Footnote 1] The chief deputy district attorney was Page 501 U. S. 1046 quoted as saying that this was a legitimate indictment, and that prosecutors cannot bring an indictment to court unless they can prove the charges in it beyond a reasonable doubt. App. 128-129. Deputy Police Chief Sullivan stated for the police department:"'We in Metro are very satisfied our officers (Scholl and Sgt. Ed Schaub) had nothing to do with this theft or any other. They are both above reproach. Both are veteran police officers who are dedicated to honest law enforcement.'"Id. at 129. In the context of general public awareness, these police and prosecution statements were no more likely to result in prejudice than was petitioner's statement, but given the repetitive publicity from the police investigation, it is difficult to come to any conclusion but that the balance remained in favor of the prosecution.Much of the information provided by petitioner had been published in one form or another, obviating any potential for prejudice. See ABA Annotated Model Rules of Professional Conduct 243 (1984) (extent to which information already circulated significant factor in determining likelihood of prejudice). The remainder, and details petitioner refused to provide, were available to any journalist willing to do a little bit of investigative work.Petitioner's statement lacks any of the more obvious bases for a finding of prejudice. Unlike the police, he refused to comment on polygraph tests except to confirm earlier reports that Sanders had not submitted to the police polygraph; he mentioned no confessions and no evidence from searches or test results; he refused to elaborate upon his charge that the other so-called victims were not credible, except to explain his general theory that they were pressured to testify in an attempt to avoid drug-related legal trouble, and that some of Page 501 U. S. 1047 them may have asserted claims in an attempt to collect insurance money.CEvents Following the Press Conference. Petitioner's judgment that no likelihood of material prejudice would result from his comments was vindicated by events at trial. While it is true that Rule 177's standard for controlling pretrial publicity must be judged at the time a statement is made, ex post evidence can have probative value in some cases. Here, where the Rule purports to demand, and the Constitution requires, consideration of the character of the harm and its heightened likelihood of occurrence, the record is altogether devoid of facts one would expect to follow upon any statement that created a real likelihood of material prejudice to a criminal jury trial.The trial took place on schedule in August, 1988, with no request by either party for a venue change or continuance. The jury was empaneled with no apparent difficulty. The trial judge questioned the jury venire about publicity. Although many had vague recollections of reports that cocaine stored at Western Vault had been stolen from a police undercover operation, and, as petitioner had feared, one remembered that the police had been cleared of suspicion, not a single juror indicated any recollection of petitioner or his press conference. App. 48-49; Respondent's Exhibit B, before Disciplinary Board.At trial, all material information disseminated during petitioner's press conference was admitted in evidence before the jury, including information questioning the motives and credibility of supposed victims who testified against Sanders, and Detective Scholl's ingestion of drugs in the course of undercover operations (in order, he testified, to gain the confidence of suspects). App. 47. The jury acquitted petitioner's client, and, as petitioner explained before the disciplinary board, Page 501 U. S. 1048"when the trial was over with and the man was acquitted, the next week, the foreman of the jury phoned me and said to me that, if they would have had a verdict form before them with respect to the guilt of Steve Scholl. they would have found the man proven guilty beyond a reasonable doubt."Id. at 47-48. There is no support for the conclusion that petitioner's statement created a likelihood of material prejudice, or indeed of any harm of sufficient magnitude or imminence to support a punishment for speech.IIIAs interpreted by the Nevada Supreme Court, the Rule is void for vagueness, in any event, for its safe harbor provision, Rule 177(3), misled petitioner into thinking that he could give his press conference without fear of discipline. Rule 177(3)(a) provides that a lawyer "may state without elaboration . . . the general nature of the . . . defense." Statements under this provision are protected "[n]otwithstanding subsection 1 and 2 (a-f)." By necessary operation of the word "notwithstanding," the Rule contemplates that a lawyer describing the "general nature of the . . . defense" "without elaboration" need fear no discipline, even if he comments on "[t]he character, credibility, reputation or criminal record of a . . . witness," and even if he"knows or reasonably should know that [the statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding."Given this grammatical structure, and absent any clarifying interpretation by the state court, the Rule fails to provide "fair notice to those to whom [it] is directed.'" Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 112 (1972). A lawyer seeking to avail himself of Rule 177(3)'s protection must guess at its contours. The right to explain the "general" nature of the defense without "elaboration" provides insufficient guidance because "general" and "elaboration" are both classic Page 501 U. S. 1049 terms of degree. In the context before us, these terms have no settled usage or tradition of interpretation in law. The lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated.Petitioner testified he thought his statements were protected by Rule 177(3), App. 59. A review of the press conference supports that claim. He gave only a brief opening statement, see Appendix A, infra, at 501 U. S. 1059-1060, and on numerous occasions declined to answer reporters' questions seeking more detailed comments. One illustrative exchange shows petitioner's attempt to obey the rule:"QUESTION FROM THE FLOOR: Dominick, you mention you question the credibility of some of the witnesses, some of the people named as victims in the government indictment.""Can we go through it and elaborate on their backgrounds, interests -- ""MR. GENTILE: I can't, because ethics prohibit me from doing so.""Last night, before I decided I was going to make a statement, I took a good close look at the rules of professional responsibility. There are things that I can say and there are things that I can't. Okay?""I can't name which of the people have the drug backgrounds. I'm sure you guys can find that by doing just a little bit of investigative work."App. to Pet. for Cert. 11a (emphasis added). [Footnote 2] Page 501 U. S. 1050 Nevertheless, the disciplinary board said only that petitioner's comments "went beyond the scope of the statements permitted by SCR 177(3)," App. 5, and the Nevada Supreme Page 501 U. S. 1051 Court's rejection of petitioner's defense based on Rule 177(3) was just as terse, App. to Pet. for Cert. 4a. The fact that Gentile was found in violation of the Rules after studying them and making a conscious effort at compliance demonstrates that Rule 177 creates a trap for the wary, as well as the unwary.The prohibition against vague regulations of speech is based in part on the need to eliminate the impermissible risk of discriminatory enforcement, Kolender v. Lawson, 461 U. S. 352, 461 U. S. 357-358, 361 (1983); Smith v. Goguen, 415 U. S. 566, 415 U. S. 572-573 (1974), for history shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law. The question is not whether discriminatory enforcement occurred here, and we assume it did not, but whether the Rule is so imprecise that discriminatory enforcement is a real possibility. The inquiry is of particular relevance when one of the classes most affected by the regulation is the criminal defense bar, which has the professional mission to challenge actions of the State. Petitioner, for instance, succeeded in preventing the conviction of his client, and the speech in issue involved criticism of the government.IVThe analysis to this point resolves the case, and, in the usual order of things, the discussion should end here. Five Members of the Court, however, endorse an extended discussion which concludes that Nevada may interpret its requirement of substantial likelihood of material prejudice under a standard more deferential than is the usual rule where speech is concerned. It appears necessary, therefore, to set forth my objections to that conclusion and to the reasoning which underlies it.Respondent argues that speech by an attorney is subject to greater regulation than speech by others, and restrictions on an attorney's speech should be assessed under a balancing test that weighs the State's interest in the regulation of a Page 501 U. S. 1052 specialized profession against the lawyer's First Amendment interest in the kind of speech that was at issue. The cases cited by our colleagues to support this balancing, Bates v. State Bar of Arizona, 433 U. S. 350 (1977); Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91 (1990); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978); and Seattle Times Co. v. Rhinehart, 467 U. S. 20 (1984), involved either commercial speech by attorneys or restrictions upon release of information that the attorney could gain only by use of the court's discovery process. Neither of those categories, nor the underlying interests which justified their creation, were implicated here. Petitioner was disciplined because he proclaimed to the community what he thought to be a misuse of the prosecutorial and police powers. Wide-open balancing of interests is not appropriate in this context.ARespondent would justify a substantial limitation on speech by attorneys because"lawyers have special access to information, including confidential statements from clients and information obtained through pretrial discovery or plea negotiations,"and so lawyers' statements "are likely to be received as especially authoritative." Brief for Respondent 22. Rule 177, however, does not reflect concern for the attorney's special access to client confidences, material gained through discovery, or other proprietary or confidential information. We have upheld restrictions upon the release of information gained "only by virtue of the trial court's discovery processes." Seattle Times Co. v. Rhinehart, supra at 467 U. S. 32. And Seattle Times would prohibit release of discovery information by the attorney, as well as the client. Similar rules require an attorney to maintain client confidences. See, e.g., ABA Model Rule of Professional Conduct 1.6 (1981).This case involves no speech subject to a restriction under the rationale of Seattle Times. Much of the information in Page 501 U. S. 1053 petitioner's remarks was included by explicit reference or fair inference in earlier press reports. Petitioner could not have learned what he revealed at the press conference through the discovery process or other special access afforded to attorneys, for he spoke to the press on the day of indictment, at the outset of his formal participation in the criminal proceeding. We have before us no complaint from the prosecutors, police, or presiding judge that petitioner misused information to which he had special access. And there is no claim that petitioner revealed client confidences, which may be waived, in any event. Rule 177, on its face and as applied here, is neither limited to nor even directed at preventing release of information received through court proceedings or special access afforded attorneys. Cf. Butterworth v. Smith, 494 U.S. at 494 U. S. 632-634. It goes far beyond this.BRespondent relies upon obiter dicta from In re Sawyer, 360 U. S. 622 (1959), Sheppard v. Maxwell, 384 U. S. 333 (1966), and Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), for the proposition that an attorney's speech about ongoing proceedings must be subject to pervasive regulation in order to ensure the impartial adjudication of criminal proceedings. In re Sawyer involved general comments about Smith Act prosecutions, rather than the particular proceeding in which the attorney was involved, conduct which we held not sanctionable under the applicable ABA Canon of Professional Ethics, quite apart from any resort to First Amendment principles. Nebraska Press Assn. considered a challenge to a court order barring the press from reporting matters most prejudicial to the defendant's Sixth Amendment trial right, not information released by defense counsel. In Sheppard v. Maxwell, we overturned a conviction after a trial that can only be described as a circus, with the courtroom taken over by the press and jurors turned into media stars. The prejudice to Dr. Sheppard's fair trial right can be traced in principal Page 501 U. S. 1054 part to police and prosecutorial irresponsibility and the trial court's failure to control the proceedings and the courthouse environment. Each case suggests restrictions upon information release, but none confronted their permitted scope.At the very least, our cases recognize that disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment, and that First Amendment protection survives even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law. See, e.g., In re Primus, 436 U. S. 412 (1978); Bates v. State Bar of Arizona, supra. We have not in recent years accepted our colleagues' apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms. And none of the justifications put forward by respondent suffice to sanction abandonment of our normal First Amendment principles in the case of speech by an attorney regarding pending cases.VEven if respondent is correct, and, as in Seattle Times, we must balance"whether the 'practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression' and whether 'the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved,'"Seattle Times, supra at 467 U. S. 32 (quoting Procunier v. Martinez, 416 U. S. 396, 416 U. S. 413 (1974)), the Rule, as interpreted by Nevada, fails the searching inquiry required by those precedents.AOnly the occasional case presents a danger of prejudice from pretrial publicity. Empirical research suggests that, in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it Page 501 U. S. 1055 and base their verdict upon the evidence presented in court. See generally Simon, Does the Court's Decision in Nebraska Press Association Fit the Research Evidence on the Impact on Jurors of News Coverage?, 29 Stan.L.Rev. 515 (1977); Drechsel, An Alternative View of Media-Judiciary Relations: What the Non-Legal Evidence Suggests About the Fair Trial-Free Press Issue, 18 Hofstra L.Rev. 1 (1989). Voir dire can play an important role in reminding jurors to set aside out-of-court information and to decide the case upon the evidence presented at trial. All of these factors weigh in favor of affording an attorney's speech about ongoing proceedings our traditional First Amendment protections. Our colleagues' historical survey notwithstanding, respondent has not demonstrated any sufficient state interest in restricting the speech of attorneys to justify a lower standard of First Amendment scrutiny.Still less justification exists for a lower standard of scrutiny here, as this speech involved not the prosecutor or police, but a criminal defense attorney. Respondent and its amici present not a single example where a defense attorney has managed by public statements to prejudice the prosecution of the State's case. Even discounting the obvious reason for a lack of appellate decisions on the topic -- the difficulty of appealing a verdict of acquittal -- the absence of anecdotal or survey evidence in a much-studied area of the law is remarkable.The various bar association and advisory commission reports which resulted in promulgation of ABA Model Rule of Professional Conduct 3.6 (1981), and other regulations of attorney speech, and sources they cite, present no convincing case for restrictions upon the speech of defense attorneys. See Swift, Model Rule 3.6: An Unconstitutional Regulation of Defense Attorney Trial Publicity, 64 B.U.L.Rev. 1003, 1031-1049 (1984) (summarizing studies and concluding there is no empirical or anecdotal evidence of a need for restrictions on defense publicity); see also Drechsel, supra at 35 ("[D]ata Page 501 U. S. 1056 showing the heavy reliance of journalists on law enforcement sources and prosecutors confirms the appropriateness of focusing attention on those sources when attempting to control pretrial publicity"). The police, the prosecution, other government officials, and the community at large hold innumerable avenues for the dissemination of information adverse to a criminal defendant, many of which are not within the scope of Rule 177 or any other regulation. By contrast, a defendant cannot speak without fear of incriminating himself and prejudicing his defense, and most criminal defendants have insufficient means to retain a public relations team apart from defense counsel for the sole purpose of countering prosecution statements. These factors underscore my conclusion that blanket rules restricting speech of defense attorneys should not be accepted without careful First Amendment scrutiny.BRespondent uses the "officer of the court" label to imply that attorney contact with the press somehow is inimical to the attorney's proper role. Rule 177 posits no such inconsistency between an attorney's role and discussions with the press. It permits all comment to the press absent "a substantial likelihood of materially prejudicing an adjudicative proceeding." Respondent does not articulate the principle that contact with the press cannot be reconciled with the attorney's role or explain how this might be so.Because attorneys participate in the criminal justice system and are trained in its complexities, they hold unique qualifications as a source of information about pending cases."Since lawyers are considered credible in regard to pending litigation in which they are engaged and are in one of the most knowledgeable positions, they are a crucial source of information and opinion."Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 250 (CA7 1975). To the extent the press and public rely upon attorneys for information because attorneys are well informed, this may prove the value to the Page 501 U. S. 1057 public of speech by members of the bar. If the dangers of their speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.One may concede the proposition that an attorney's speech about pending cases may present dangers that could not arise from statements by a nonparticipant, and that an attorney's duty to cooperate in the judicial process may prevent him or her from taking actions with an intent to frustrate that process. The role of attorneys in the criminal justice system subjects them to fiduciary obligations to the court and the parties. An attorney's position may result in some added ability to obstruct the proceedings through well timed statements to the press, though one can debate the extent of an attorney's ability to do so without violating other established duties. A court can require an attorney's cooperation to an extent not possible of nonparticipants. A proper weighing of dangers might consider the harm that occurs when speech about ongoing proceedings forces the court to take burdensome steps such as sequestration, continuance, or change of venue.If, as a regular matter, speech by an attorney about pending cases raised real dangers of this kind, then a substantial governmental interest might support additional regulation of speech. But this case involves the sanction of speech so innocuous, and an application of Rule 177(3)'s safe harbor provision so begrudging, that it is difficult to determine the force these arguments would carry in a different setting. The instant case is a poor vehicle for defining with precision the outer limits under the Constitution of a court's ability to regulate an attorney's statements about ongoing adjudicative proceedings. At the very least, however, we can say that the Rule which punished petitioner's statement represents a limitation of First Amendment freedoms greater than is necessary Page 501 U. S. 1058 or essential to the protection of the particular governmental interest, and does not protect against a danger of the necessary gravity, imminence, or likelihood.The vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system. Though cost and delays undermine it in all too many cases, the American judicial trial remains one of the purest, most rational forums for the lawful determination of disputes. A profession which takes just pride in these traditions may consider them disserved if lawyers use their skills and insight to make untested allegations in the press, instead of in the courtroom. But constraints of professional responsibility and societal disapproval will act as sufficient safeguards in most cases. And, in some circumstances, press comment is necessary to protect the rights of the client and prevent abuse of the courts. It cannot be said that petitioner's conduct demonstrated any real or specific threat to the legal process, and his statements have the full protection of the First Amendment. [Footnote 3]VIThe judgment of the Supreme Court of Nevada isReversed

U.S. Supreme CourtGentile v. State Bar of Nevada, 501 U.S. 1030 (1991)Gentile v. State Bar of NevadaNo. 89-1836Argued April 15, 1991Decided June 27, 1991501 U.S. 1030SyllabusPetitioner Gentile, an attorney, held a press conference the day after his client, Sanders, was indicted on criminal charges under Nevada law. Six months later, a jury acquitted Sanders. Subsequently, respondent State Bar of Nevada filed a complaint against Gentile, alleging that statements he made during the press conference violated Nevada Supreme Court Rule 177, which prohibits a lawyer from making extrajudicial statements to the press that he knows or reasonably should know will have a "substantial likelihood of materially prejudicing" an adjudicative proceeding, 177(1), which lists a number of statements that are "ordinarily . . . likely" to result in material prejudice, 177(2), and which provides that a lawyer "may state without elaboration . . . the general nature of the . . . defense" "[n]otwithstanding subsection 1 and 2 (a-f)," 177(3). The Disciplinary Board found that Gentile violated the Rule and recommended that he be privately reprimanded. The State Supreme Court affirmed, rejecting his contention that the Rule violated his right to free speech.Held: The judgment is reversed.106 Nev. 60, 787 P.2d 386, reversed.JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts III and VI, concluding that, as interpreted by the Nevada Supreme Court, Rule 177 is void for vagueness. Its safe harbor provision, Rule 177(3), misled Gentile into thinking that he could give his press conference without fear of discipline. Given the Rule's grammatical structure and the absence of a clarifying interpretation by the state court, the Rule fails to provide fair notice to those to whom it is directed, and is so imprecise that discriminatory enforcement is a real possibility. By necessary operation of the word "notwithstanding," the Rule contemplates that a lawyer describing the "general" nature of the defense without "elaboration" need fear no discipline even if he knows or reasonably should know that his statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Both "general" and "elaboration" are classic terms of degree which, in this context, have no settled usage or tradition of interpretation in law, and thus a lawyer has no principle for determining when his remarks pass from the permissible to the forbidden. A review of the press conference -- where Gentile made only a brief opening statement and declined to answer reporters' Page 501 U. S. 1031 questions seeking more detailed comments -- supports his claim that he thought his statements were protected. That he was found in violation of the Rules after studying them and making a conscious effort at compliance shows that Rule 177 creates a trap for the wary as well as the unwary. Pp. 501 U. S. 1048-1051.THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II, concluding that the "substantial likelihood of material prejudice" test applied by Nevada and most other States satisfies the First Amendment. Pp. 501 U. S. 1065-1076.(a) The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than the "clear and present danger" of actual prejudice or imminent threat standard established for regulation of the press during pending proceedings. See, e.g., Nebraska Press Assn. v. Stuart, 427 U. S. 539. A lawyer's right to free speech is extremely circumscribed in the courtroom, see, e.g., Sacher v. United States, 343 U. S. 1, 343 U. S. 8, and, in a pending case, is limited outside the courtroom as well, see, e.g., Sheppard v. Maxwell, 384 U. S. 333, 384 U. S. 363. Cf. Seattle Times Co. v. Rhinehart, 467 U. S. 20. Moreover, this Court's decisions dealing with a lawyer's First Amendment right to solicit business and advertise have not suggested that lawyers are protected to the same extent as those engaged in other businesses, but have balanced the State's interest in regulating a specialized profession against a lawyer's First Amendment interest in the kind of speech at issue. See, e.g., Bates v. State Bar of Arizona, 433 U. S. 350. Pp. 501 U. S. 1065-1075.(b) The "substantial likelihood of material prejudice" standard is a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials. Lawyers in such cases are key participants in the criminal justice system, and the State may demand some adherence to that system's precepts in regulating their speech and conduct. Their extrajudicial statements pose a threat to a pending proceeding's fairness, since they have special access to information through discovery and client communication, and since their statements are likely to be received as especially authoritative. The standard is designed to protect the integrity and fairness of a State's judicial system and imposes only narrow and necessary limitations on lawyers' speech. Those limitations are aimed at comments that are likely to influence a trial's outcome or prejudice the jury venire, even if an untainted panel is ultimately found. Few interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and the State has a substantial interest in preventing officers of the court from imposing costs on the judicial system and litigants arising from measures, such as a change of venue, to ensure Page 501 U. S. 1032 a fair trial. The restraint on speech is narrowly tailored to achieve these objectives, since it applies only to speech that is substantially likely to have a materially prejudicial effect, is neutral to points of view, and merely postpones the lawyer's comments until after the trial. Pp. 501 U. S. 1075-1076.KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III and VI, in which MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Parts I, II, IV, and V, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, C.J., delivered the opinion of the Court with respect to Parts I and II, in which WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined, and a dissenting opinion with respect to Part III, in which WHITE, SCALIA, and SOUTER, JJ., joined, post, p. 501 U. S. 1062. O'CONNOR, J., filed a concurring opinion, post, p. 501 U. S. 1081.

1997_96-1569

THOMAS, J., delivered the opinion for a unanimous Court.Charles Rothfeld argued the cause for petitioners. On the briefs were Thomas E. Shirley, Bruce A. Assad, and Robert J. Marchand.Harvey A. Schwartz argued the cause for respondent.With him on the brief were Siobhan M. Sweeney and Eric Schnapper. *JUSTICE THOMAS delivered the opinion of the Court.It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below.IRespondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including*Briefs of amici curiae urging reversal were filed for the City of Fall River, Massachusetts, by Thomas F. McGuire, Jr., and Mary E. O'Neil; for the Massachusetts Municipal Association et al. by George J. Leontire; and for the National League of Cities et al. by Richard Ruda and Charles Rothfeld.47petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment.While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law.Respondent then filed suit under Rev. Stat. § 1979, 42 U. S. C. § 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057-PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert.1.The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimina-48tion of her position.1 On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." Id., at 20.The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan. Scott-Harris v. Fall River, 134 F.3d 427 (1997).2 Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," id., at 440, it held that their challenged conduct was not "legislative," id., at 441. Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decisionmaking calculus." Ibid. We granted certiorari. 520 U. S. 1263 (1997).IIThe principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots1 Respondent dropped several other defendants from the suit, and the District Court directed a verdict in favor of defendant Robert Connors, the Fall River City Administrator. Only the city, Bogan, and Roderick were appellants in the Court of Appeals, and only the latter two are petitioners in this Court.2 The court held that the city was not liable because the jury could reasonably infer unlawful intent only as to two of the city council members, and municipal liability could not rest "on so frail a foundation." 134 F. 3d, at 440.49in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Tenney v. Brandhove, 341 U. S. 367, 372 (1951). The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, § 6; Tenney, supra, at 372-375.Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities. See Tenney, supra (state legislators); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 (1979) (regional legislators); 3 see also Kilbourn v. Thompson, 103 U. S. 168, 202-204 (1881) (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, § 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of § 1983 to "impinge on a tradition so well grounded in history and reason." Tenney, supra, at 376. Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities.The common law at the time § 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for3 The "regional" legislature in Lake Country Estates was the governing body of an agency created by a compact between two States to coordinate and regulate development in a region encompassing portions of both States. Lake Country Estates v. Tahoe Regional Planning Agency, 440 U. S., at 394.50their discretionary decisions. Wilson v. New York, 1 Denio 595 (1845). The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done." Id., at 599.4 These principles, according to the court, were "too familiar and well settled to require illustration or authority." Id., at 599-600.Shortly after § 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. Jones v. Loving, 55 Miss. 109, 30 Am. Rep. 508 (1877). The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." Id., at 111, 30 Am. Rep., at 509. The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with4 The court distinguished "discretionary" duties, which were protected absolutely, and "ministerial" duties, which were not. Although the court described the former as "judicial" in nature, it was merely using the term broadly to encompass the "discretionary" acts of officials. See 1 Denio, at 599 ("[I]f his powers are discretionary, to be exerted or withheld, according to his own view of what is necessary and proper, they are in their nature judicial"). The legislators' actions in Wilson were unquestionably legislative in both form and substance. Thus, Wilson was widely, and correctly, cited as a leading case regarding legislative immunity. See, e. g., T. Cooley, Law of Torts 377, n. 1 (1880) (hereinafter Cooley); F. Mechem, Law of Public Offices and Officers § 644, p. 431, n. 1 (1890) (hereinafter Mechem); M. Throop, Law Relating to Public Officers § 709, p. 671, n. 1 (1892).51all the immunities of government, and are exempt from all liability for their mistaken use." Ibid.Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations § 313, pp. 326-327 (3d ed. 1881) (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law § 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem §§ 644-646 (same); Throop, supra n. 4, § 709, at 671 (same).Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., Morris v. The People, 3 Denio 381, 395 (N. Y. 1846) (noting that the duty was "of a ministerial character only"); Caswell v. Allen, 7 Johns. 63, 68 (N. Y. 1810) (holding supervisors liable because the act was "mandatory" and "[n]o discretion appear[ed] to [have been] given to the supervisors"). Respondent's heavy reliance on our decision in Amy v. Supervisors, 11 Wall. 136 (1871), is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. Id., at 138 ("The rule is well settled, that where the law re-52quires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct"). The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem § 647 (same).Absolute immunity for local legislators under § 1983 finds support not only in history, but also in reason. See Tenney v. Brandhove, 341 U. S., at 376 (stating that Congress did not intend for § 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U. S. 265, 279 (1990) (noting, in the context of addressing local legislative action, that "any restriction on a legislator's freedom undermines the 'public good' by interfering with the rights of the people to representation in the democratic process"); see also Kilbourn v. Thompson, 103 U. S., at 201-204 (federal legislators); Tenney, supra, at 377 (state legislators); Lake Country Estates, 440 U. S., at 405 (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U. S. 800, 816 (1982).53Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country Estates, supra, at 405, n. 29 (citing Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978)). And, of course, the ultimate check on legislative abuse-the electoral process-applies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Tenney, supra, at 378 (stating that "[s]elfdiscipline and the voters must be the ultimate reliance for discouraging or correcting such abuses").Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country Estates. There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on Tenney's description of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country Estates, 440 U. S., at 404, n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionallya function performed by local governments." Id., at 401-402.5 Thus, we now make explicit what was implicit5 It is thus not surprising that several Members of this Court have recognized that the rationale of Lake Country Estates essentially settled the question of immunity for local legislators. See Owen v. Independence, 445 U. S. 622, 664, n. 6 (1980) (Powell, J., dissenting); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 407-408 (1979) (Marshall, J., dissenting in part); see also Spallone v. United States, 49354in our precedents: Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities.IIIAbsolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." Tenney, supra, at 376. The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F. 3d, at 441. Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative.Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten-u. S. 265, 278 (1990) (explaining that the same considerations underlying Tenney and Lake Country Estates applied to contempt sanctions against local legislators). In fact, the argument for absolute immunity for local legislators may be stronger than for the regional legislators in Lake Country Estates, because immunity was historically granted to local legislators and because the legislators in Lake Country Estates were unelected and thus less directly accountable to the public. See Lake Country Estates, supra, at 407 (Marshall, J., dissenting in part).55ney, 341 U. S., at 377 (internal quotation marks omitted). Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." Ibid. We therefore held that the defendant in Tenney had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." Id., at 371 (internal quotation marks omitted).This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719, 731-734 (1980); Bogan's actions were legislative because they were integral steps in the legislative process. Cf. Edwards v. United States, 286 U. S. 482, 490 (1932) (noting "the legislative character of the President's function in approving or disapproving bills"); Smiley v. Holm, 285 U. S. 355, 372-373 (1932) (recognizing that a Governor's signing or vetoing of a bill constitutes part of the legislative process).Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policymaking decision implicating the budgetary pri-56orities of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Tenney, supra, at 379. Thus, petitioners' activities were undoubtedly legislative.***For the foregoing reasons, the judgment of the Court of Appeals is reversed.6It is so ordered

OCTOBER TERM, 1997SyllabusBOGAN ET AL. v. SCOTT-HARRISCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUITNo. 96-1569. Argued December 3, 1997-Decided March 3,1998Respondent Scott-Harris filed suit under 42 U. S. C. § 1983 against the city of Fall River, Massachusetts, petitioners Bogan (the city's mayor) and Roderick (the vice president of the city council), and other officials, alleging that the elimination of the city department in which Scott-Harris was the sole employee was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing a complaint against another city employee. The District Court twice denied petitioners' motions to dismiss on the ground of absolute immunity from suit. The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city and petitioners liable on respondent's First Amendment claim. The First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan. Although concluding that petitioners have absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities, that court held that their conduct in introducing, voting for, and signing the ordinance that eliminated respondent's office was not "legislative." Relying on the jury's finding that respondent's constitutionally sheltered speech was a substantial or motivating factor underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan relied on facts relating to a particular individual, respondent, in the decisionmaking calculus.Held:1. Local legislators are entitled to the same absolute immunity from civil liability under § 1983 for their legislative activities as has long been accorded to federal, state, and regional legislators. See, e. g., Tenney v. Brandhove, 341 U. S. 367, 372, 372-376; Amy v. Supervisors, 11 Wall. 136, 138, distinguished. Such immunity finds pervasive support not only in common-law cases and older treatises, but also in reason. See Tenney, 341 U. S., at 376. The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See, e. g., id., at 377. Furthermore, the time and energy required to defend against a lawsuit are45of particular concern at the local level, where the part-time citizenlegislator remains commonplace. See ibid. And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civilliability. See Harlow v. Fitzgerald, 457 U. S. 800, 827 (Burger, C. J., dissenting). Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government, including the availability of municipal liability for constitutional violations, e. g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 405, n. 29, and the ultimate check on legislative abuse, the electoral process, cf. Tenney, supra, at 378. Indeed, any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by Lake Country Estates, supra, at 401-402. pp.48-54.2. Petitioners' actions in this case were protected by absolute immunity, which attaches to all acts taken "in the sphere of legitimate legislative activity." Tenney, 341 U. S., at 376. The First Circuit erroneously relied on petitioners' subjective intent in resolving whether their acts so qualified. Whether an act is legislative turns on the nature of the act itself, rather than on the motive or intent of the official performing it. Id., at 370, 377. This Court has little trouble concluding that, stripped of all considerations of intent and motive, petitioners' actions were legislative. Most evidently, petitioner Roderick's acts of voting for the ordinance eliminating respondent's office were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget that proposed the elimination of city jobs and his signing the ordinance into law also were formally legislative, even though he was an executive official. Officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719, 731-334; Bogan's actions were legislative because they were integral steps in the legislative process. Cf., e. g., Edwards v. United States, 286 U. S. 482, 490. Furthermore, this particular ordinance, in substance, bore all the hallmarks of traditional legislation: It reflected a discretionary, policymaking decision implicating the city's budgetary priorities and its services to constituents; it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office; and, in eliminating respondent's office, it governed in a field where legislators traditionally have power to act, Tenney, supra, at 379. pp.54-56.134 F.3d 427, reversed.46Full Text of Opinion

1964_138

MR. JUSTICE CLARK delivered the opinion of the Court.These consolidated cases involve claims of United Air Lines (United) and the Association for the Benefit of Non-Contract Employees of United (the Association), attacking the form of ballot that the Board intends to use in a representation election among United's employees under § 2, Ninth of the Railway Labor Act, 44 Stat. 577, Page 380 U. S. 653 as amended, 45 U.S.C. § 152, Ninth (1958 ed.). [Footnote 1] United also contends that the National Mediation Board (Board) should hold a hearing under the same section, with its participation, to determine the appropriate craft or class in which the election should be held. Before the Board, the conflicting unions-- Brotherhood of Railway and Steamship Clerks (Brotherhood) and International Association of Machinists (Machinists) -- agreed that the appropriate craft or class in which the election should be held was "clerical, office, stores, fleet and passenger service employees"; over the objection of United, the Board ordered an election in this unit to determine which union, if either, would be its bargaining representative. United then filed suit against the Board raising the questions it presses here. This case was dismissed, and is here, after affirmance by Page 380 U. S. 654 the Court of Appeals, as No. 139. After this dismissal, the Association filed suit against the Board, the Brotherhood being permitted to intervene, and raised substantially the same claims. The District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective bargaining representation; the other issues were remanded to the Board for further consideration. 218 F. Supp. 114. The Court of Appeals affirmed these cases by a divided court, and they are here as Nos. 138 and 369. 117 U.S.App.D.C. 387, 330 F.2d 853. Judge Wright, dissenting, thought the District Court was without jurisdiction to enjoin the Board from conducting a representation election, citing Switchmen's Union v. National Mediation Board, 320 U. S. 297 (1943). We granted certiorari in all three of the cases. 379 U.S. 814.We hold that the Board satisfied its statutory duty to investigate the dispute; that United is not entitled to be a party to proceedings by which the Board determines the scope of the appropriate craft or class; and that the Board's choice of ballot for its future elections does not exceed its statutory authority, and is therefore not open to judicial review.1. THE FACTSIn January, 1947, after lengthy hearings in which United and other airlines participated at the request of the Board, it was determined that the "clerical, office, stores, fleet and passenger service" grouping of employees constituted an appropriate craft or class, within the meaning of the Act, for collective bargaining purposes. Case No. R-1706, N.M.B. Determinations of Craft or Class 423 (1948). All of the parties here, save the Association, participated in this public hearing. Since that time, they have participated in other cases involving the same questions decided in R-1706, but, with some exceptions, the Page 380 U. S. 655 Board has continued through the years to hold elections in that craft or class.In August, 1962, the Brotherhood filed with the Board an application under § 2, Ninth, to investigate a representation dispute among employees of United. In its original application, the Brotherhood proposed to exclude those stores and fleet service personnel then represented by the Machinists. After the Board had advised United and the Machinists of the Brotherhood's application, each informed the Board that, in its opinion, the application should be dismissed because it did not conform to what the Board had found to constitute a craft or class in Case No. R-1706, supra. Alternatively, United requested that, if dismissal was not in order, the Board should hold hearings to determine the proper craft or class in which the election should be held. Upon receiving notice of this opposition, the Brotherhood amended its application to include the full craft or class approved in R-1706. The Machinists then agreed that this was the appropriate unit in which to conduct the election.The Board concluded that a dispute existed requiring an election, and scheduled one for January, 1963. It proposed to use its standard form of ballot, which provided for the printing of the names of the labor organizations -- in this case, the Brotherhood and the Machinists -- with a box below each name for the employee to check the representative preferred. A third space was provided in which the employee could write in the name of any other organization or individual he wished to represent him. There was not a place on the ballot in which the employee could vote specifically for "no union."The Board, on December 19, 1962, directed that a list of the employees involved be supplied by United not later than January 14, 1963. On January 11, United advised that the request was premature, and requested a hearing as to the scope of the unit involved in the Brotherhood's Page 380 U. S. 656 amended application. It outlined in some detail the past practices of the Board in dealing with such requests, and attacked the continued suitability of the R-1706 determination, asking that the case be reopened, and that the group be divided into three separate crafts or classes. On January 17, the Board denied this request. It pointed out that United, on September 7, 1962, had objected to the craft proposed in the Brotherhood's original application on the sole ground that it did not conform to R-1706; that the Brotherhood had then amended its request to conform with R-1706; that United had been notified of this change on October 8, 1962; that, on October 24, the Board had requested United to furnish the number of employees in the craft or class as amended, and that it had furnished this information on November 2, stating that there were 12,451 as of a given date; and that it had failed to furnish the names of the employees. The Board then commented that "the carrier is not a party to this representation dispute"; that "no request for a review of . . . Case No. R-1706, et al. has been received from either organization party to NMB Case No. 3590" (the pending application of the Brotherhood); and that United's request was "not timely made, since the Board, on December 19, 1962, found that a representation dispute existed among the employees in this craft or class, and has authorized an election." United requested reconsideration of this decision, but without success.Meanwhile, on January 18, 1963, when United advised the Board that it was "willing to allow a ballot box election on Company property provided the ballot follows the form used by the National Labor Relations Board," i.e., the ballot "would have a space for the employee to vote against representation, as well as space for the employee to vote for representation" by the Brotherhood or the Machinists. (Emphasis in the original.) The Board replied that its form of ballot had been used since 1934, Page 380 U. S. 657 and that it saw no reason to depart from it. Thereafter, United advised that it would furnish the list of employees by February 11, but, on that date, the list was refused, and action was begun the next day against the Board in the District Court for the District of Columbia. This case was later dismissed, as we have noted.It appears that, while the election was being delayed, the Association was being organized among United's employees. By March, 1963, it claimed 6,400 members, about 50% of the total number of United's employees. It sought, like United, to be heard in a craft or class proceeding and to have the ballot amended. It stated, however, that it did not seek recognition as a bargaining representative, and it did not want its name on the ballot. It intended to dissolve after the election. The Board denied the applications.After United's case was dismissed, the Association filed a similar suit in the same court seeking substantially the same relief. The Brotherhood was permitted to intervene, and it filed a separate appeal from that of the Board after the court had disposed of the case as we have already stated.After we granted certiorari, the Board adopted an amended form of ballot, on which there appears the following directly above the names of the unions seeking election as representative:INSTRUCTIONS FOR VOTING"No employee is required to vote. If less than a majority of the employees cast valid ballots, no representative will be certified."In effect, this amended ballot stated on its face what has been the practice of the Board in these elections since its inception. The Board has announced its intention to use this form of ballot in future representation elections, including any that may be held in this particular matter. Page 380 U. S. 6582. THE PURPOSES OF THE ACT AND THE BOARD'S FUNCTIONThe major objective of the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. §§ 151-188 (1958 ed.), was "the avoidance of industrial strife, by conference between the authorized representatives of employer and employee." Virginian R. Co. v. System Federation No. 40, 300 U. S. 515, 300 U. S. 547 (1937). Section 2, Ninth set up the machinery for the selection of the representatives of employees. It authorized the National Mediation Board, upon request, to investigate disputes over representation; to "designate" those who were affected; to use a secret ballot or any other appropriate means of ascertaining the choice of employees; to establish rules governing elections, and to certify the representatives so chosen to represent the employees in negotiations. Upon the issuance of this certificate, the employer, under the Act, is required to "treat" with the representative certified to it by the Board. As we said in Virginian R. Co.:"The statute does not undertake to compel agreement between the employer and employees, but it does command those preliminary steps without which no agreement can be reached. It at least requires the employer to meet and confer with the authorized representative of its employees, to listen to their complaints, to make reasonable effort to compose differences -- in short, to enter into a negotiation for the settlement of labor disputes such as is contemplated by section 2, First."Id. at 300 U. S. 548.In Switchmen's Union v. National Mediation Board, 320 U. S. 297 (1943), the petitioner sued for the cancellation of a Board representation certificate. The Court held that the Act precluded review of the Board's certification of a collective bargaining representative under § 2, Ninth. The case involved a question of statutory construction, Page 380 U. S. 659 i.e., whether the Act permitted the division of crafts or classes of a single carrier into smaller units for collective bargaining purposes. The Court refused to consider the merits of the claim, holding that it was for the Board, not the courts, finally to resolve such questions. "The Act in § 2, Fourth," the Court said,"writes into law the 'right' of the 'majority of any craft or class of employees' to 'determine who shall be the representative of the craft or class for the purposes of this Act.' That 'right' is protected by § 2, Ninth, which gives the Mediation Board the power to resolve controversies concerning it, and, as an incident thereto, to determine what is the appropriate craft or class in which the election should be held."Id. at 320 U. S. 300-301. The Court goes on to note that Congress decided on the method which might be employed to protect this "right"; and that, where Congress "has not expressly authorized judicial review," id. at 320 U. S. 301, "this Court has often refused to furnish one even where questions of law might be involved," id. at 320 U. S. 303. The Court's conclusion was that"the intent seems plain -- the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law."Id. at 320 U. S. 305. Thus, the Court held there could be no judicial review.It is sometimes said that, in Leedom v. Kyne, 358 U. S. 184 (1958), the Court created an "exception" to the doctrine of Switchmen's Union. In Kyne, it was held that the law afforded a remedy in the courts when unlawful action by the National Labor Relations Board inflicted injury on one of the parties to a bargaining dispute. But this was no exception to Switchmen's Union. Rather, the Court was careful to note that"[t]his suit is not one to 'review,' in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather, it is one to strike down an order of the Board Page 380 U. S. 660 made in excess of its delegated powers and contrary to a specific prohibition in the Act."Leedom v. Kyne, 358 U. S. 184, 358 U. S. 188. (Emphasis supplied.) The limited nature of this holding was reemphasized only last Term where we referred to the "narrow limits" and "painstakingly delineated procedural boundaries of Kyne." Boire v. Greyhound Corp., 376 U. S. 473, 376 U. S. 481 (1964). It is with these principles in mind that we turn to the questions in the instant cases.3. THE CRAFT OR CLASS DETERMINATIONThe order of the District Court in Nos. 138 and 369 enjoins the Board from conducting an election "in which the form of the ballot does not permit a voting employee to cast a vote against collective bargaining representation. . . ." The Association concedes that the order does not enjoin the holding of the election until the Board reconsiders its craft or class determination; nor has it petitioned here for a review of that portion of the decision. Thus, we need not reach the question of the Association's right to demand or participate in proceedings leading to such a determination.The same is not true of United, however, for it specifically sought and was denied such relief, and it comes here contending that this denial constituted error. United argues that, since the Act compels it to treat with the representative chosen by the majority of its employees in the craft or class in which the election is held, it has a direct and substantial interest in the scope of that unit, and that, since the Act provides for no administrative or judicial review, due process requires that it be accorded an opportunity to participate in the proceedings by which the Board determines which employees may participate.It also contends that the Board, in designating the employees who could participate in the election, did not do so as a result of the statutorily required investigation -- Page 380 U. S. 661 which, United contends, requires that the Board take evidence and make findings-but made an arbitrary determination, relying solely on the agreement of the unions.United's position is that Switchmen's Union does not control a claim that the Board has ignored an express command of the Act. This particular question was reserved in the 1943 cases. In General Committee v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 (1943), a companion case to Switchmen's Union, the Court stated:"Whether judicial power may ever be exerted to require the Mediation Board to exercise the 'duty' imposed upon it under § 2, Ninth, and, if so, the type or types of situations in which it may be invoked, present questions not involved here."Id. at 320 U. S. 336, n. 12. We think that the Board's action here is reviewable only to the extent that it bears on the question of whether it performed its statutory duty to "investigate" the dispute. [Footnote 2] Reviewing that action, however, we conclude that the contention is completely devoid of merit.Section 2, Ninth makes it the duty of the Board to "investigate" a representation dispute and"to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names Page 380 U. S. 662 of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier."This command is broad and sweeping. We should note at the outset that the Board's duty to investigate is a duty to make such investigation as the nature of the case requires. [Footnote 3] An investigation is "essentially informal, not adversary"; it is "not required to take any particular form." Inland Empire District Council v. Millis, 325 U. S. 697, 325 U. S. 706 (1945). These principles are particularly apt here, where Congress has simply told the Board to investigate and has left to it the task of selecting the methods and procedures which it should employ in each case.In dealing with the sufficiency of the investigation, it is necessary to examine the experience of the Board through the years in resolving questions of craft or class appropriateness. That experience, insofar as it concerns the unit involved here, dates back to 1946 in Case No. R-1706, supra, when it was called upon for the first time to apply the craft or class principle of representation to the airline industry. At that time, it had before it a fledgling industry, a relatively new statutory command, and a huge group of employees for whom there were no recognized crafts or classes within the recognized crafts or classes within the meaning of the Act. At least five unions groupings, and all of the major airlines were invited to participate in an extended public hearing. United was among those participating, and, in fact, supported the very craft or class unit which the Board eventually decided upon, and to which it has adhered here. Because it was the first time the Board had recognized such a craft or class, it cautiously provided, in denying reconsideration of its determination, that it was subject Page 380 U. S. 663 to future reexamination where to do so would further the purposes of the Act.Thereafter began a period in which the workability of the R-1706 determination was tested in practice, and it did not go completely unchallenged. In 1948, United voluntarily recognized the Machinists as the collective bargaining representative for its ramp and stores employees. It supplied the Board with evidence upon which this recognition was based and its reasons for departing from its usual policy. It is noteworthy that the Board replied that voluntary recognition would not preclude future determination by the Board of the proper craft or class to which those employees would belong. In 1951, the determination of R-1706 withstood challenge in Matter of Representation of Employees of Northwest Airlines, Inc., Case No. R-2357, 2 N.M.B. Determinations of Craft or Class 60 (1955). United submitted a statement in this proceeding, emphasizing its disagreement with the R-1706 decision and requesting that it be disregarded. The Board refused to do so, but it did reiterate what it had implied in 1947 -- that it was"of the opinion that, upon proper application . . . , it will be advisable to reexamine the determination in case R-1706 et al., with the view of making such modifications as may be found to be justified at that time."Id. at 67. We note that, in both cases, R-1706 and R-2357, the unions competing for representative status were in disagreement as to the appropriate unit in which elections should be held. Again in 1952, in Case No. R-2482, 2 N.M.B. Determinations of Craft or Class 72 (1955), United participated when the Air Line Dispatch Clerks Association sought to represent its general dispatch clerks, dispatch clerks A, B, and C and crew schedulers; the Brotherhood there disputed the grouping, contending that R-1706 established the scope of the election. The Board sustained this position, which was also that of Page 380 U. S. 664 United, and held that R-1706 should be adhered to. United had argued that the dispatch clerks and schedulers were not a separate craft or class, but merely components of the R-1706 unit, and that representation could be had only through investigation and election in that group. The Board ultimately discussed the application in these terms:"The precedents heretofore established by the Board, however, cannot be disregarded. Moreover, the record of stable industrial relations which has followed in the years since the Determination in R-1706 must be given due and careful consideration."". . . In an industry which is still expanding, the agency charged with the duty of certifying designated representatives for collective bargaining must, of necessity, hesitate before acquiescing in the desires of certain employees to establish small segregated groups, because, by that very course, it may retard, or even destroy, job opportunities. Flexibility in the use of employee talent carries just as many advantages for the employees as it does for the carrier. The Board is fully aware that the action taken herein will have, as an end result, the withholding of an immediate opportunity to select a collective bargaining agent by this group of employees, but nevertheless it is convinced that the basic purposes of the Railway Labor Act will be better served by adherence to the policy of preserving established crafts or classes."Id. at 76.Nor do the subsequent cases brought to our attention strip the R-1706 decision of its continuing validity. In both these matters -- Cases No. C-2252 and C-2389, 3 N.M.B. Determinations of Craft or Class 16 (1961) -- the Board determined that stock and storeroom employees were separate crafts or classes of employees at North Central and Trans-Texas Air Lines. Neither of these airlines Page 380 U. S. 665 had participated in the 1946 proceedings. Both were feeder lines, and, in both cases, the contending unions disagreed as to the appropriate unit in which the election should be held. In any event, the Board was simply pursuing the policy it had announced when it decided R-1706 -- that it would reexamine craft or class determinations when it thought the purpose of the Act would be furthered thereby. This, in itself, belies the notion that the Board has blindly followed the R-1706 ruling. [Footnote 4]It is in light of this background that we must decide whether the Board's reaffirmation of the R-1706 determination in these cases was made after a sufficient investigation, within the meaning of the Act. We reject the contention that it adhered solely to the craft or class chosen by the unions. Time and again, it has acknowledged that it has the task of determining the appropriateness of a craft or class, and nothing in this case suggests that it abdicated that responsibility here. Where units untested by actual collective bargaining have been proposed by the unions involved, the Board has consistently held hearings to determine the propriety of holding elections in those crafts of classes. But where the unions have agreed and the unit they have agreed upon has been one well established in industry bargaining circles, it has usually held elections without full scale hearings, not simply because the unions agree, but because the unit upon which they agree is one that is well recognized under prior determinations of the Board, and has proven satisfactory in actual experience. This is what it did here. Page 380 U. S. 666The Board received the Brotherhood's application; it requested, received, and considered statements from the carrier and the Machinists. On the basis of these preliminary actions, it scheduled an election. But it continued to correspond with United, accepting and studying its detailed application for reconsideration of the Board's decision to proceed to election in the R-1706 craft or class. Viewed alongside prior experience with the R-1706 grouping in the air transport industry, this procedure clearly complied with the statutory command that the Board "investigate" the dispute. The only missing element of the required investigation is the election, and that can now be held promptly.United sought to have the District Court require the Board to hold a hearing on the craft or class issue in which it would participate as a "party in interest." But the Act does not require a hearing when the Board itself designates those who may participate in the election. It provides that"the Board shall designate who may participate in the election . . . , or may appoint a committee of three neutral persons who, after hearing, shall, within ten days, designate the employees who may participate in the election."(Emphasis supplied.) Indeed, United seems aware of this, for it stated in its brief that, if "the Railway Labor Act does not specifically require a hearing, it does require an investigation,'" and that United must be heard in the course of that proceeding. Clearly, then, the Board cannot be required to hold a hearing.Nor does the Act require that United be made a party to whatever procedure the Board uses to define the scope of the electorate. This status is accorded only to those organizations and individuals who seek to represent the employees, for it is the employees' representative that is to be chosen, not the carriers'. Whether and to what extent carriers will be permitted to present their views on Page 380 U. S. 667 craft or class questions is a matter that the Act leaves solely in the discretion of the Board.The gist of United's claim, therefore, is that it should be accorded a greater role in the Board's investigation. This argument must be rejected. Here, United participated in the proceeding establishing the craft or class in question as a cognizable grouping of employees, and it has had opportunities since that time to present further evidence. It must be remembered that United is under no compulsion to reach an agreement with the certified representative. As Chief Justice Stone said in Virginian R. Co. v. System Federation No. 40, supra,"The quality of the action compelled, its reasonableness, and therefore the lawfulness of the compulsion, must be judged in the light of the conditions which have occasioned the exercise of governmental power."Id. at 300 U. S. 558-559. Likewise, as the Court observed in Hannah v. Larche, 363 U. S. 420, 363 U. S. 442 (1960), the procedural requirements in a articular proceeding depend on "[t]he nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding. . . ." The Board, as we noted in Switchmen's Union, performs the "function of a referee." It does not select one organization or another; it simply investigates, defines the scope of the electorate, holds the election, and certifies the winner. Thus, while the Board's investigation and resolution of a dispute in one craft or class rather than another might impose some additional burden upon the carrier, we cannot say that the latter's interest rises to a status which requires the full panoply of procedural protections. We find support for this conclusion when we consider the burden that acceptance of United's contentions would visit upon the administration of the Act. To require full-dress hearings on craft or class in each representation dispute would fly in the face of Congress' instruction that Page 380 U. S. 668 representatives should be certified within 30 days of invocation of the Board's services. It places beyond reach the speed which the Act's framers thought an objective of the first order.In view of these considerations, we hold that the Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held, and that it did so in a manner satisfying any possible constitutional requirements that might exist. Its determination, therefore, is not subject to judicial review. Switchmen's Union v. National Mediation Board, supra. As was pointed out there, the"highly selective manner in which Congress has provided for judicial review of administrative orders or determinations under the Act,"id. at 320 U. S. 305, indicates the confidence that it reposed in the Board. In turn, the fair and equitable manner in which the Board has discharged its difficult function is attested by the admirable results it has attained.4. THE FORM OF THE BALLOTAs we have noted, the District Court enjoined the Board from conducting an election with a ballot that did not permit an employee to cast a vote against collective representation. We believe this was error. Section 2, Ninth empowers the Board to establish the rules governing elections. Moreover, it provides that, in resolving representation disputes, the Board is authorized"to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier."Thus, not only does the statute fail to spell out the form of any ballot that might be used, but it does not even require selection by ballot. It leaves the details to the broad discretion Page 380 U. S. 669 of the Board with only the caveat that it "insure" freedom from carrier interference. That the details of selecting representatives were to be left for the final determination of the Board is buttressed by legislative history clearly indicating as much. [Footnote 5] See Hearings on H.R.7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess., 34-35.In summary, then, the selection of a ballot is a necessary incident of the Board's duty to resolve disputes. The Act expressly says as much, instructing the Board alone to establish the rules governing elections. Thus, it is clear that its decision on the matter is not subject to judicial review where there is no showing that it has acted in excess of its statutory authority.United and the Association, however, apparently relying on Leedom v. Kyne, supra, contend that the Board has exceeded its statutory authority in selecting the proposed ballot. The argument is that § 2, Fourth, which provides that "[t]he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class," requires a ballot with Page 380 U. S. 670 a "no union" box. They urge that, in Virginian R. Co. v. System Federation No. 40, supra, at 300 U. S. 560, certification on the basis of a majority of the votes cast, rather than a majority of the eligible voters, was upheld on the ground that nonvoters "are presumed to assent to the expressed will of the majority of those voting." And they say that the Board's ballot is inconsistent with this rationale. But the Board has not followed the presumption of Virginian R. Co. Indeed, the caveat on the face of the proposed ballot expressly refutes such an assumption. The Board's rule of election procedure is that no vote is a vote for no representation, and this is now made plain to the voting employees. It is, as we have said, an assumption more favorable to the employees that the Association represents. Thus, under the Board's practice, a majority of the craft or class, as required by § 2, Fourth, does have the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all.It is also claimed that, since § 9(a) of the National Labor Relations Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. § 159(a) (1958 ed.) and § 2, Ninth of the Railway Labor Act are both designed to encourage collective bargaining and the National Labor Relations Board uses a ballot with a "no union" box, the Mediation Board must use one also. Even assuming that the "no union" ballot would implement the purpose of the Act, this is a far cry from saying that it is the only form of ballot that would do so. Given broad discretion as it ism the Mediation Board has followed a presumption contrary to that adhered to by the Labor Relations Board. The latter has tailored its ballot to conform to the presumption of Virginian R. Co. If, in a Labor Board election, an employee does not vote, he can safely be presumed to have acquiesced in the will of the majority of the voters. In a Mediation Board election, if the employee Page 380 U. S. 671 refuses to vote, he is treated as having voted for no representation.We venture no opinion as to whether the Board's proposed ballot will best effectuate the purposes of the Act. We do say that there is nothing to suggest that, in framing it, the Board has exceeded its statutory authority.Unable to point to any specific requirement of a "no union" ballot in the Act, United and the Association are left to arguing in terms of policy and broad generalities as to what the Railway Labor Act should provide. The very nature of the arguments indicates that the Board's choice of its proposed ballot is not subject to judicial review, for it was to avoid the haggling and delays of litigation that such questions were left to the Board. These are matters for Congress and the Board, rather than the courts. Here, the Board -- a creature of Congress -- has been, as we have said, careful to provide fair, yet effective, procedures, and we feel certain that it will continue to do so. If its decision on the ballot is not acceptable, the place to go is to Congress, not to us.Accordingly, we reverse the judgments in Nos. 138 and 369 and affirm the judgment in No. 139.It is so ordered

U.S. Supreme CourtRailway Clerks v. Employees Ass'n, 380 U.S. 650 (1965)Brotherhood of Railway & Steamship Clerks, FreightHandlers, Express & Station Employees v. Associationfor the Benefit of Noncontract EmployeesNo. 138Argued March 4, 1965Decided April 28, 1965*380 U.S. 650SyllabusThe Brotherhood of Railway and Steamship Clerks (Brotherhood) filed with the National Mediation Board (Board) an application under § 2, Ninth of the Railway Labor Act, which, as later amended, requested investigation of a representation dispute among the "clerical, office, stores, fleet and passenger service" employees of United Air Lines (United). The Board had determined that grouping to be appropriate for collective bargaining in a case (R-1706) decided in 1947 after an extensive hearing in which United and other airlines, by invitation, gave their views. The Board found that a representation dispute existed, and scheduled a secret election, proposing to use its standard ballot providing for the printing of the names of the two labor organizations in the dispute, with a third space for a "write in" designation, but no space for a specific "no union" vote. Seeking to enjoin the Board from conducting an election unless it held a hearing on the craft or class issue and unless the ballot allowed an employee to vote against representation, United, after extensive correspondence with the Board, filed suit. The District Court dismissed the case, the Court of Appeals affirmed, and the case is here on certiorari as No. 139. The Association for the Benefit of Non-Contract Employees of United (the Association), which had been formed only to be heard by the Board in a craft or class proceeding and to have the ballot amended, brought a similar suit after United's case was dismissed, and the Brotherhood intervened. The District Court enjoined the Board from conducting an election which did not permit an employee to Page 380 U. S. 651 vote against collective bargaining representation. The Board and the Brotherhood filed separate appeals. The Court of Appeals affirmed both cases, which are here on certiorari as Nos. 138 and 369. The Board later amended the ballot form to state that no employee is required to vote, and that, if less than a majority of employees casts valid ballots, no representative will be certified.Held:1. The Railway Labor Act precludes judicial review of the Board's certification of a collective bargaining representative. Switchmen' Union v. National Mediation Board, 320 U. S. 297, followed. Pp. 380 U. S. 658-660.2. The Board's action here is reviewable only to the extent of the question of the Board's performance of its statutory duty to "investigate" the representation dispute. P. 380 U. S. 661.3. The Board performed its statutory duty to conduct an investigation and designate the craft or class in which the election should be held. P. 380 U. S. 661.(a) The Board's duty to investigate is to make such informal, non-adversary investigation as the nature of the case may require. P. 380 U. S. 662.(b) The Board has not failed to make sufficient investigation, and has not blindly followed its R-1706 ruling. Pp. 380 U. S. 662-665.(c) The Board did not adhere solely to the craft or class chosen by the unions, having consistently held hearings (though not required to do so) to determine the propriety of units requested by unions which were untested by actual collective bargaining, but dispensing with such hearings where, as here, experience has shown the grouping to be satisfactory. P. 380 U. S. 665.(d) The Act does not require that a carrier be made a party to whatever procedure the Board uses to determine the propriety of a craft or class, that status being given only to those who seek to represent employees; and whether and to what extent the carrier's views may be presented is solely within the Board's discretion. Pp. 380 U. S. 666-667.(e) The Board does not select the bargaining representative; it only investigates, defines the scope of the electorate, holds the election, and certifies the winner. P. 380 U. S. 667.4. The Board's decision as to the form of ballot or whether selection shall be by ballot is not subject to judicial review, and, in view of the Board's long established election procedures, the District Page 380 U. S. 652 Court erred in enjoining the Board from holding an election with a ballot not providing opportunity, on it face, for an employee to vote against collective representation. Pp. 380 U. S. 668-669.5. The Board's rule of election procedure that "no vote" is a vote for no representation is within the Board's statutory authority under § 2, Fourth, and was favorable to the Association's employees. Pp. 380 U. S. 670-671.117 U.S.App.D.C. 387, 330 F.2d 853, judgments in Nos. 138 and 369 revered, judgment in No. 139 affirmed.

1977_76-1310

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST joined.The question presented is whether the news media have a constitutional right of access to a county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television.IPetitioner Houchins, as Sheriff of Alameda County, Cal., controls all access to the Alameda County Jail at Santa Rita. Respondent KQED operates licensed television and radio broadcasting stations which have frequently reported newsworthy events relating to penal institutions in the San Francisco Bay Area. On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the Santa Rita jail. The report included a statement by a psychiatrist that the conditions at the Greystone facility were responsible for the illnesses of his patient-prisoners there, and a statement from petitioner denying that prison conditions were responsible for the prisoners' illnesses.KQED requested permission to inspect and take pictures within the Greystone facility. After permission was refused, KQED and the Alameda and Oakland branches of the National Association for the Advancement of Colored People Page 438 U. S. 4 (NAACP) filed suit under 42 U.S.C. § 1983. They alleged that petitioner had violated the First Amendment by refusing to permit media access and failing to provide any effective means by which the public could be informed of conditions prevailing in the Greystone facility or learn of the prisoners' grievances. Public access to such information was essential, they asserted, in order for NAACP members to participate in the public debate on jail conditions in Alameda County. They further asserted that television coverage of the conditions in the cells and facilities was the most effective way of informing the public of prison conditions.The complaint requested a preliminary and permanent injunction to prevent petitioner from"excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally preventing full and accurate news coverage of the conditions prevailing therein."On June 17, 1975, when the complaint was filed, there appears to have been no formal policy regarding public access to the Santa Rita jail. However, according to petitioner, he had been in the process of planning a program of regular monthly tours since he took office six months earlier. On July 8, 1975, he announced the program and invited all interested persons to make arrangements for the regular public tours. News media were given notice in advance of the public, and presumably could have made early reservations.Six monthly tours were planned and funded by the county, at an estimated cost of $1,800. The first six scheduled tours were filled within a week after the July 8 announcement. [Footnote 1] A KQED reporter and several other reporters were on the first tour on July 14, 1975.Each tour was limited to 25 persons, and permitted only limited access to the jail. The tours did not include the disciplinary cells or the portions of the jail known as "Little Page 438 U. S. 5 Greystone," the scene of alleged rapes, beatings, and adverse physical conditions. Photographs of some parts of the jail were made available, but no cameras or tape recorders were allowed on the tours. Those on the tours were not permitted to interview inmates, and inmates were generally removed from view.In support of the request for a preliminary injunction, respondents presented testimony and affidavits stating that other penal complexes had permitted media interviews of inmates and substantial media access without experiencing significant security or administrative problems. They contended that the monthly public tours at Santa Rita failed to provide adequate access to the jail for two reasons: (a) once the scheduled tours had been filled, media representatives who had not signed up for them had no access, and were unable to cover newsworthy events at the jail; (b) the prohibition on photography and tape recordings, the exclusion of portions of the jail from the tours, and the practice of keeping inmates generally removed from view substantially reduced the usefulness of the tours to the media.In response, petitioner admitted that Santa Rita had never experimented with permitting media access beyond that already allowed; he did not claim that disruption had been caused by media access to other institutions. He asserted, however, that unregulated access by the media would infringe inmate privacy, [Footnote 2] and tend to create "jail celebrities," who, in turn, tend to generate internal problems and undermine jail security. He also contended that unscheduled media tours would disrupt jail operations. Page 438 U. S. 6Petitioner filed an affidavit noting the various means by which information concerning the jail could reach the public. Attached to the affidavit were the current prison mail, visitation, and phone call regulations. The regulations allowed inmates to send an unlimited number of letters to judges, attorneys, elected officials, the Attorney General, petitioner, jail officials, or probation officers, all of which could be sealed prior to mailing. Other letters were subject to inspection for contraband, but the regulations provided that no inmate mail would be read.With few exceptions, [Footnote 3] all persons, including representatives of the media, who knew a prisoner could visit him. Media reporters could interview inmates awaiting trial with the consent of the inmate, his attorney, the district attorney, and the court. Social services officers were permitted to contact "relatives, community agencies, employers, etc.," by phone to assist in counseling inmates with vocational, educational, or personal problems. Maximum security inmates were free to make unmonitored collect telephone calls from designated areas of the jail without limit.After considering the testimony, affidavits, and documentary evidence presented by the parties, the District Court preliminarily enjoined petitioner from denying KQED news personnel and "responsible representatives" of the news media access to the Santa Rita facilities, including Greystone, "at reasonable times and hours" and"from preventing KQED news personnel and responsible representatives of the news media from utilizing photographic and sound equipment or from utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities. "Page 438 U. S. 7The District Court rejected petitioner's contention that the media policy then in effect was necessary to protect inmate privacy or minimize security and administrative problems. It found that the testimony of officials involved with other jails indicated that a "more flexible press policy at Santa Rita [was] both desirable and attainable." The District Court concluded that the respondents had"demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on the merits, a favorable public interest, and a balance of hardships"in their favor.On interlocutory appeal from the District Court's order, petitioner invoked Pell v. Procunier, 417 U. S. 817, 417 U. S. 834 (1974), where this Court held that "newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public." He contended that the District Court had departed from Pell and abused its discretion because it had ordered that he give the media greater access to the jail than he gave to the general public. The Court of Appeals rejected petitioner's argument that Pell and Saxbe v. Washington Post Co., 417 U. S. 843 (1974), were controlling. It concluded, albeit in three separate opinions, [Footnote 4] that the public and the media had a First and Fourteenth Amendment right of access to prisons and jails, and sustained the District Court's order.IINotwithstanding our holding in Pell v. Procunier, supra, respondents assert that the right recognized by the Court of Appeals flows logically from our decisions construing the First Amendment. They argue that there is a constitutionally guaranteed right to gather news under Pell v. Procunier, supra at 417 U. S. 835, and Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 681, 408 U. S. 707 (1972). From the right to gather news and the right to receive information, they argue for an implied special right of access to Page 438 U. S. 8 government-controlled sources of information. This right, they contend, compels access as a constitutional matter. Respondents suggest further support for this implicit First Amendment right in the language of Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 250 (1936), and Mills v. Alabama, 384 U. S. 214, 384 U. S. 219 (1966), which notes the importance of an informed public as a safeguard against "misgovernment" and the crucial role of the media in providing information. Respondents contend that public access to penal institutions is necessary to prevent officials from concealing prison conditions from the voters and impairing the public's right to discuss and criticize the prison system and its administration.IIIWe can agree with many of the respondents' generalized assertions; conditions in jails and prisons are clearly matters "of great public importance." Pell v. Procunier, supra at 417 U. S. 830 n. 7. Penal facilities are public institutions which require large amounts of public funds, and their mission is crucial in our criminal justice system. Each person placed in prison becomes, in effect, a ward of the state for whom society assumes broad responsibility. It is equally true that, with greater information, the public can more intelligently form opinions about prison conditions. Beyond question, the role of the media is important; acting as the "eyes and ears" of the public, they can be a powerful and constructive force, contributing to remedial action in the conduct of public business. They have served that function since the beginning of the Republic, but, like all other components of our society, media representatives are subject to limits.The media are not a substitute for or an adjunct of government and, like the courts, they are "ill-equipped" to deal with problems of prison administration. Cf. Procunier v. Martinez, 416 U. S. 396, 416 U. S. 405 (1974). We must not confuse the role of the media with that of government; each has special, crucial Page 438 U. S. 9 functions, each complementing -- and sometimes conflicting with -- the other.The public importance of conditions in penal facilities and the media's role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter these institutions, with camera equipment, and take moving and still pictures of inmates for broadcast purposes. This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control. Nor does the rationale of the decisions upon which respondents rely lead to the implication of such a right.Grosjean v. American Press Co., supra, and Mills v. Alabama, supra, emphasized the importance of informed public opinion and the traditional role of a free press as a source of public information. But an analysis of those cases reveals that the Court was concerned with the freedom of the media to communicate information once it is obtained; neither case intimated that the Constitution compels the government to provide the media with information or access to it on demand. Grosjean involved a challenge to a state tax on advertising revenues of newspapers, the "plain purpose" of which was to penalize the publishers and curtail the publication of a selected group of newspapers. 297 U.S. at 297 U. S. 251. The Court summarized the familiar but important history of the attempts to prevent criticism of the Crown in England by the infamous licensing requirements and special taxes on the press, id. at 297 U. S. 245-247, and concluded that the First Amendment had been designed to prevent similar restrictions or any other "form of previous restraint upon printed publications, or their circulation." Id. at 297 U. S. 249. [Footnote 5] Page 438 U. S. 10In discussing the importance of an "untrammeled press," the Court in Grosjean readily acknowledged the need for "informed public opinion" as a restraint upon misgovernment. 297 U.S. at 297 U. S. 250. It also criticized the tax at issue because it limited "the circulation of information to which the public [was] entitled." Ibid. But nothing in the Court's holding implied a special privilege of access to information as distinguished from a right to publish information which has been obtained; Grosjean dealt only with government attempts to burden and restrain a newspaper's communication with the public. The reference to a public entitlement to information meant no more than that the government cannot restrain communication of whatever information the media acquire -- and which they elect to reveal. Cf. Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 838 (1978).Mills involved a statute making it a crime to publish an editorial about election issues on election day. In striking down the statute, the Court noted that "a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs," 384 U.S. at 384 U. S. 218. The Court also discussed the role of the media"as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve."Id. at 384 U. S. 219. As in Grosjean, however, the Court did not remotely imply a constitutional right guaranteeing anyone access to government information beyond that open to the public generally.Branzburg v. Hayes, supra, offers even less support for the respondents' position. Its observation, in dictum, that "news gathering is not without its First Amendment protections," 408 U.S. at 408 U. S. 707, in no sense implied a constitutional right of access to news sources. That observation must be read in context; it was in response to the contention that forcing a reporter to disclose to a grand jury information received in Page 438 U. S. 11 confidence would violate the First Amendment by deterring news sources from communicating information. Id. at 408 U. S. 680. There is an undoubted right to gather news "from any source by means within the law," id. at 408 U. S. 681-682, but that affords no basis for the claim that the First Amendment compels others -- private persons or government to supply information.That the Court assumed in Branzburg that there is no First Amendment right of access to information is manifest from its statements that"the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally,"id. at 408 U. S. 684, and that"[n]ewsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded,"id. at 408 U. S. 684-685.Pell v. Procunier and Saxbe v. Washington Post Co. also assumed that there is no constitutional right of access such as the Court of Appeals conceived. In those cases, the Court declared, explicitly and without reservation, that the media have "no constitutional right of access to prisons or their inmates beyond that afforded the general public," Pell, 417 U.S. at 417 U. S. 834; Saxbe, 417 U.S. at 417 U. S. 850, and, on that premise, the Court sustained prison regulations that prevented media interviews with inmates.The fact that the Court relied upon Zemel v. Rusk, 381 U. S. 1 (1965), in both Branzburg, 408 U.S. at 408 U. S. 684 n. 22, and Pell, supra at 417 U. S. 834 n. 9, further negates any notion that the First Amendment confers a right of access to news sources. The appellant in Zemel made essentially the same argument that respondents advance here. He contended that the ban on travel to Cuba, then in effect, interfered with his First Amendment right to acquaint himself with the effects of our Page 438 U. S. 12 Government's foreign and domestic policies and the conditions in Cuba that might affect those policies. Mr. Chief Justice Warren, writing for the Court, flatly rejected the contention that there was a First Amendment right at stake, stating:"[T]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information."381 U.S. at 381 U. S. 16-17. (Emphasis added.)The right to receive ideas and information is not the issue in this case. See, e.g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976); Procunier v. Martinez, 416 U.S. at 416 U. S. 408-409; Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762-763 (1972). The issue is a claimed special privilege of access which the Court rejected in Pell and Saxbe, a right which is not essential to guarantee the freedom to communicate or publish.IVThe respondents' argument is flawed not only because it lacks precedential support and is contrary to statements in this Court's opinions, but also because it invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes. Whether the government should open penal institutions in the manner sought by respondents is a question of policy which a legislative body might appropriately resolve one way or the other.A number of alternatives are available to prevent problems in penal facilities from escaping public attention. The early penal reform movements in this country and England gained impetus as a result of reports from citizens and visiting committees Page 438 U. S. 13 who volunteered or received commissions to visit penal institutions and make reports. See T. Eriksson, The Reformers 32-42, 69 (Djurklou translation 1976); W. Crawford, Report on the Penitentiaries of the United States vii-viii, xiii-xv, 111, App. 9 (1969 ed.); B. McKelvey, American Prisons 52-56, 193 (1936). Citizen task forces and prison visitation committees continue to play an important role in keeping the public informed on deficiencies of prison systems and need for reforms. [Footnote 6] Grand juries, with the potent subpoena power -- not available to the media -- traditionally concern themselves with conditions in public institutions; a prosecutor or judge may initiate similar inquiries, and the legislative power embraces an arsenal of weapons for inquiry relating to tax-supported institutions. In each case, these public bodies are generally compelled to publish their findings and, if they default, the power of the media is always available to generate public pressure for disclosure. But the choice as to the most effective and appropriate method is a policy decision to be resolved by legislative decision. [Footnote 7] We must not confuse what is "good," "desirable," or "expedient" with what is constitutionally commanded by the First Amendment. To do so is to trivialize constitutional adjudication.Unarticulated but implicit in the assertion that media access to the jail is essential for informed public debate on jail conditions is the assumption that media personnel are the Page 438 U. S. 14 best qualified persons for the task of discovering malfeasance in public institutions. But that assumption finds no support in the decisions of this Court or the First Amendment. Editors and newsmen who inspect a jail may decide to publish or not to publish what information they acquire. Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 124 (1973); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Note, The Rights of the Public and the Press To Gather Information, 87 Harv.L.Rev. 1505, 1508, 1513 (1974). Public bodies and public officers, on the other hand, may be coerced by public opinion to disclose what they might prefer to conceal. No comparable pressures are available to anyone to compel publication by the media of what they might prefer not to make known.There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable" or "expedient." We, therefore, reject the Court of Appeals' conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions."There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. [Citing Pell v. Procunier, supra.] The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.""The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, Page 438 U. S. 15 at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society."Stewart, "Or of the Press," 26 Hastings L.J. 631, 636 (1975).Petitioner cannot prevent respondents from learning about jail conditions in a variety of ways, albeit not as conveniently as they might prefer. Respondents have a First Amendment right to receive letters from inmates criticizing jail officials and reporting on conditions. See Procunier v. Martinez, 416 U.S. at 416 U. S. 413-418. Respondents are free to interview those who render the legal assistance to which inmates are entitled. See id. at 416 U. S. 419. They are also free to seek out former inmates, visitors to the prison, public officials, and institutional personnel, as they sought out the complaining psychiatrist here.Moreover, California statutes currently provide for a prison Board of Corrections that has the authority to inspect jails and prisons and must provide a public report at regular intervals. Cal.Penal Code Ann. §§ 6031-6031.2 (West Supp. 1978). Health inspectors are required to inspect prisons and provide reports to a number of officials, including the State Attorney General and the Board of Corrections. Cal.Health & Safety Code Ann. § 459 (West 1970). Fire officials are also required to inspect prisons. 15 Cal.Admin. Code § 1025 (1976). Following the reports of the suicide at the jail involved here, the County Board of Supervisors called for a report from the County Administrator; held a public hearing on the report, which was open to the media; and called for further reports when the initial report failed to describe the conditions in the cells in the Greystone portion of the jail.Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. Under our holdings in Pell v. Procunier, supra, and Saxbe v. Washington Page 438 U. S. 16 Post Co., supra, until the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.Reversed

U.S. Supreme CourtHouchins v. KQED, Inc., 438 U.S. 1 (1978)Houchins v. KQED, Inc.No. 76-1310Argued November 29, 1977Decided June 26, 1978438 U.S. 1SyllabusAfter respondent broadcasting company, KQED, had been refused permission to inspect and take photographs at a portion (Little Greystone) of a county jail where a prisoner's suicide reportedly had occurred and where conditions were assertedly responsible for prisoners' problems, respondents brought this action under 42 U.S.C. § 1983 against petitioner, who supervised the jail, claiming deprivation of their First Amendment rights. Thereafter petitioner announced a program of regular monthly tours open to the public, including media reporters, of parts of the jail (but not including Little Greystone). Cameras or tape recorders were not allowed on the tours, nor were interviews with inmates. Persons, including members of the media, who knew a prisoner at the jail could visit him. The District Court preliminarily enjoined petitioner from denying KQED news personnel and responsible news media representatives reasonable access to the jail, including Little Greystone, and from preventing their using photographic or sound equipment or from conducting inmate interviews. The Court of Appeals affirmed.Held: The judgment is reversed and the case is remanded. Pp. 438 U. S. 8-16; 438 U. S. 16-19.546 F.2d 284, reversed and remanded.THE CHIEF JUSTICE, joined by MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST, concluded that neither the First Amendment nor the Fourteenth Amendment provides a right of access to government information Page 438 U. S. 2 or sources of information within the government's control. The news media have no constitutional right of access to the county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs for publication and broadcasting by newspapers, radio, and television. Pell v. Procunier, 417 U. S. 817; Saxbe v. Washington Post 417 U. S. 843. Pp. 438 U. S. 8-16.(a) The public importance of conditions in penal facilities and the media's role of providing information afford no basis for reading into the Constitution a right of the public or the media to enter those institutions, gather information, and take pictures for broadcast purposes. The First Amendment does not guarantee a right of access to sources of information within government control. Grosjean v. American Press, 297 U. S. 233, Mills v. Alabama, 384 U. S. 214, and other cases relied upon by respondents, concerned the freedom of the press to communicate information already obtained, but neither Grosjean nor Mills indicated that the Constitution compels the government to provide the press with information. Pp. 438 U. S. 8-12.(b) Whether the government should open penal institutions in the manner sought by respondents is a matter for legislative, not judicial, resolution. Pp. 438 U. S. 12-16.MR. JUSTICE STEWART, while agreeing that the Constitution does no more than assure the public and the press equal access to information generated or controlled by the government once the government has opened its doors, concluded that terms of access that are reasonably imposed on individual members of the public may -- if they impede effective reporting without sufficient justification -- be unreasonable as applied to journalists who are at a jail to convey to the general public what the visitors see. KQED was thus clearly entitled to some preliminary relief from the District Court, but not to an order requiring petitioner to permit reporters into the Little Greystone facility and requiring him to let them interview randomly encountered inmates. In those respects, the injunction gave the press access to areas and sources of information from which persons on the public tours had been excluded, thus enlarging the scope of what had been opened to public view. Pp. 438 U. S. 16-19.BURGER, C.J., announced the Court's judgment and delivered an opinion, in which WHITE and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 438 U. S. 16. STEVENS, J., filed a dissenting opinion, in which BRENNAN and POWELL, JJ., joined, post, p. 438 U. S. 19. MARSHALL, and BLACKMUN, JJ., took no part in the consideration or decision of the case. Page 438 U. S. 3

1981_80-848

JUSTICE MARSHALL delivered the opinion of the Court.These cases arise out of an air crash that took place in Scotland. Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful death actions against petitioners that were ultimately transferred to the United States District Court for the Middle District of Pennsylvania. Petitioners moved to dismiss on the ground of forum non conveniens. After noting that an alternative forum existed in Scotland, the District Court granted their motions. 479 F. Supp. 727 (1979). The United States Court of Appeals for the Third Circuit reversed. 630 F.2d 149 (1980). The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff. Because we conclude that the possibility of an unfavorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse.IAIn July, 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from Page 454 U. S. 239 Blackpool to Perth. The pilot and five passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eyewitnesses to the accident. At the time of the crash, the plane was subject to Scottish air traffic control.The aircraft, a twin-engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Co. (Piper). The propellers were manufactured in Ohio by petitioner Hartzell Propeller, Inc. (Hartzell). At the time of the crash, the aircraft was registered in Great Britain and was owned and maintained by Air Navigation and Trading Co., Ltd. (Air Navigation). It was operated by McDonald Aviation, Ltd. (McDonald), a Scottish air taxi service. Both Air Navigation and McDonald were organized in the United Kingdom. The wreckage of the plane is now in a hangar in Farnsborough, England.The British Department of Trade investigated the accident shortly after it occurred. A preliminary report found that the plane crashed after developing a spin, and suggested that mechanical failure in the plane or the propeller was responsible. At Hartzell's request, this report was reviewed by a three-member Review Board, which held a 9-day adversary hearing attended by all interested parties. The Review Board found no evidence of defective equipment and indicated that pilot error may have contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerably lower than the minimum height required by his company's operations manual.In July, 1977, a California probate court appointed respondent Gaynell Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their survivors; she was a legal secretary to the attorney who filed this lawsuit. Several days after her appointment, Reyno commenced separate wrongful Page 454 U. S. 240 death actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict liability. [Footnote 1] Air Navigation, McDonald, and the estate of the pilot are not parties to this litigation. The survivors of the five passengers whose estates are represented by Reyno filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate. [Footnote 2] Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society." [Footnote 3]On petitioners' motion, the suit was removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). [Footnote 4] Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer. [Footnote 5] In December, 1977, the District Court quashed service on Page 454 U. S. 241 Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly served process on Hartzell.BIn May, 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of forum non conveniens. The District Court granted these motions in October, 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), and its companion case, Koster v. Lumbermens Mut. Cas. Co., 330 U. S. 518 (1947). In those decisions, the Court stated that a plaintiff's choice of forum should rarely be disturbed. However, when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 330 U. S. 524. To guide trial court discretion, the Court provided a list of "private interest factors" affecting the convenience of the litigants, and a list of "public interest factors" affecting the convenience of the forum. Gilbert, supra, at 330 U. S. 508-509. [Footnote 6] Page 454 U. S. 242After describing our decisions in Gilbert. and Koster, the District Court analyzed the facts of these cases. It began by observing that an alternative forum existed in Scotland; Piper and Hartzell had agreed to submit to the jurisdiction of the Scottish courts and to waive any statute of limitations defense that might be available. It then stated that plaintiffs choice of forum was entitled to little weight. The court recognized that a plaintiff's choice ordinarily deserves substantial deference. It noted, however, that Reyno"is a representative of foreign citizens and residents seeking a forum in the United States because of the more liberal rules concerning products liability law,"and that"the courts have been less solicitous when the plaintiff is not an American citizen or resident, and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States."479 F. Supp. at 731.The District Court next examined several factors relating to the private interests of the litigants, and determined that these factors strongly pointed towards Scotland as the appropriate forum. Although evidence concerning the design, manufacture, and testing of the plane and propeller is located in the United States, the connections with Scotland are otherwise "overwhelming." Id. at 732. The real parties in interest are citizens of Scotland, as were all the decedents. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot, and the investigation of the accident -- all essential to the defense -- are in Great Britain. Moreover, all witnesses to damages are located in Scotland. Trial would be aided by familiarity with Scottish topography, and by easy access to the wreckage.The District Court reasoned that, because crucial witnesses and evidence were beyond the reach of compulsory process, and because the defendants would not be able to implead potential Scottish third-party defendants, it would be "unfair to make Piper and Hartzell proceed to trial in this forum." Id. Page 454 U. S. 243 at 733. The survivors had brought separate actions in Scotland against the pilot, McDonald, and Air Navigation. "[I]t would be fairer to all parties and less costly if the entire case was presented to one jury with available testimony from all relevant witnesses." Ibid. Although the court recognized that, if trial were held in the United States, Piper and Hartzell could file indemnity or contribution actions against the Scottish defendants, it believed that there was a significant risk of inconsistent verdicts. [Footnote 7]The District Court concluded that the relevant public interests also pointed strongly towards dismissal. The court determined that Pennsylvania law would apply to Piper and Scottish law to Hartzell if the case were tried in the Middle District of Pennsylvania. [Footnote 8] As a result, "trial in this forum would be hopelessly complex and confusing for a jury." Id. at 734. In addition, the court noted that it was unfamiliar with Scottish law and thus would have to rely upon experts from that country. The court also found that the trial would be enormously costly and time-consuming; that it would be unfair to burden citizens with jury duty when the Middle District Page 454 U. S. 244 of Pennsylvania has little connection with the controversy; and that Scotland has a substantial interest in the outcome of the litigation.In opposing the motions to dismiss, respondent contended that dismissal would be unfair because Scottish law was less favorable. The District Court explicitly rejected this claim. It reasoned that the possibility that dismissal might lead to an unfavorable change in the law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum." Id. at 738.COn appeal, the United States Court of Appeals for the Third Circuit reversed and remanded for trial. The decision to reverse appears to be based on two alternative grounds. First, the Court held that the District Court abused its discretion in conducting the Gilbert analysis. Second, the Court held that dismissal is never appropriate where the law of the alternative forum is less favorable to the plaintiff.The Court of Appeals began its review of the District Court's Gilbert analysis by noting that the plaintiff's choice of forum deserved substantial weight, even though the real parties in interest are nonresidents. It then rejected the District Court's balancing of the private interests. It found that Piper and Hartzell had failed adequately to support their claim that key witnesses would be unavailable if trial were held in the United States: they had never specified the witnesses they would call and the testimony these witnesses would provide. The Court of Appeals gave little weight to the fact that Piper and Hartzell would not be able to implead potential Scottish third-party defendants, reasoning that this difficulty would be "burdensome" but not "unfair," 630 F.2d at 162. [Footnote 9] Finally, the court stated that resolution of the suit Page 454 U. S. 245 would not be significantly aided by familiarity with Scottish topography, or by viewing the wreckage.The Court of Appeals also rejected the District Court's analysis of the public interest factors. It found that the District Court gave undue emphasis to the application of Scottish law:"'the mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before the court.'"Id. at 163 (quoting Hoffman v. Goberman, 420 F.2d 423, 427 (CA3 1970)). In any event, it believed that Scottish law need not be applied. After conducting its own choice of law analysis, the Court of Appeals determined that American law would govern the actions against both Piper and Hartzell. [Footnote 10] The same choice of law analysis apparently led it to conclude that Pennsylvania and Ohio, rather than Scotland, are the jurisdictions with the greatest policy interests in the dispute, and that all other public interest factors favored trial in the United States. [Footnote 11] Page 454 U. S. 246In any event, it appears that the Court of Appeals would have reversed even if the District Court had properly balanced the public and private interests. The court stated:"[I]t is apparent that the dismissal would work a change in the applicable law so that the plaintiff's strict liability claim would be eliminated from the case. But . . . a dismissal for forum non conveniens, like a statutory transfer, 'should not, despite its convenience, result in a change in the applicable law.' Only when American law is not applicable, or when the foreign jurisdiction would, as a matter of its own choice of law, give the plaintiff the benefit of the claim to which she is entitled here, would dismissal be justified."630 F.2d at 163-164 (footnote omitted) (quoting DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (CA3 1977), cert. denied, 435 U.S. 904 (1978)). In other words, the court decided that dismissal is automatically barred if it would lead to a change in the applicable law unfavorable to the plaintiff.We granted certiorari in these cases to consider the questions they raise concerning the proper application of the doctrine of forum non conveniens. 450 U.S. 909 (1981). [Footnote 12] Page 454 U. S. 247IIThe Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.We expressly rejected the position adopted by the Court of Appeals in our decision in Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413 (1932). That case arose out of a collision between two vessels in American waters. The Canadian owners of cargo lost in the accident sued the Canadian owners of one of the vessels in Federal District Court. The cargo owners chose an American court in large part because the relevant American liability rules were more favorable than the Canadian rules. The District Court dismissed on grounds of forum non conveniens. The plaintiffs argued that dismissal was inappropriate because Canadian laws were less favorable to them. This Court nonetheless affirmed:"We have no occasion to enquire by what law the rights of the parties are governed, as we are of the opinion Page 454 U. S. 248 that, under any view of that question, it lay within the discretion of the District Court to decline to assume jurisdiction over the controversy. . . . '[T]he court will not take cognizance of the case if justice would be as well done by remitting the parties to their home forum.'"Id. at 285 U. S. 419-420 (quoting Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S. 515, 281 U. S. 517 (1930)). The Court further stated that "[t]here as no basis for the contention that the District Court abused its discretion." 285 U.S. at 285 U. S. 423.It is true that Canada Malting was decided before Gilbert, and that the doctrine of forum non conveniens was not fully crystallized until our decision in that case. [Footnote 13] However, Gilbert in no way affects the validity of Canada Malting. Indeed, Page 454 U. S. 249 by holding that the central focus of the forum non conveniens inquiry is convenience, Gilbert implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law. [Footnote 14] Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. [Footnote 15] If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient.The Court of Appeals' decision is inconsistent with this Court's earlier forum non conveniens decisions in another respect. Those decisions have repeatedly emphasized the need to retain flexibility. In Gilbert, the Court refused to identify specific circumstances "which will justify or require either grant or denial of remedy." 330 U.S. at 330 U. S. 508. Similarly, in Koster, the Court rejected the contention that, where a trial would involve inquiry into the internal affairs of a foreign corporation, dismissal was always appropriate. "That is one, but only one, factor which may show convenience." 330 U.S. at 330 U. S. 527. And in Williams v. Green Bay & Western R. Co., 326 U. S. 549, 326 U. S. 557 (1946), we stated that we would not lay down a rigid rule to govern discretion, and that "[e]ach case turns on its facts." If central emphasis were Page 454 U. S. 250 placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable.In fact, if conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among several forums. Ordinarily, these plaintiffs will select that forum whose choice of law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial weight in the forum non conveniens inquiry, dismissal would rarely be proper.Except for the court below, every Federal Court of Appeals that has considered this question after Gilbert has held that dismissal on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff's chance of recovery. See, e.g., Pain v. United Technologies Corp., 205 U.S.App.D.C. 229, 248-249, 637 F.2d 775, 794-795 (1980); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (CA2 1975), cert. denied, 423 U.S. 1052 (1976); Anastasiadis v. S.S. Little John, 346 F.2d 281, 283 (CA5 1965), cert. denied, 384 U.S. 920 (1966). [Footnote 16] Several courts have relied expressly on Canada Malting to hold that the possibility of an unfavorable change of law should not, by itself, bar dismissal. See Fitzgerald Page 454 U. S. 251 v. Texaco, Inc., supra; Anglo-American Grain Co. v. The SIT Mina D'Amico, 169 F. Supp. 908 (ED Va.1959).The Court of Appeals' approach is not only inconsistent with the purpose of the forum non conveniens doctrine, but also poses substantial practical problems. If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult. Choice of law analysis would become extremely important, and the courts would frequently be required to interpret the law of foreign jurisdictions. First, the trial court would have to determine what law would apply if the case were tried in the chosen forum, and what law would apply if the case were tried in the alternative forum. It would then have to compare the rights, remedies, and procedures available under the law that would be applied in each forum. Dismissal would be appropriate only if the court concluded that the Law applied by the alternative forum is as favorable to the plaintiff as that of the chosen forum. The doctrine offorum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law. As we stated in Gilbert, the public interest factors point towards dismissal where the court would be required to "untangle problems in conflict of laws, and in law foreign to itself." 330 U.S. at 330 U. S. 509.Upholding the decision of the Court of Appeals would result in other practical problems. At least where the foreign plaintiff named an American manufacturer as defendant, [Footnote 17] a court could not dismiss the case on grounds of forum non Page 454 U. S. 252 conveniens where dismissal might lead to an unfavorable change in law. The American courts, which are already extremely attractive to foreign plaintiffs, [Footnote 18] would become even more attractive. The flow of litigation into the United States would increase and further congest already crowded courts. [Footnote 19] Page 454 U. S. 253The Court of Appeals based its decision, at least in part, on an analogy between dismissals on grounds of forum non conveniens and transfers between federal courts pursuant to § 1404(a). In Van Dusen v. Barrack, 376 U. S. 612 (1964), this Court ruled that a § 1404(a) transfer should not result in a change in the applicable law. Relying on dictum in an earlier Third Circuit opinion interpreting Van Dusen, the court below held that that principle is also applicable to a dismissal on forum non conveniens grounds. 630 F.2d at 164, and n. 51 (citing DeMateos v. Texaco, Inc., 562 F.2d at 899). However, § 1404(a) transfers are different than dismissals on the ground of forum non conveniens.Congress enacted § 1404(a) to permit change of venue between federal courts. Although the statute was drafted in accordance with the doctrine offorum non conveniens, see Revisor's Note, H.R.Rep. No. 308, 80th Cong., 1st Sess., A132 (1947); H.R.Rep. No. 2646, 79th Cong., 2d Sess., A127 (1946), it was intended to be a revision, rather than a codification of the common law. Norwood v. Kirkpatrick, 349 U. S. 29 (1955). District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Id. at 349 U. S. 31-32.The reasoning employed in Van Dusen v. Barrack is simply inapplicable to dismissals on grounds of forum non conveniens. That case did not discuss the common law doctrine. Rather, it focused on "the construction and application" of § 1404(a). 376 U.S. at 376 U. S. 613. [Footnote 20] Emphasizing the remedial Page 454 U. S. 254 purpose of the statute, Barrack concluded that Congress could not have intended a transfer to be accompanied by a change in law. Id. at 376 U. S. 622. The statute was designed as a "federal housekeeping measure," allowing easy change of venue within a unified federal system. Id. at 376 U. S. 613. The Court feared that, if a change in venue were accompanied by a change in law, forum-shopping parties would take unfair advantage of the relaxed standards for transfer. The rule was necessary to ensure the just and efficient operation of the statute. [Footnote 21]We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry. Of course, if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court may conclude that dismissal would not be in the interests of justice. [Footnote 22] In these cases, however, the remedies that Page 454 U. S. 255 would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly.IIIThe Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regarding the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests.AThe District Court acknowledged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign.The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. 330 U.S. at 330 U. S. 524. [Footnote 23] When the home forum has Page 454 U. S. 256 been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference. [Footnote 24] Page 454 U. S. 257The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Gilbert, 330 U.S. at 330 U. S. 511-512; Koster, 330 U.S. at 330 U. S. 531. Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court.(1)In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." 479 F. Supp. at 732. This characterization may be somewhat exaggerated. Particularly with respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and testing of the propeller and plane are located in the United States. She would have greater access to sources of proof relevant to her strict liability and negligence theories if trial were held here. [Footnote 25] However, the District Court did not act Page 454 U. S. 258 unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain.The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affidavits identifying the witnesses they would call and the testimony these witnesses would provide if the trial were held in the alternative forum. Such detail is not necessary. [Footnote 26] Piper and Hartzell have moved for dismissal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information Page 454 U. S. 259 was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States. [Footnote 27]The District Court correctly concluded that the problems posed by the inability to implead potential third-party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate, Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that, if Hartzell and Piper were found liable after a trial in the United States, they could institute an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for indemnity or contributions would be "burdensome," but not "unfair." 630 F.2d at 162. Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens. [Footnote 28](2)The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its Page 454 U. S. 260 choice of law analysis, it concluded that, if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly appropriate under Gilbert; in that case, we explicitly held that the need to apply foreign law pointed towards dismissal. [Footnote 29]The Court of Appeals found that the District Court's choice of law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland.Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home." 330 U.S. at 330 U. S. 509. Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hartzell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an Page 454 U. S. 261 American court is likely to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.IVThe Court of Appeals erred in holding that the possibility of an unfavorable change in law bars dismissal on the ground of forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest are foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtPiper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)Piper Aircraft Co. v. ReynoNo. 8048Argued October 14, 1981Decided December 8, 1981*454 U.S. 235SyllabusRespondent, as representative of the estates of several citizens and residents of Scotland who were killed in an airplane crash in Scotland during a charter flight, instituted wrongful death litigation in a California state court against petitioners, which are the company that manufactured the plane in Pennsylvania and the company that manufactured the plane's propellers in Ohio. At the time of the crash, the plane was registered in Great Britain and was owned and operated by companies organized in the United Kingdom. The pilot and all of the decedents' heirs and next of kin were Scottish subjects and citizens, and the investigation of the accident was conducted by British authorities. Respondent sought to recover from petitioners on the basis of negligence or strict liability (not recognized by Scottish law), and admitted that the action was filed in the United States because its laws regarding liability, capacity to sue, and damages are more favorable to respondent's position than those of Scotland. On petitioners' motion, the action was removed to a Federal District Court in California and was then transferred to the United States District Court for the Middle District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a). The District Court granted petitioners' motion to dismiss the action on the ground offorum non conveniens. Relying on the test set forth in Gulf Oil Corp. v. Gilbert, 330 U. S. 501, and analyzing the "private interest factors" affecting the litigants' convenience and the "public interest factors" affecting the forum's convenience, as set forth in Gilbert, the District Court concluded that Scotland was the appropriate forum. However, the Court of Appeals reversed, holding that the District Court had abused its discretion in conducting the Gilbert analysis and that, in any event, dismissal is automatically barred where Page 454 U. S. 236 the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plaintiff.Held:1. Plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the chosen forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413. Pp. 454 U. S. 247-255.(a) Under Gilbert, supra, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient, and the forum non conveniens doctrine would become virtually useless. Such an approach not only would be inconsistent with the purpose of the forum non conveniens doctrine, but also would pose substantial practical problems, requiring that trial courts determine complex problems in conflict of laws and comparative law, and increasing the flow into American courts of litigation by foreign plaintiffs against American manufacturers. Pp. 454 U. S. 248-252.(b) Nor may an analogy be drawn between forum non conveniens dismissals and transfers between federal courts pursuant to 28 U.S.C. § 1404(a), which was construed in Van Dusen v. Barrack, 376 U. S. 612, as precluding a transfer if it resulted in a change in the applicable law. The statute was enacted to permit change of venue between federal courts, and although it was drafted in accordance with the doctrine of forum non conveniens, it was intended to be a revision, rather than a codification of the common law. District courts were given more discretion to transfer under § 1404(a) than they had to dismiss on grounds of forum non conveniens. Van Dusen v. Barrack, supra, distinguished. Pp. 454 U. S. 253-254.2. The District Court properly decided that the presumption in favor of the plaintiff's forum choice applied with less than maximum force when the plaintiff or (as here) the real parties in interest are foreign. When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable, and the plaintiff's choice deserves less deference. Pp. 454 U. S. 255-256. Page 454 U. S. 2373. The forum non conveniens determination is committed to the trial court's sound discretion, and may be reversed only when there has been a clear abuse of discretion. Here, the District Court did not abuse its discretion in weighing the private and public interests under the Gilbert analysis, and thereby determining that the trial should be held in Scotland. Pp. 454 U. S. 257-261.(a) In analyzing the private interest factors, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland, a large proportion of the relevant evidence being located there. The District Court also correctly concluded that the problems posed by the petitioners' inability to implead potential Scottish third-party defendants -- the pilot's estate, the plane's owners, and the charter company -- supported holding the trial in Scotland. Pp. 454 U. S. 257-259.(b) The District Court's review of the factors relating to the public interest was also reasonable. Even aside from the question whether Scottish law might be applicable in part, all other public interest factors favor trial in Scotland, which has a very strong interest in this litigation. The accident occurred there, all of the decedents were Scottish, and apart from petitioners, all potential parties are either Scottish or English. As to respondent's argument that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products and that additional deterrence might be obtained by trial in the United States where they could be sued on the basis of both negligence and strict liability, any incremental deterrence from trial in an American court is likely to be insignificant and is not sufficient to justify the enormous commitment of judicial time and resources that would be required. Pp. 454 U. S. 259-261.630 F.2d 149, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, and in Parts I and II of which WHITE, J., joined. WHITE J., filed an opinion concurring in part and dissenting in part, post, p. 454 U. S. 261. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 454 U. S. 261. POWELL, J., took no part in the decision of the cases. O'CONNOR, J., took no part in the consideration or decision of the cases. Page 454 U. S. 238

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ever she disagreed with any anouncements or changes in GAAP and wished to depart from them. Pp. 100-102.(a) GAAP does not necessarily reflect economic reality, and its conservative orientation in guiding judgments and estimates ill serves Medicare reimbursement and its mandate to avoid cross-subsidization. pp. 100-101.(b) GAAP is not a lucid or encyclopedic set of pre-existing rules.It encompasses the conventions, rules, and procedures that define accepted accounting practice at a particular point in time, and changes over time. Even at anyone point, GAAP consists of multiple sources, any number of which might present conflicting treatments of a particular accounting question. pp. 101-102.996 F.2d 830, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA, SOUTER, and THOMAS, JJ., joined, post, p. 102.Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Anthony J. Steinmeyer, and John P. Schnitker.Scott W Taebel argued the cause for respondent. With him on the brief was Diane M. Signoracci. *JUSTICE KENNEDY delivered the opinion of the Court.In this case a health care provider challenges a Medicare reimbursement determination by the Secretary of Health and Human Services. What begins as a rather conventional accounting problem raises significant questions respecting the interpretation of the Secretary's regulations and her authority to resolve certain reimbursement issues by adju-*Briefs of amici curiae urging affirmance were filed for the American Hospital Association et al. by Robert A. Klein and Charles W Bailey; for the hospitals participating in St. John Hospital v. Shalala by William G. Christopher, Chris Rossman, and Kenneth R. Marcus; and for the Mother Frances Hospital et al. by Dan M. Peterson.90dication and interpretive rules, rather than by regulations that address all accounting questions in precise detail.The particular dispute concerns whether the Medicare regulations require reimbursement according to generally accepted accounting principles (GAAP), and whether the reimbursement guideline the Secretary relied upon is invalid because she did not follow the notice-and-comment provisions of the Administrative Procedure Act (APA) in issuing it. We hold that the Secretary's regulations do not require reimbursement according to GAAP and that her guideline is a valid interpretive rule.IRespondent Guernsey Memorial Hospital (hereinafter Hospital) issued bonds in 1972 and 1982 to fund capital improvements. In 1985, the Hospital refinanced its bonded debt by issuing new bonds. Although the refinancing will result in an estimated $12 million saving in debt service costs, the transaction did result in an accounting loss, sometimes referred to as an advance refunding or defeasance loss, of $672,581. The Hospital determined that it was entitled to Medicare reimbursement for about $314,000 of the loss. The total allowable amount of the loss is not in issue, but its timing is. The Hospital contends it is entitled to full reimbursement in one year, the year of the refinancing; the Secretary contends the loss must be amortized over the life of the old bonds.The Secretary's position is in accord with an informal Medicare reimbursement guideline. See U. S. Dept. of Health and Human Services, Medicare Provider Reimbursement Manual § 233 (Mar. 1993) (PRM). PRM § 233 does not purport to be a regulation and has not been adopted pursuant to the notice-and-comment procedures of the Administrative Procedure Act. The fiscal intermediary relied on § 233 and determined that the loss had to be amortized. The Provider Reimbursement Review Board disagreed, see App. to Pet. for Cert. 54a, but the Administrator of the Health Care91Financing Administration reversed the Board's decision, see id., at 40a. In the District Court the Secretary's position was sustained, see Guernsey Memorial Hospital v. Sullivan, 796 F. Supp. 283 (SD Ohio 1992), but the Court of Appeals reversed, see Guernsey Memorial Hospital v. Secretary of Health and Human Services, 996 F.2d 830 (CA6 1993). In agreement with the Hospital, the court interpreted the Secretary's own regulations to contain a "fiat statement that generally accepted accounting principles 'are followed'" in determining Medicare reimbursements. Id., at 833 (quoting 42 CFR §413.20(a)). Although it was willing to accept the argument that PRM § 233's treatment of advance refunding losses "squares with economic reality," 996 F. 2d, at 834, the Court of Appeals concluded that, because PRM § 233 departed from GAAP, it "effects a substantive change in the regulations [and is] void by reason of the agency's failure to comply with the Administrative Procedure Act in adopting it." Id., at 832. Once the court ruled that GAAP controlled the timing of the accrual, it followed that the Hospital, not the Secretary, was correct and that the entire loss should be recognized in the year of refinancing.We granted certiorari, 511 U. S. 1016 (1994), and now reverse.IIUnder the Medicare reimbursement scheme at issue here, participating hospitals furnish services to program beneficiaries and are reimbursed by the Secretary through fiscal intermediaries. See 42 U. S. C. §§ 1395g and 1395h (1988 and Supp. V). Hospitals are reimbursed for "reasonable costs," defined by the statute as "the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services." § 1395x(v)(1)(A). The Medicare Act, 79 Stat. 290, as amended, 42 U. S. C. § 1395 et seq., authorizes the Secretary to promulgate regulations "establishing the method or methods to be used" for determining reasonable costs, directing92her in the process to "consider, among other things, the principles generally applied by national organizations or established prepayment organizations (which have developed such principles) in computing" reimbursement amounts. § 1395x(v)(1)(A).The Secretary has promulgated, and updated on an annual basis, regulations establishing the methods for determining reasonable cost reimbursement. See Good Samaritan Hospital v. Shalala, 508 U. S. 402, 404-407 (1993). The relevant provisions can be found within 42 CFR pt. 413 (1994). Respondent contends that two of these regulations, §§ 413.20(a) and 413.24, mandate reimbursement according to GAAP, and the Secretary counters that neither does.ASection 413.20(a) provides as follows:"The principles of cost reimbursement require that providers maintain sufficient financial records and statistical data for proper determination of costs payable under the program. Standardized definitions, accounting, statistics, and reporting practices that are widely accepted in the hospital and related fields are followed. Changes in these practices and systems will not be required in order to determine costs payable under the principles of reimbursement. Essentially the methods of determining costs payable under Medicare involve making use of data available from the institution's basis accounts, as usually maintained, to arrive at equitable and proper payment for services to beneficiaries."Assuming, arguendo, that the "[s]tandardized definitions, accounting, statistics, and reporting practices" referred to by the regulation refer to GAAP, that nevertheless is just the beginning, not the end, of the inquiry. The decisive question still remains: Who is it that "follow[s]" GAAP, and for what purposes? The Secretary's view is that § 413.20(a) ensures93the existence of adequate provider records but does not dictate her own reimbursement determinations. We are persuaded that the Secretary's reading is correct.Section 413.20(a) sets forth its directives in an ordered progression. The first sentence directs that providers must maintain records that are sufficient for proper determination of costs. It does not say the records are conclusive of the entire reimbursement process. The second sentence makes it clear to providers that standardized accounting practices are followed. The third sentence reassures providers that changes in their recordkeeping practices and systems are not required in order to determine what costs the provider can recover when principles of reimbursement are applied to the provider's raw cost data. That sentence makes a distinction between recordkeeping practices and systems on one hand and principles of reimbursement on the other. The last sentence confirms the distinction, for it contemplates that a provider's basic financial information is organized according to GAAP as a beginning point from which the Secretary "arrive[s] at equitable and proper payment for services." This is far different from saying that GAAP is by definition an equitable and proper measure of reimbursement.The essential distinction between recordkeeping requirements and reimbursement principles is confirmed by the organization of the regulations in 42 CFR pt. 413 (1994). Subpart A sets forth introductory principles. Subpart B, containing the regulation here in question, is entitled "Accounting Records and Reports." The logical conclusion is that the provisions in subpart B concern recordkeeping requirements rather than reimbursement, and closer inspection reveals this to be the case. Section 413.20 is the first section in subpart B, and is entitled "Financial data and reports." In addition to § 413.20(a), the other paragraphs in § 413.20 govern the "[f]requency of cost reports," "[r]ecordkeeping requirements for new providers," "[c]ontinuing provider recordkeeping requirements," and "[s]uspension of program94payments to a provider ... [who] does not maintain. adequate records." Not until the following subparts are cost reimbursement matters considered. Subpart C is entitled "Limits on Cost Reimbursement," subpart D "Apportionment [of Allowable Costs]," subpart E "Payments to Providers," and subparts F through H address reimbursement of particular cost categories. The logical sequence of a regulation or a part of it can be significant in interpreting its meaning.It is true, as the Court of Appeals said, that § 413.20(a) "does not exist in a vacuum" but rather is a part of the overall Medicare reimbursement scheme. 996 F. 2d, at 835. But it does not follow from the fact that a provider's cost accounting is the first step toward reimbursement that it is the only step. It is hardly surprising that the reimbursement process begins with certain recordkeeping requirements.The regulations' description of the fiscal intermediary's role underscores this interpretation. The regulations direct the intermediary to consult and assist providers in interpreting and applying the principles of Medicare reimbursement to generate claims for reimbursable costs, § 413.20(b), suggesting that a provider's own determination of its claims involves more than handing over its existing cost reports. The regulations permit initial acceptance of reimbursable cost claims, unless there are obvious errors or inconsistencies, in order to expedite payment. § 413.64(f)(2). When a subsequent, more thorough audit follows, it may establish that adjustments are necessary. Ibid.; see also §§ 421.100(a), (c). This sequence as well is consistent with the Secretary's view that a provider's cost accounting systems are only the first step in the ultimate determination of reimbursable costs.The Secretary's position that § 413.20(a) does not bind her to reimburse according to GAAP is supported by the regulation's text and the overall structure of the regulations. It95is a reasonable regulatory interpretation, and we must defer to it. Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994); see also Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 151 (1991) ("Because applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers"); Lyng v. Payne, 476 U. S. 926, 939 (1986) ("agency's construction of its own regulations is entitled to substantial deference").Respondent argues that, even if § 413.20(a) does not mandate reimbursement according to GAAP, § 413.24 does. This contention need not detain us long. Section 413.24 requires that a provider's cost data be based on the accrual basis of accounting, under which "revenue is reported in the period when it is earned, regardless of when it is collected, and expenses are reported in the period in which they are incurred, regardless of when they are paid." § 413.24(b)(2). But GAAP is not the only form of accrual accounting; in fact, both the GAAP approach and PRM § 233 reflect different methods of accrual accounting. See Accounting Principles Board (APB) Opinion No. 26, " 5-8, reprinted at App. 64-66 (describing alternative accrual methods of recognizing advance refunding losses, including the one adopted in PRM § 233). Section 413.24 does not, simply by its accrual accounting requirement, bind the Secretary to make reimbursements according to GAAP.BThe Secretary's reading of her regulations is consistent with the Medicare statute. Rather than requiring adherence to GAAP, the statute merely instructs the Secretary, in establishing the methods for determining reimbursable costs, to "consider, among other things, the principles generally applied by national organizations or established prepay-96ment organizations (which have developed such principles) in computing the amount of payment ... to providers of services." 42 U. S. C. § 1395x(v)(1)(A).Nor is there any basis for suggesting that the Secretary has a statutory duty to promulgate regulations that, either by default rule or by specification, address every conceivable question in the process of determining equitable reimbursement. To the extent the Medicare statute's broad delegation of authority imposes a rulemaking obligation, see ibid., it is one the Secretary has without doubt discharged. See Good Samaritan Hospital v. Shalala, 508 U. S., at 418, and n. 13, 419, n. 15. The Secretary has issued regulations to address a wide range of reimbursement questions. The regulations are comprehensive and intricate in detail, addressing matters such as limits on cost reimbursement, apportioning costs to Medicare services, and the specific treatment of numerous particular costs. As of 1994, these regulations consumed some 640 pages of the Code of Federal Regulations.As to particular reimbursement details not addressed by her regulations, the Secretary relies upon an elaborate adjudicative structure which includes the right to review by the Provider Reimbursement Review Board, and, in some instances, the Secretary, as well as judicial review in federal district court of final agency action. 42 U. S. C. § 139500(f)(1); see Bethesda Hospital Assn. v. Bowen, 485 U. S. 399, 400-401 (1988). That her regulations do not resolve the specific timing question before us in a conclusive way, or "could use a more exact mode of calculating," does not, of course, render them invalid, for the "methods for the estimation of reasonable costs" required by the statute only need be "generalizations [that] necessarily will fail to yield exact numbers." Good Samaritan, supra, at 418. The AP A does not require that all the specific applications of a rule evolve by further, more precise rules rather than by adjudication. See NLRB v. Bell Aerospace Co., 416 U. S. 26797(1974); SEC v. Chenery Corp., 332 U. S. 194 (1947). The Secretary's mode of determining benefits by both rulemaking and adjudication is, in our view, a proper exercise of her statutory mandate.IIIWe also believe it was proper for the Secretary to issue a guideline or interpretive rule in determining that defeasance losses should be amortized. PRM § 233 is the means to ensure that capital-related costs allowable under the regulations are reimbursed in a manner consistent with the statute's mandate that the program bear neither more nor less than its fair share of costs. 42 U. S. C. § 1395x(v)(1)(A)(i) ("[T]he necessary costs of efficiently delivering covered services to individuals covered by [Medicare] will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by [Medicare]"). The Secretary has promulgated regulations authorizing reimbursement of capital-related costs such as respondent's that are "appropriate and helpful in ... maintaining the operation of patient care facilities," 42 CFR § 413.9(b)(2) (1994); see generally §§ 413.130-413.157, including "[n]ecessary and proper interest" and other costs associated with capital indebtedness, § 413.153(a)(1); see also §§ 413.130(a)(7) and (g). The only question unaddressed by the otherwise comprehensive regulations on this particular subject is whether the loss should be recognized at once or spread over a period of years. It is at this step that PRM § 233 directs amortization.Although one-time recognition in the initial year might be the better approach where the question is how best to portray a loss so that investors can appreciate in full a company's financial position, see APB Opinion 26, "4-5, reprinted at App. 64, the Secretary has determined in PRM § 233 that amortization is appropriate to ensure that Medicare only reimburse its fair share. The Secretary must calculate how much of a provider's total allowable costs are98attributable to Medicare services, see 42 CFR §§ 413.5(a), 413.9(a), and (c)(3) (1994), which entails calculating what proportion of the provider's services were delivered to Medicare patients, §§ 413.50 and 413.53. This ratio is referred to as the provider's "Medicare utilization." App. to Pet. for Cert. 49a. In allocating a provider's total allowable costs to Medicare, the Secretary must guard against various contingencies. The percentage of a hospital's patients covered by Medicare may change from year to year; or the provider may drop from the Medicare program altogether. Either will cause the hospital's Medicare utilization to fluctuate. Given the undoubted fact that Medicare utilization will not be an annual constant, the Secretary must strive to assure that costs associated with patient services provided over time be spread, to avoid distortions in reimbursement. As the provider's yearly Medicare utilization becomes ascertainable, the Secretary is able to allocate costs with accuracy and the program can bear its proportionate share. Proper reimbursement requires proper timing. Should the Secretary reimburse in one year costs in fact attributable to a span of years, the reimbursement will be determined by the provider's Medicare utilization for that one year, not for later years. This leads to distortion. If the provider's utilization rate changes or if the provider drops from the program altogether the Secretary will have reimbursed up front an amount other than that attributable to Medicare services. The result would be cross-subsidization, id., at 50a, which the Act forbids. 42 U. S. C. § 1395x(v)(1)(A)(i).That PRM § 233 implements the statutory ban on crosssubsidization in a reasonable way is illustrated by the Administrator's application of § 233 to the facts of this case. The Administrator found that respondent's loss "did not relate exclusively to patient care services rendered in the year of the loss .... [but were] more closely related to [patient care services in] the years over which the original bond term extended." App. to Pet. for Cert. 49a. Because the loss99was associated with patient services over a period of time, the Administrator concluded that amortization was required to avoid the statutory ban on cross-subsidization:"The statutory prohibition against cross-subsidization [citing the provision codified at 42 U. S. C. § 1395x (v)(l)(A)], requires that costs recognized in one year, but attributable to health services rendered over a number of years, be amortized and reimbursed during those years when Medicare beneficiaries use those services." Id., at 50a (footnote omitted)."By amortizing the loss to match it to Medicare utilization over the years to which it relates, the program is protected from any drop in Medicare utilization, and the provider is likewise assured that it will be adequately reimbursed if Medicare utilization increases. Further, the program is protected from making a payment attributable to future years and then having the provider drop out of the Program before services are rendered to Medicare beneficiaries in those future years." Id., at 49a (footnote omitted).As an application of the statutory ban on crosssubsidization and the regulatory requirement that only the actual cost of services rendered to beneficiaries during a given year be reimbursed, 42 U. S. C. § 1395x(v)(1)(A)(i); 42 CFR § 413.9 (1994), PRM § 233 is a prototypical example of an interpretive rule" 'issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.'" Chrysler Corp. v. Brown, 441 U. S. 281, 302, n. 31 (1979) (quoting Attorney General's Manual on the Administrative Procedure Act 30, n. 3 (1947)). Interpretive rules do not require notice and comment, although, as the Secretary recognizes, see Foreword to PRM, they also do not have the force and effect of law and are not accorded that weight in the adjudicatory process, ibid.100We can agree that APA rulemaking would still be required if PRM § 233 adopted a new position inconsistent with any of the Secretary's existing regulations. As set forth in Part II, however, her regulations do not require reimbursement according to GAAP. PRM § 233 does not, as the Court of Appeals concluded it does, "effec[t] a substantive change in the regulations." 996 F. 2d, at 832.IVThere is much irony in the suggestion, made in support of the Hospital's interpretation of the statute and regulations, that the Secretary has bound herself to delegate the determination of any matter not specifically addressed by the regulations to the conventions of financial accounting that comprise GAAP. The Secretary in effect would be imposing upon herself a duty to go through the time-consuming rulemaking process whenever she disagrees with any announcements or changes in GAAP and wishes to depart from them. Examining the nature and objectives of GAAP illustrates the unlikelihood that the Secretary would choose that course.Contrary to the Secretary's mandate to match reimbursement with Medicare services, which requires her to determine with some certainty just when and on whose account costs are incurred, GAAP "do[es] not necessarily parallel economic reality." R. Kay & D. Searfoss, Handbook of Accounting and Auditing, ch. 5, p. 7 (2d ed. 1989). Financial accounting is not a science. It addresses many questions as to which the answers are uncertain and is a "process [that] involves continuous judgments and estimates." Id., ch. 5, at 7-8. In guiding these judgments and estimates, "financial accounting has as its foundation the principle of conservatism, with its corollary that 'possible errors in measurement [should] be in the direction of understatement rather than overstatement of net income and net assets.'" Thor Power Tool Co. v. Commissioner, 439 U. S. 522, 542 (1979) (citation omitted). This orientation may be consistent with the ob-101jective of informing investors, but it ill serves the needs of Medicare reimbursement and its mandate to avoid crosssubsidization. Cf. id., at 543 ("[T]he accountant's conservatism cannot bind the Commissioner [of the IRS] in his efforts to collect taxes").GAAP is not the lucid or encyclopedic set of pre-existing rules that the dissent might perceive it to be. Far from a single-source accounting rulebook, GAAP "encompasses the conventions, rules, and procedures that define accepted accounting practice at a particular point in time." Kay & Searfoss, ch. 5, at 7 (1994 Update). GAAP changes and, even at anyone point, is often indeterminate. "[T]he determination that a particular accounting principle is generally accepted may be difficult because no single source exists for all principles." Ibid. There are 19 different GAAP sources, any number of which might present conflicting treatments of a particular accounting question. Id., ch. 5, at 6-7. When such conflicts arise, the accountant is directed to consult an elaborate hierarchy of GAAP sources to determine which treatment to follow. Ibid. We think it is a rather extraordinary proposition that the Secretary has consigned herself to this process in addressing the timing of Medicare reimbursement.The framework followed in this case is a sensible structure for the complex Medicare reimbursement process. The Secretary has promulgated regulations setting forth the basic principles and methods of reimbursement, and has issued interpretive rules such as PRM § 233 that advise providers how she will apply the Medicare statute and regulations in adjudicating particular reimbursement claims. Because the Secretary's regulations do not bind her to make Medicare reimbursements in accordance with GAAP, her determination in PRM § 233 to depart from GAAP by requiring bond defeasance losses to be amortized does not amount to a substantive change to the regulations. It is a valid interpretive rule, and it was reasonable for the Secretary to follow that102policy here to deny respondent's claim for full reimbursement of its defeasance loss in 1985.The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1994SyllabusSHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES v. GUERNSEY MEMORIAL HOSPITALCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo.93-1251. Argued October 31, 1994-Decided March 6,1995After the refinancing of its bonded debt resulted in a "defeasance" loss for accounting purposes, respondent health care provider (hereinafter Hospital) determined that it was entitled to Medicare reimbursement for part of that loss. Although the Hospital contended that it should receive its full reimbursement in the year of the refinancing, the fiscal intermediary agreed with petitioner Secretary of Health and Human Services that the loss had to be amortized over the life of the Hospital's old bonds in accord with an informal Medicare reimbursement guideline, PRM § 233. The District Court ultimately sustained the Secretary's position, but the Court of Appeals reversed. Interpreting the Secretary's Medicare regulations, 42 CFR pt. 413, to require reimbursement according to generally accepted accounting principles (GAAP), the latter court concluded that, because PRM § 233 departed from GAAP, it effected a substantive change in the regulations and was void by reason of the Secretary's failure to issue it in accordance with the notice-andcomment provisions of the Administrative Procedure Act (APA).Held:1. The Secretary is not required to adhere to GAAP in making provider reimbursement determinations. Pp. 91-97.(a) The Medicare regulations do not require reimbursement according to GAAP. The Secretary's position that 42 CFR § 413.20(a)-which specifies, inter alia, that "[tJhe principles of cost reimbursement require that providers maintain sufficient financial records ... for proper determination of costs," and that "[sJtandardized definitions, accounting, statistics, and reporting practices that are widely accepted in the hospital and related fields are followed"-ensures the existence of adequate provider records but does not dictate the Secretary's own reimbursement determinations is supported by the regulation's text and the overall structure of the regulations and is therefore entitled to deference as a reasonable regulatory interpretation. Moreover, § 413.24-which requires that a provider's cost data be based on the accrual basis of accounting-does not mandate reimbursement according to GAAP, since GAAP is not the only form of accrual accounting. In fact, PRM § 233 reflects a different accrual method. Pp. 92-95.88(b) The Secretary's reading of her regulations is consistent with the Medicare statute, which does not require adherence to GAAP, but merely instructs that, in establishing methods for determining reimbursable costs, she should "consider, among other things, the principles generally applied by national organizations or established prepayment organizations (which have developed such principles) ... ," 42 U. S. C. § 1395x(v)(1)(A). Nor is there any basis for suggesting that the Secretary has a statutory duty to promulgate regulations that address every conceivable question in the process of determining equitable reimbursement. To the extent that § 1395x(v)(1)(A)'s broad delegation of authority to her imposes a rulemaking obligation, it is one she has without doubt discharged by issuing comprehensive and intricate regulations that address a wide range of reimbursement questions and by relying upon an elaborate adjudicative structure to resolve particular details not specifically addressed by regulation. The APA does not require that all the specific applications of a rule evolve by further, more precise rules rather than by adjudication, and the Secretary's mode of determining benefits by both rulemaking and adjudication is a proper exercise of her statutory mandate. pp. 95-97.2. The Secretary's failure to follow the APA notice-and-comment provisions in issuing PRM § 233 does not invalidate that guideline. It was proper for the Secretary to issue a guideline or interpretive rule in determining that defeasance losses should be amortized. PRM § 233 is the Secretary's means of implementing the statute's mandate that the Medicare program bear neither more nor less than its fair share of reimbursement costs, 42 U. S. C. § 1395x(v)(1)(A)(i), and the regulatory requirement that only the actual cost of services rendered to beneficiaries during a given year be reimbursed, 42 CFR § 413.9. As such, PRM § 233 is a prototypical example of an interpretive rule issued by an agency to advise the public of its construction of the statutes and rules it administers. Interpretive rules do not require notice and comment, although they also do not have the force and effect of law and are not accorded that weight in the adjudicatory process. APA rulemaking would be required if PRM § 233 adopted a new position inconsistent with any of the Secretary's existing regulations. However, because the Secretary's regulations do not bind her to make Medicare reimbursements in accordance with GAAP, her determination in PRM § 233 to depart from GAAP by requiring bond defeasance losses to be amortized does not amount to a substantive change to the regulations. Pp.97-100.3. An examination of the nature and objectives of GAAP illustrates the unlikelihood that the Secretary would choose to impose upon herself the duty to go through the time-consuming rulemaking process when-89Full Text of Opinion

1955_8

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Petitioners brought suit in the United States District Court for the Southern District of Mississippi, seeking Page 350 U. S. 62 recovery under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. They alleged that, on October 1, 1951, the tug Navajo, owned by petitioner Indian Towing Company, was towing Barge AS-16, chartered by petitioner Upper Mississippi Towing Corporation; that the barge was loaded with a cargo of triple super phosphate, consigned to petitioner Minnesota Farm Bureau Service Company and insured by petitioner United Firemen's Insurance Company; that the tug Navajo went aground on Chandeleur Island, and, as a result thereof, sea water wetted and damaged the cargo to the extent of $62,659.70; that the consignee refused to accept the cargo; that petitioners Indian Towing Company and Upper Mississippi Towing Corporation therefore became responsible for the loss of the cargo; and that the loss was paid by petitioner United Firemen's Insurance Company under loan receipts. The complaint further stated that the grounding of the Navajo was due solely to the failure of the light on Chandeleur Island, which, in turn, was caused by the negligence of the Coast Guard. The specific acts of negligence relied on were the failure of the responsible Coast Guard personnel to check the battery and sun relay system which operated the light; the failure of the Chief Petty Officer who checked the lighthouse on September 7, 1951, to make a proper examination of the connections which were "out in the weather;" the failure to check the light between September 7 and October 1, 1951; and the failure to repair the light or give warning that the light was not operating. Petitioners also alleged that there was a loose connection which could have been discovered upon proper inspection.On motion of the respondent, the case was transferred to the United States District Court for the Eastern District of Louisiana, New Orleans Division. Respondent Page 350 U. S. 63 then moved to dismiss on the ground that it has not consented to be sued "in the manner in which this suit is brought," in that petitioners' only relief was under the Suits in Admiralty Act, 41 Stat. 525, or the Public Vessels Act, 43 Stat. 1112. This motion was granted, and the Court of Appeals for the Fifth Circuit affirmed per curiam. 211 F.2d 886. Because the case presented an important aspect of the still undetermined extent of the Government's liability under the Federal Tort Claims Act, we granted certiorari, 348 U.S. 810. The judgment of the Court of Appeals was affirmed by an equally divided Court, 349 U.S. 902, but a petition for rehearing was granted, the earlier judgment in this Court vacated, and the case restored to the docket for reargument before the full Bench. 349 U.S. 926.The relevant provisions of the Federal Tort Claims Act are 28 U.S.C. §§ 1346(b), 2674, and 2680(a):§ 1346(b).". . . [T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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."§ 2674."The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.""* * * * Page 350 U. S. 64" § 2680."The provisions of this chapter and section 1346(b) of this title shall not apply to --""(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."The question is one of liability for negligence at what this Court has characterized the "operational level" of governmental activity. Dalehite v. United States, 346 U. S. 15, 346 U. S. 42. The Government concedes that the exception of § 2680 relieving from liability for negligent "exercise of judgment" (which is the way the Government paraphrases a "discretionary function" in § 2680(a)) is not involved here, and it does not deny that the Federal Tort Claims Act does provide for liability in some situations on the "operational level" of its activity. But the Government contends that the language of § 2674 (and the implications of § 2680) imposing liability "in the same manner and to the same extent as a private individual under like circumstances . . . " must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of "uniquely governmental functions." The Government reads that statute as if it imposed liability to the same extent as would be imposed on a private individual "under the same circumstances." But the statutory language is "under like circumstances," and it is hornbook tort law that one who undertakes to warn the public of danger, and thereby Page 350 U. S. 65 induces reliance, must perform his "good Samaritan" task in a careful manner.Furthermore, the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation, and not as if it were a private person, and it would thus push the courts into the "nongovernmental"-"governmental" quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious, and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts. [Footnote 1] Page 350 U. S. 66While the Government disavows a blanket exemption from liability for all official conduct furthering the "uniquely governmental" activity in any way, it does claim that there can be no recovery based on the negligent performance of the activity itself, the so-called "end objective" of the particular governmental activity. Let us suppose that the Chief Petty Officer going in a Coast Guard car to inspect the light on Chandeleur Island first negligently ran over a pedestrian; later, while he was inspecting the light, he negligently tripped over a wire and injured someone else; he then forgot to inspect an outside connection, and that night the patently defective connection broke and the light failed, causing a ship to go aground and its cargo of triple super phosphate to get wet; finally the Chief Petty Officer on his way out of the lighthouse touched a key to an uninsulated wire to see that it was carrying current, and the spark he produced caused a fire which sank a nearby barge carrying triple super phosphate. Under the Government's theory, some of these acts of negligence would be actionable, and some would not. But is there a rational ground, one that would carry conviction to minds not in the grip of technical obscurities, why there should be any difference in result? The acts were different in time and place, but all were done in furtherance of the officer's task of inspecting the lighthouse and in furtherance of the Coast Guard's task in operating a light on Chandeleur Island. Moreover, if the United States were to permit the operation of private lighthouses -- not at all inconceivable -- the Government's basis of differentiation would be gone, and the negligence charged in this case would be actionable. Yet there would be no change in the character of the Page 350 U. S. 67 Government's activity in the places where it operated a lighthouse, and we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance -- the presence of identical private activity. [Footnote 2]While the area of liability is circumscribed by certain provisions of the Federal Tort Claims Act, see 28 U.S.C. § 2680, all Government activity is inescapably "uniquely governmental" in that it is performed by the Government. In a case in which the Federal Crop Insurance Corporation, a wholly Government-owned enterprise, was sought to be held liable on a crop insurance policy on the theory that a private insurance company would be liable in the same situation, this Court stated:"Government is not partly public or partly private, depending upon the governmental Page 350 U. S. 68 pedigree of the type of a particular activity or the manner in which the Government conducts it."Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380, 332 U. S. 383-384. On the other hand, it is hard to think of any governmental activity on the "operational level," our present concern, which is "uniquely governmental," in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed.There is nothing in the Tort Claims Act which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation. The statute was the product of nearly thirty years of congressional consideration, and was drawn with numerous substantive limitations and administrative safeguards. (For substantive limitations, see § 2680(a)-(m). [Footnote 3] For administrative safeguards, see § 2401(b) (statute of limitations); § 2402 (denial of trial by jury); § 2672 (administrative adjudgment of claims of $1,000 or less); § 2673 (reports to Congress); § 2674 (no liability for punitive damages or for interest prior to judgment); § 2675 (disposition by federal agency as prerequisite to suit when claim is filed); § 2677 (compromise); § 2679 (exclusiveness of remedy).) The language of the statute does not support the Government's argument. Loose general statements in the legislative history to which the Government points seem directed mainly toward the "discretionary function" exemption of § 2680, and are not persuasive. The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable, and not Page 350 U. S. 69 to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it, as a self-constituted guardian of the Treasury, import immunity back into a statute designed to limit it.The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order, and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.The Court of Appeals for the Fifth Circuit considered Feres v. United States, 340 U. S. 135, and Dalehite v. United States, 346 U. S. 15, controlling. Neither case is applicable. Feres held only that"the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law."340 U.S. at 340 U. S. 146. And see Brooks v. United States, 337 U. S. 49. The differences between this case and Dalehite need not be labored. The governing factors in Dalehite sufficiently emerge from the opinion in that case. [Footnote 4] Page 350 U. S. 70The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings.Reversed

U.S. Supreme CourtIndian Towing Co., Inc. v. United States, 350 U.S. 61 (1955)Indian Towing Co., Inc. v. United StatesNo. 8Argued February 10, 1955Affirmed by an equally divided Court April 11, 1955Rehearing granted May 16, 1955Reargued October 13, 1955Decided November 21, 1955350 U.S. 61SyllabusIf the Coast Guard is negligent in the operation of a lighthouse and damage is caused thereby, the United States is liable under the Tort Claims Act. Pp. 350 U. S. 61-70.(a) The language of 28 U.S.C. § 2674, imposing liability "in the same manner and to the same extent as a private individual under like circumstances," is not to be read as excluding liability for negligent conduct in the operation of an enterprise in which private persons are not engaged. Pp. 350 U. S. 64-65.(b) The Tort Claims Act does not impliedly incorporate the distinction between "governmental" and "nongovernmental" functions which has caused confusion in the law of municipal liability for torts. Pp. 350 U. S. 65-69.(c) Once the Coast Guard has exercised its discretion to operate a lighthouse at a certain place, it is obligated to use due care to make certain that the light is kept in good working order, and, if the light becomes extinguished, the Coast Guard is further obligated to use due care to discover this fact and to repair the light or give warning that it is not functioning. P. 350 U. S. 69.(d) Feres v. United States, 340 U. S. 135, and Dalehite v. United States, 346 U. S. 15, distinguished. P. 350 U. S. 69.211 F.2d 886 reversed and remanded.

1977_76-1471

(a) The regulations, which are designed to promote diversification of the mass media as a whole, are based on public interest goals that the FCC is authorized to pursue. As long as the regulations are not an unreasonable means for seeking to achieve those goals, they fall within the FCC's general rulemaking authority recognized in United States v. Storer Page 436 U. S. 776 Broadcasting Co., 351 U. S. 192, and National Broadcasting Co. v. United States, 319 U. S. 190. Pp. 436 U. S. 793-796.(b) Although it is contended that the rulemaking record did not conclusively establish that the prospective ban would fulfill the stated purpose,"[d]iversity and its effects are . . . elusive concepts, not easily defined let alone measured without making quality judgments objectionable on both policy and First Amendment grounds,"and evidence of specific abuses by common owners is difficult to compile. In light of these considerations, the FCC clearly did not take an irrational view of the public interest when it decided to impose the prospective ban, and was entitled to rely on its judgment, based on experience, that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination." In view of changed circumstances in the broadcasting industry, moreover, the FCC was warranted in departing from its earlier licensing decisions that allowed co-located combinations. Pp. 436 U. S. 796-797.(c) The contention that the First Amendment rights of newspaper owners are violated by the regulations ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 388. In view of the limited broadcast spectrum, allocation and regulation of frequencies are essential. Nothing in the First Amendment prevents such allocation as will promote the "public interest" in diversification of the mass communications media. A newspaper owner need not forfeit his right to publish in order to acquire a station in another community; nor is he "singled out" for more stringent treatment than other owners of mass media under already existing multiple ownership rules. Far from seeking to limit the flow of information, the FCC has acted "to enhance the diversity of information heard by the public without on-going government surveillance of the content of speech." The regulations are a reasonable means of promoting the public interest in diversified mass communications, and thus they do not violate the First Amendment rights of those who will be denied broadcasting licenses pursuant to them. Pp. 436 U. S. 798-802.(d) The limited divestiture requirement reflects a rational weighing of competing policies. The FCC rationally concluded that forced dissolution of all existing co-located combinations, though fostering diversity, would disrupt the industry and cause individual hardship, and would or might harm the public interest in several respects, specifically identified by the FCC. In the past, the FCC has consistently acted on the theory that preserving continuity of meritorious service furthers the Page 436 U. S. 777 public interest. And, in the instant proceeding, the FCC specifically noted that the existing newspaper-broadcast combinations had a "long record of service" in the public interest, and concluded that their replacement by new owners would not guarantee the same, level of service, would cause serious disruption during the transition period, and would probably result in a decline of local ownership. Pp. 436 U. S. 803-809.(e) The function of weighing policies under the public interest standard has been delegated by Congress to the FCC in the first instance, and there is no bass for a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." Such a presumption would not comport with the FCC's longstanding and judicially approved practice of giving controlling weight in some circumstances to its goal of achieving "the best practicable service to the public." There is no statutory or other obligation that diversification should be given controlling weight in all circumstances. The FCC has made clear that diversification of ownership is a less significant factor when the renewal of an existing license, as compared with an initial licensing application, is being considered, and the policy of evaluating existing licensees on a somewhat different basis from new applicants appears to have been approved by Congress. Since the decision to "grandfather" most existing combinations was based on judgments and predictions by the FCC, complete factual support in the record was not required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 365 U. S. 9. Nor was it arbitrary for the FCC to order divestiture in only the 16 "egregious cases," since the FCC made a rational judgment in concluding that the need for diversification was especially great in cases of local monopoly. Pp. 436 U. S. 809-815.181 U.S.App.D.C. 1, 555 F.2d 938, affirmed in part and reversed in part.MARSHALL, J., delivered the opinion of the Court, in which all other Members joined except BRENNAN, J., who took no part in the consideration or decision of the cases. Page 436 U. S. 779MR. JUSTICE MARSHALL delivered the opinion of the Court.At issue in these cases are Federal Communications Commission regulations governing the permissibility of common ownership of a radio or television broadcast station and a daily newspaper located in the same community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F.C.C.2d 1046 (1975) (hereinafter cited as Order), as amended upon reconsideration, 53 F.C.C.2d 589 (1975), codified in 47 CFR §§ 73.35, 73.240, 73.636 (1976). The regulations, adopted after a lengthy rulemaking proceeding, prospectively bar formation or transfer of co-located newspaper-broadcast combinations. Existing combinations are generally permitted to continue in operation. However, in communities in which there is common ownership of the only daily newspaper and the only broadcast station, or (where there is more than one broadcast station) of the only daily newspaper and the only television station, divestiture of either the newspaper or the broadcast station is required within five years, unless grounds for waiver are demonstrated.The questions for decision are whether these regulations either exceed the Commission's authority under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. §151 et seq. (1970 ed. and Supp. V), or violate the First or Fifth Amendment rights of newspaper owners; and whether the lines drawn by the Commission between new and existing newspaper-broadcast combinations, and between existing combinations subject to divestiture and those allowed to continue in operation, are arbitrary or capricious within the meaning of §10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1976 ed.). For the reasons set forth below, we sustain the regulations in their entirety. Page 436 U. S. 780IAUnder the regulatory scheme established by the Radio Act of 1927, 44 Stat. 1162, and continued in the Communications Act of 1934, no television or radio broadcast station may operate without a license granted by the Federal Communications Commission. 47 U.S.C. § 301. Licensees who wish to continue broadcasting must apply for renewal of their licenses every three years, and the Commission may grant an initial license or a renewal only if it finds that the public interest, convenience, and necessity will be served thereby. §§ 307(a), (d), 308(a), 309(a), (d).In setting its licensing policies, the Commission has long acted on the theory that diversification of mass media ownership serves the public interest by promoting diversity of program and service viewpoints, as well as by preventing undue concentration of economic power. See, e.g., Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 F.C.C. 1476, 1476-1477 (1964). This perception of the public interest has been implemented over the years by a series of regulations imposing increasingly stringent restrictions on multiple ownership of broadcast stations. In the early 1940's, the Commission promulgated rules prohibiting ownership or control of more than one station in the same broadcast service (AM radio, FM radio, or television) in the same community. [Footnote 1] Page 436 U. S. 781 In 1953, limitations were placed on the total number of stations in each service a person or entity may own or control. [Footnote 2] And in 1970, the Commission adopted regulations prohibiting, on a prospective basis, common ownership of a VHF television station and any radio station serving the same market. [Footnote 3]More generally, "[d]iversification of control of the media of mass communications" has been viewed by the Commission as "a factor of primary significance" in determining who, among competing applicants in a comparative proceeding, should receive the initial license for a particular broadcast facility. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394-395 (1965) (italics omitted). Thus, prior to adoption of the regulations at issue here, the fact that an applicant for an initial license published a new paper in the community to be served by the broadcast station was taken into account on a case-by-case basis, and resulted in some instances in awards of licenses to competing applicants. [Footnote 4] Page 436 U. S. 782Diversification of ownership has not been the sole consideration thought relevant to the public interest, however. The Commission's other, and sometimes conflicting, goal has been to ensure "the best practicable service to the public." Id. at 394. To achieve this goal, the Commission has weighed factors such as the anticipated contribution of the owner to station operations, the proposed program service, and the past broadcast record of the applicant -- in addition to diversification of ownership -- in making initial comparative licensing decisions. See id. at 395-400. Moreover, the Commission has given considerable weight to a policy of avoiding undue disruption of existing service. [Footnote 5] As a result, newspaper owners Page 436 U. S. 783 in many instances have been able to acquire broadcast licenses for stations serving the same communities as their newspapers, and the Commission has repeatedly renewed such licenses on findings that continuation of the service offered by the common owner would serve the public interest. See Order, at 1066-1067 1074-1075.BAgainst this background, the Commission began the instant rulemaking proceeding in 1970 to consider the nee for a more restrictive policy toward newspaper ownership of radio and television broadcast stations. Further Notice of Proposed Rulemaking (Docket No. 18110), 22 F.C.C.2d 339 (1970). [Footnote 6] Citing studies showing the dominant role of television stations and daily newspapers as sources of local news and other information, id. at 346; see id. at 344-346 [Footnote 7] the notice of Page 436 U. S. 784 rulemaking proposed adoption of regulations that would eliminate all newspaper-broadcast combinations serving the same market, by prospectively banning formation or transfer of such combinations and requiring dissolution of all existing combinations within five years, id. at 346. The Commission suggested that the proposed regulations would serve "the purpose of promoting competition among the mass media involved, and maximizing diversification of service sources and viewpoints." Ibid. At the same time, however, the Commission expressed "substantial concern" about the disruption of service that might result from divestiture of existing combinations. Id. at 348. Comments were invited on all aspects of the proposed rules.The notice of rulemaking generated a considerable response. Nearly 200 parties, including the Antitrust Division of the Justice Department, various broadcast and newspaper interests, public interest groups, and academic and research entities, filed comments on the proposed rules. In addition, a number of studies were submitted, dealing with the effects of newspaper-broadcast cross-ownership on competition and station performance, the economic consequences of divestiture, and the degree of diversity present in the mass media. In March, 1974, the Commission requested further comments directed primarily to the core problem of newspaper-television station cross-ownership, Memorandum Opinion and Order (Docket No. 18110), 47 F.C.C.2d 97 (1974), and close to 50 sets of additional comments were filed. In July, 1974, the Commission held three days of oral argument, at which all parties who requested time were allowed to speak.The regulations at issue here were promulgated and explained in a lengthy report and order released by the Commission on January 31, 1975. The Commission concluded, first, that it had statutory authority to issue the regulations under the Communications Act, Order, at 1048, citing 47 U.S.C. §§ 2(a), 4(i), 4(j), 301, 303, 309(a), and that the Page 436 U. S. 785 regulations were valid under the First and Fifth Amendments to the Constitution, Order, at 1050-1051. It observed that"[t]he term public interest encompasses many factors, including 'the widest possible dissemination of information from diverse and antagonistic sources.'"Order, at 1048, quoting Associated Press v. United States, 326 U. S. 1, 326 U. S. 20 (1945), and that "ownership carries with it the power to select, to edit, and to choose the methods, manner and emphasis of presentation," Order at 1050. The Order further explained that the prospective ban on creation of co-located newspaper-broadcast combinations was grounded primarily in First Amendment concerns, while the divestiture regulations were based on both First Amendment and antitrust policies. Id. at 1049. In addition, the Commission rejected the suggestion that it lacked the power to order divestiture, reasoning that the statutory requirement of license renewal every three years necessarily implied authority to order divestiture over a five-year period. Id. at 1052.After reviewing the comments and studies submitted by the various parties during the course of the proceeding, the Commission then turned to an explanation of the regulations and the justifications for their adoption. The prospective rules, barring formation of new broadcast-newspaper combinations in the same market as well as transfers of existing combinations to new owners, were adopted without change from the proposal set forth in the notice of rulemaking. [Footnote 8] While recognizing Page 436 U. S. 786 the pioneering contributions of newspaper owners to the broadcast industry, the Commission concluded that changed circumstances made it possible, and necessary, for all new licensing of broadcast stations to "be expected to add to local diversity." Id. at 1075. [Footnote 9] In reaching this conclusion, the Commission did not find that existing co-located newspaper-broadcast combinations had not served the public interest, or that such combinations necessarily "spea[k] with one voice" or are harmful to competition. Id. at 1085, 1089. In the Commission's view, the conflicting studies submitted by the parties concerning the effects of newspaper ownership on competition and station performance were inconclusive, and no pattern of specific abuses by existing cross-owners was demonstrated. See id. at 1072-1073, 1085, 1089. The prospective rules were justified, instead, by reference to the Commission's policy of promoting diversification of ownership: increases in diversification of ownership would possibly result in enhanced diversity of viewpoints, and, given the absence of persuasive countervailing considerations, "even a small gain in diversity" was "worth pursuing." Id. at 1076, 1080 n. 30. With respect to the proposed across-the-board divestiture requirement, however, the Commission concluded that "a mere hoped-for gain in diversity" was not a sufficient justification. Id. at 1078. Characterizing the divestiture issues as "the most difficult" presented in the proceeding, the Order explained that the proposed rules, while correctly recognizing the central importance of diversity considerations, "may have Page 436 U. S. 787 given too little weight to the consequences which could be expected to attend a focus on the abstract goal alone." Ibid. Forced dissolution would promote diversity, but it would also cause "disruption for the industry and hardship for individual owners," "resulting in losses or diminution of service to the public." Id. at 1078, 1080.The Commission concluded that, in light of these countervailing considerations, divestiture was warranted only in "the most egregious cases," which it identified as those in which a newspaper-broadcast combination has an "effective monopoly" in the local "marketplace of ideas, as well as economically." Id. at 1080-1081. The Commission recognized that any standards for defining which combinations fell within that category would necessarily be arbitrary to some degree, but "[a] choice had to be made." Id. at 1080. It thus decided to require divestiture only where there was common ownership of the sole daily newspaper published in a community and either (1) the sole broadcast station providing that entire community with a clear signal, or (2) the sole television station encompassing the entire community with a clear signal. Id. at 1080-1084. [Footnote 10] Page 436 U. S. 788The Order identified 8 television-newspaper and 10 radio-newspaper combinations meeting the divestiture criteria. Id. at 1085, 1098. Waivers of the divestiture requirement were granted sua sponte to 1 television and 1 radio combination, leaving a total of 16 stations subject to divestiture. The Commission explained that waiver requests would be entertained in the latter cases, [Footnote 11] but, absent waiver, either the newspaper or the broadcast station would have to be divested by January 1, 1980. Id. at 1084-1086. [Footnote 12] Page 436 U. S. 789On petitions for reconsideration, the Commission reaffirmed the rules in all material respect. Memorandum Opinion and Order (Docket No. 18110), 53 F.C.C.2d 589 (1975).CVarious parties -- including the National Citizens Committee for Broadcasting (NCCB), the National Association of Broadcasters (NAB), the American Newspaper Publishers Association (ANPA), and several broadcast licensees subject to the divestiture requirement -- petitioned for review of the regulations in the United States Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1), 2343 (1970 ed. and Supp. V). Numerous other parties intervened, an the United States -- represented by the Justice Department -- was made a respondent pursuant to 28 U.S.C. §§ 2344, 2348. NAB, ANPA, and the broadcast licensees subject to divestiture argued that the regulations went too far in restricting cross-ownership of newspapers and broadcast stations; NCCB and the Justice Department contended that the regulations did not go far enough and that the Commission inadequately justified its decision not to order divestiture on a more widespread basis.Agreeing substantially with NCCB and the Justice Department, the Court of Appeals affirmed the prospective ban on new licensing of co-located newspaper-broadcast combinations, but vacated the limited divestiture rules, and ordered the Commission to adopt regulations requiring dissolution of all existing combinations that did not qualify for a waiver under the procedure outlined in the Order. 181 U.S.App. D C. 1, 555 F.2d 938 (1977); see n 11, supra. The court held, first, that the prospective ban was a reasonable means of furthering Page 436 U. S. 790 "the highly valued goal of diversity" in the mass media, 181 U.S.App.D.C. at 17, 555 F.2d at 954, and was therefore not without a rational basis. The court concluded further that, since the Commission "explained why it considers diversity to be a factor of exceptional importance," and since the Commission's goal of promoting diversification of mass media ownership was strongly supported by First Amendment and antitrust policies, it was not arbitrary for the prospective rules to be "based on [the diversity] factor to the exclusion of others customarily relied on by the Commission." Id. at 13 n. 33, 555 F.2d at 950 n. 33; see id. at 11-12, 555 F.2d at 948-949.The court also held that the prospective rules did not exceed the Commission's authority under the Communications Act. The court reasoned that the public interest standard of the Act permitted, and indeed required, the Commission to consider diversification of mass media ownership in making its licensing decisions, and that the Commission's general rulemaking authority under 47 U.S.C. §§ 303(r) and 154(i) allowed the Commission to adopt reasonable license qualifications implementing the public interest standard. 181 U.S.App.D.C. at 14-15, 555 F.2d at 951-952. The court concluded, moreover, that, since the prospective ban was designed to "increas[e] the number of media voices in the community," and not to restrict or control the content of free speech, the ban would not violate the First Amendment rights of newspaper owners. Id. at 16-17, 555 F.2d at 953-954.After affirming the prospective rules, the Court of Appeals invalidated the limited divestiture requirement as arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (1976 ed.). The court's primary holding was that the Commission lacked a rational basis for "grandfathering" most existing combinations while banning all new combinations. The court reasoned that the Commission's own diversification policy, as Page 436 U. S. 791 reinforced by First Amendment policies and the Commission's statutory obligation to "encourage the larger and more effective use of radio in the public interest," 47 U.S.C. § 303(g), required the Commission to adopt a "presumption" that stations owned by co-located newspapers "do not serve the public interest," 181 U.S.App.D.C. at 25-26, 555 F.2d at 962-963. The court observed that, in the absence of countervailing policies, this "presumption" would have dictated adoption of an across-the-board divestiture requirement, subject only to waiver "in those cases where the evidence clearly discloses that cross-ownership is in the public interest." Id. at 29, 555 F.2d at 966. The countervailing policies relied on by the Commission in its decision were, in the court's view, "lesser policies" which had not been given as much weight in the past as its diversification policy. Id. at 28, 555 F.2d at 965. And "the record [did] not disclose the extent to which divestiture would actually threaten these [other policies]." Ibid. T he court concluded, therefore, that it was irrational for the Commission not to give controlling weight to its diversification policy, and thus to extend the divestiture requirement to all existing combinations. [Footnote 13]The Court of Appeals held further that, even assuming a difference in treatment between new and existing combinations Page 436 U. S. 792 was justifiable, the Commission lacked a rational basis for requiring divestiture in the 16 "egregious" cases while allowing the remainder of the existing combinations to continue in operation. The court suggested that "limiting divestiture to small markets of absolute monopoly' squanders the opportunity where divestiture might do the most good," since "[d]ivestiture . . . may be more useful in the larger markets." Id. at 29, 555 F.2d at 966. The court further observed that the record "[did] not support the conclusion that divestiture would be more harmful in the grandfathered markets than in the 16 affected markets," nor did it demonstrate that the need for divestiture was stronger in those 16 markets. Ibid. On the latter point, the court noted that,"[a]lthough the affected markets contain fewer voices, the amount of diversity in communities with additional independent voices may in fact be no greater."Ibid.The Commission, NAB, ANPA, and several cross-owners who had been intervenors below, and whose licenses had been grandfathered under the Commission's rules but were subject to divestiture under the Court of Appeals' decision, petitioned this Court for review. [Footnote 14] We granted certiorari, 434 U.S. 815 (1977), and we now affirm the judgment of the Court of Appeals insofar as it upholds the prospective ban and reverse the judgment insofar as it vacates the limited divestiture requirement. [Footnote 15] Page 436 U. S. 793IIPetitioners NAB and ANPA contend that the regulation promulgated by the Commission exceed its statutory rulemaking authority and violate the constitutional rights of newspaper owners. We turn first to the statutory, and then to the constitutional, issues.A(1)Section 303(r) of the Communications Act, 47 U.S.C. § 303(r), provides that"the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act]."See also 47 U.S.C. § 154(i). As the Court of Appeals recognized, 181 U.S.App.D.C. at 14, 555 F.2d at 951, it is now well established that this general rulemaking authority supplies a statutory basis for the Commission to issue regulations codifying it view of the public interest licensing standard, so long as that view is based on consideration of permissible factors and is otherwise reasonable. If a license applicant does not qualify under standards set forth in such regulations, and does not proffer sufficient grounds for waiver or change of those standards, the Commission may deny the application without further inquiry. See United States v. Storer Broadcasting Co., Page 436 U. S. 794 351 U. S. 192 (1956); National Broadcasting Co. v. United States, 319 U. S. 190 (1943).This Court has specifically upheld this rulemaking authority in the context of regulations based on the Commission's policy of promoting diversification of ownership. In United States v. Storer Broadcasting Co., supra, we sustained the portion of the Commission's multiple ownership rules placing limitations on the total number of stations in each broadcast service a person may own or control. See n 2, supra. And in National Broadcasting Co. v. United States, supra, we affirmed regulations that, inter alia, prohibited broadcast networks from owning more than one AM radio station in the same community, and from owning"'any standard broadcast station in any locality where the existing standard broadcast stations are so few or of such unequal desirability . . . that competition would be substantially restrained by such licensing.'"See 319 U.S. at 319 U. S. 206-208; n 1, supra.Petitioner NAB attempts to distinguish these cases on the ground that they involved efforts to increase diversification within the boundaries of the broadcasting industry itself, whereas the instant regulations are concerned with diversification of ownership in the mass communications media as a whole. NAB contends that, since the Act confers jurisdiction on the Commission only to regulate "communication by wire or radio," 47 U.S.C. § 152(a), it is impermissible for the Commission to use its licensing authority with respect to broadcasting to promote diversity in an overall communications market which includes, but is not limited to, the broadcasting industry.This argument undersells the Commission's power to regulate broadcasting in the "public interest." In making initial licensing decisions between competing applicants, the Commission has long given "primary significance" to "diversification of control of the media of mass communications," and has denied licenses to newspaper owners on the basis of this policy Page 436 U. S. 795 in appropriate cases. See supra at 436 U. S. 781, and n. 4. As we have discussed on several occasions, see, e.g., National Broadcasting Co. v. United States, supra at 319 U. S. 210-218; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 375-377, 395 U. S. 387-388 (1969), the physical scarcity of broadcast frequencies, as well as problems of interference between broadcast signals, led Congress to delegate broad authority to the Commission to allocate broadcast licenses in the "public interest." And "[t]he avowed aim of the Communications Act of 1934 was to secure the maximum benefits of radio to all the people of the United States." National Broadcasting Co. v. United States, supra at 319 U. S. 217. It was not inconsistent with the statutory scheme, therefore, for the Commission to conclude that the maximum benefit to the "public interest" would follow from allocation of broadcast licenses so as to promote diversification of the mass media as a whole.Our past decisions have recognized, moreover, that the First Amendment and antitrust values underlying the Commission's diversification policy may properly be considered by the Commission in determining where the public interest lies. "[T]he public interest' standard necessarily invites reference to First Amendment principles," Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 122 (1973), and, in particular, to the First Amendment goal of achieving "the widest possible dissemination of information from diverse and antagonistic sources," Associated Press v. United States, 326 U.S. at 326 U. S. 20. See Red Lion Broadcasting Co. v. FCC, supra at 395 U. S. 385, 395 U. S. 390. See also United States v. Midwest Video Corp., 406 U. S. 649, 406 U. S. 667-669, and n. 27 (1972) (plurality opinion). And, while the Commission does not have power to enforce the antitrust laws as such, it is permitted to take antitrust policies into account in making licensing decisions pursuant to the public interest standard. See, e.g., United States v. Radio Corp. of America, 358 U. S. 334, Page 436 U. S. 796 351 (1959); National Broadcasting Co. v. United States, supra at 319 U. S. 222-224. Indeed we have noted, albeit in dictum:"[I]n a given case, the Commission might find that antitrust considerations alone would keep the statutory standard from being met, as when the publisher of the sole newspaper in an area applies for a license for the only available radio and television facilities, which, if granted, would give him a monopoly of that area's major media of mass communication."United States v. Radio Corp. of America, supra at 358 U. S. 351-352.(2)It is thus clear that the regulations at issue are based on permissible public interest goals and, so long as the regulations are not an unreasonable means for seeking to achieve these goals, they fall within the general rulemaking authority recognized in the Storer Broadcasting and National Broadcasting cases. Petitioner ANPA contends that the prospective rules are unreasonable in two respects: [Footnote 16] first, the rulemaking record did not conclusively establish that prohibiting common ownership of co-located newspapers and broadcast stations would, in fact, lead to increases in the diversity of viewpoints among local communications media; and second, the regulations were based on the diversification factor to the exclusion of other service factors considered in the past by the Commission in making initial licensing decisions regarding newspaper owners, see supra at 436 U. S. 782. With respect to the first point, we agree with the Court of Appeals that, notwithstanding the inconclusiveness of the rulemaking record, the Commission acted rationally in finding that diversification of ownership would enhance the possibility of achieving greater diversity of viewpoints. As the Court of Appeals observed,"[d]iversity and its effects are . . . elusive concepts, not easily defined, let Page 436 U. S. 797 alone measured without making qualitative judgments objectionable on both policy and First Amendment grounds."181 U.S.App.D.C. at 24, 555 F.2d at 961. Moreover, evidence of specific abuses by common owners is difficult to compile; "the possible benefits of competition do not lend themselves to detailed forecast." FCC v. RCA Communications, Inc., 346 U. S. 86, 346 U. S. 96 (1053). In these circumstances, the Commission was entitled to rely on its judgment, based on experience, that"it is unrealistic to expect true diversity from a commonly owned station-newspaper combination. The divergency of their viewpoints cannot be expected to be the same as if they were antagonistically run."Order at 1079-1080; see 181 U.S.App.D.C. at 25, 555 F.2d at 962.As to the Commission's decision to give controlling weight to its diversification goal in shaping the prospective rules, the Order makes clear that this change in policy was a reasonable administrative response to changed circumstances in the broadcasting industry. Order at 1074-1075; see FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 137-138 (1940). The Order explained that, although newspaper owners had previously been allowed, and even encouraged, to acquire licenses for co-located broadcast stations because of the shortage of qualified license applicants, a sufficient number of qualified and experienced applicants other than newspaper owners was now available. In addition, the number of channels open for new licensing had diminished substantially. It had thus become both feasible and more urgent for the Commission to take steps to increase diversification of ownership, and a change in the Commission's policy toward new licensing offered the possibility of increasing diversity without causing any disruption of existing service. In light of these considerations, the Commission clearly did not take an irrational view of the public interest when it decided to impose a prospective ban on new licensing of co-located newspaper-broadcast combinations. [Footnote 17] Page 436 U. S. 798BPetitioners NAB and ANPA also argue that the regulations, though designed to further the First Amendment goal of Page 436 U. S. 799 achieving "the widest possible dissemination of information from diverse and antagonistic sources," Associated Press v. United States, 326 U.S. at 326 U. S. 20, nevertheless violate the First Amendment rights of newspaper owners. We cannot agree, for this argument ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 388.The physical limitations of the broadcast spectrum are well known. Because of problems of interference between broadcast signals, a finite number of frequencies can be used productively; this number is far exceeded by the number of persons wishing to broadcast to the public. In light of this physical scarcity, Government allocation and regulation of broadcast frequencies are essential, as we have often recognized. Id. at 395 U. S. 375-377, 395 U. S. 387-388; National Broadcasting Co. v. United States, 319 U.S. at 319 U. S. 210-218; Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 289 U. S. 282 (1933); see supra at 436 U. S. 795. No one here questions the need for such allocation and regulation, and, given that need, we see nothing in the First Amendment to prevent the Commission from allocating licenses so as to promote the "public interest" in diversification of the mass communications media.NAB and ANPA contend, however, that it is inconsistent with the First Amendment to promote diversification by barring a newspaper owner from owning certain broadcasting stations. In support, they point to our statement in Buckley v. Valeo, 424 U. S. 1 (1976), to the effect that "government may [not] restrict the speech of some elements of our society in order to enhance the relative voice of others," id. at 424 U. S. 449. As Buckley also recognized, however, "the broadcast media pose unique and special problems not present in the traditional free speech case." Id. at 424 U. S. 50 n. 55, quoting Columbia Broadcasting System v. Democratic National Committee, 412 U.S. Page 436 U. S. 800 at 412 U. S. 101. Thus, efforts to "`enhanc[e] the volume and quality of coverage' of public issues" through regulation of broadcasting may be permissible where similar efforts to regulate the print media would not be. 424 U.S. at 424 U. S. 551, and n. 55, quoting Red Lion Broadcasting Co. v. FCC, supra at 395 U. S. 393; cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Requiring those who wish to obtain a broadcast license to demonstrate that such would serve the "public interest" does not restrict the speech of those who are denied licenses; rather, it preserves the interests of the "people as a whole . . . in free speech." Red Lion Broadcasting Co., supra at 395 U. S. 390. As we stated in Red Lion, "to deny a station license because `the public interest' requires it `is not a denial of free speech.'" 395 U.S. at 395 U. S. 389, quoting National Broadcasting Co. v. United States, supra at 319 U. S. 227. See also Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., supra.Relying on cases such as Speiser v. Randall, 357 U. S. 513 (1958), and Elrod v. Burns, 427 U. S. 347 (1976), NAB and ANPA also argue that the regulations unconstitutionally condition receipt of a broadcast license upon forfeiture of the right to publish a newspaper. Under the regulations, however, a newspaper owner need not forfeit anything in order to acquire a license for a station located in another community. [Footnote 18] More importantly, in the cases relied on by those petitioners, unlike the instant case, denial of a benefit had the effect of Page 436 U. S. 801 abridging freedom of expression, since the denial was based solely on the content of constitutionally protected speech; in Speiser, veterans were deprived of a special property tax exemption if they declined to subscribe to a loyalty oath, while in Elrod, certain public employees were discharged or threatened with discharge because of their political affiliation. As we wrote in National Broadcasting, supra, "the issue before us would be wholly different" if "the Commission [were] to choose among applicants upon the basis of their political, economic or social views." 319 U.S. at 319 U. S. 226. Here, the regulations are not content related; moreover, their purpose and effect is to promote free speech, not to restrict it.Finally, NAB and ANPA argue that the Commission has unfairly "singled out" newspaper owners for more stringent treatment than other license applicants. [Footnote 19] But the regulations treat newspaper owners in essentially the same fashion as other owners of the major media of mass communications were already treated under the Commission's multiple ownership rules, see supra at 436 U. S. 780-781, and nn. 1-3; owners of radio stations, television stations, and newspapers alike are now restricted in their ability to acquire licenses for co-located broadcast stations. Grosjean v. American Press Co., 297 U. S. 233 (1936), in which this Court struck down a state tax imposed only on newspapers, is thus distinguishable in the degree to which newspapers were singled out for special treatment. In addition, the effect of the tax in Grosjean was "to limit the circulation of information to which the public is entitled," id. at 297 U. S. 250, an effect inconsistent with the protection conferred on the press by the First Amendment.In the instant case, far from seeking to limit the flow of information, the Commission has acted, in the Court of Appeals' words, "to enhance the diversity of information heard by the public without ongoing government surveillance of the Page 436 U. S. 802 content of speech." 181 U.S.App.D.C. at 17, 555 F.2d at 954. The regulations are a reasonable means of promoting the public interest in diversified mass communications; thus, they do not violate the First Amendment rights of those who will be denied broadcast licenses pursuant to them. [Footnote 20] Being forced to "choose among applicants for the same facilities," the Commission has chosen on a "sensible basis," one designed to further, rather than contravene, "the system of freedom of expression." T. Emerson, The System of Freedom of Expression 663 (1970).IIIAfter upholding the prospective aspect of the Commission's regulations, the Court of Appeals concluded that the Commission's decision to limit divestiture to 16 "egregious cases" of "effective monopoly" was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U.S.C. § 706(2)(A) (1976 ed.). [Footnote 21] We agree with the Court of Appeals that regulations Page 436 U. S. 803 promulgated after informal rulemaking, while not subject to review under the "substantial evidence" test of the APA, 5 U.S.C. § 706(2)(E) (1976 ed.) quoted in n 21, supra, may be invalidated by a reviewing court under the "arbitrary or capricious" standard if they are not rational and based on consideration of the relevant factors. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 401 U. S. 413-416 (1971). Although this review "is to be searching and careful," "[t]he court is not empowered to substitute its judgment for that of the agency." Id. at 413 U. S. 416.In the view of the Court of Appeals, the Commission lacked a rational basis, first, for treating existing newspaper-broadcast combinations more leniently than combinations that might seek licenses in the future; and, second, even assuming a distinction between existing and new combinations had been justified, for requiring divestiture in the "egregious cases" while allowing all other existing combinations to continue in operation. We believe that the limited divestiture requirement reflects a rational weighing of competing policies, and we therefore reinstate the portion of the Commission's order that was invalidated by the Court of Appeals.A(1)The Commission was well aware that separating existing newspaper-broadcast combinations would promote diversification of ownership. It concluded, however, that ordering widespread Page 436 U. S. 804 divestiture would not result in "the best practicable service to the American public," Order at 1074, a goal that the Commission has always taken into account and that has been specifically approved by this Court, FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 309 U. S. 475 (1940); see supra at 436 U. S. 782. In particular, the Commission expressed concern that divestiture would cause "disruption for the industry" and "hardship for individual owners," both of which would result in harm to the public interest. Order at 1078. Especially in light of the fact that the number of co-located newspaper-broadcast combinations was already on the decline as a result of natural market forces, and would decline further as a result of the prospective rules, the Commission decided that across-the-board divestiture was not warranted. See id. at 1080 n. 29.The Order identified several specific respects in which the public interest would or might be harmed if a sweeping divestiture requirement were imposed: the stability and continuity of meritorious service provided by the newspaper owners as a group would be lost; owners who had provided meritorious service would unfairly be denied the opportunity to continue in operation; "economic dislocations" might prevent new owners from obtaining sufficient working capital to maintain the quality of local programming; [Footnote 22] and local ownership of broadcast stations would probably decrease. [Footnote 23] Id. at 1078. Page 436 U. S. 805 We cannot say that the Commission acted irrationally in concluding that these public interest harms outweighed the potential gains that would follow from increasing diversification of ownership.In the past, the Commission has consistently acted on the theory that preserving continuity of meritorious service furthers the public interest, both in its direct consequence of bringing proved broadcast service to the public, and in its indirect consequence of rewarding -- and avoiding losses to licensees who have invested the money and effort necessary to produce quality performance. [Footnote 24] Thus, although a broadcast license must be renewed every three years, and the licensee must satisfy the Commission that renewal will serve the public interest, both the Commission and the courts have recognized that a licensee who has given meritorious service has a "legitimate renewal expectanc[y]" that is "implicit in the structure of the Act," and should not be destroyed absent good cause. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 396, 444 F.2d 841, 854 (1970), cert. denied, 403 U.S. 923 (1971); see Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 44, and n. 35, 447 F.2d 1201, 1213, and n. 35 (1971); In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming From the Comparative Hearing Process, 66 F.C.C.2d 419, 420 Page 436 U. S. 806 (1977); n 5, supra. [Footnote 25] Accordingly, while diversification of ownership is a relevant factor in the context of license renewal as well as initial licensing, the Commission has long considered the past performance of the incumbent as the most important factor in deciding whether to grant license renewal, and thereby to allow the existing owner to continue in operation. Even where an incumbent is challenged by a competing applicant who offers greater potential in terms of diversification, the Commission's general practice has been to go with the "proved product" and grant renewal if the incumbent has rendered meritorious service. See generally In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming from the Comparative Hearing Process, supra; n 5, supra.In the instant proceeding, the Commission specifically noted that the existing newspaper-broadcast cross-owners as a group had a "long record of service" in the public interest; many were pioneers in the broadcasting industry and had established and continued "[t]raditions of service" from the outset. Order at 1078. [Footnote 26] Notwithstanding the Commission's diversification policy, all were granted initial licenses upon findings that the public interest would be served thereby, and those that had been in existence for more than three years had also had their Page 436 U. S. 807 licenses renewed on the ground that the public interest would be furthered. The Commission noted, moreover, that its own study of existing co-located newspaper-television combinations showed that, in terms of percentage of time devoted to several categories of local programming, these stations had displayed "an undramatic but nonetheless statistically significant superiority" over other television stations. Id. at 1078 n. 26. [Footnote 27] An across-the-board divestiture requirement would result in loss of the services of these superior licensees, and -- whether divestiture caused actual losses to existing owners, or just denial of reasonably anticipated gains -- the result would be that future licensees would be discouraged from investing the resources necessary to produce quality service.At the same time, there was no guarantee that the licensees who replaced the existing cross-owners would be able to provide the same level of service or demonstrate the same long-term commitment to broadcasting. And even if the new owners were able in the long run to provide similar or better service, the Commission found that divestiture would cause serious disruption in the transition period. Thus, the Commission observed that new owners "would lack the long knowledge of the community, and would have to begin raw," and -- because of high interest rates -- might not be able to obtain sufficient working capital to maintain the quality of local programming. Id. at 1078; see n. 22 supra. [Footnote 28] Page 436 U. S. 808The Commission's fear that local ownership would decline was grounded in a rational prediction, based on its knowledge of the broadcasting industry and supported by comments in the record, see Order at 1068-1069, that many of the existing newspaper-broadcast combinations owned by local interests would respond to the divestiture requirement by trading stations with out-of-town owners. It is undisputed that roughly 75 of the existing co-located newspaper-television combinations are locally owned, see 181 U.S.App.D.C. at 26-27, 555 F.2d at 963-964, and these owners' knowledge of their local communities and concern for local affairs, built over a period of years, would be lost if they were replaced with outside interests. Local ownership, in and of itself, has been recognized to be a factor of some -- if relatively slight -- significance even in the context of initial licensing decisions. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d at 396. It was not unreasonable, therefore, for the Commission to consider it as one of several factors militating against divestiture of combinations that have been in existence for many years. [Footnote 29] Page 436 U. S. 809In light of these countervailing considerations, we cannot agree with the Court of Appeals that it was arbitrary and capricious for the Commission to "grandfather" most existing combinations, and to leave opponents of these combinations to their remedies in individual renewal proceedings. In the latter connection, we note that, while individual renewal proceedings are unlikely to accomplish any "overall restructuring" of the existing ownership patterns, the Order does make clear that existing combinations will be subject to challenge by competing applicants in renewal proceedings, to the same extent as they were prior to the instant rulemaking proceedings. Order at 1087-1088 (emphasis omitted); see n 12, supra. That is, diversification of ownership will be a relevant but somewhat secondary factor. And, even in the absence of a competing applicant, license renewal may be denied if, inter alia, a challenger can show that a common owner has engaged in specific economic or programming abuses. See nn. 12 and | 12 and S. 775fn13|>13, supra.(2)In concluding that the Commission acted unreasonably in not extending its divestiture requirement across the board, the Court of Appeals apparently placed heavy reliance on a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." See supra at 436 U. S. 790-791. The court derived this presumption primarily from the Commission's own diversification policy, as "reaffirmed" by adoption of the prospective rules in this proceeding, and secondarily from " [t]he policies of the First Amendment," 181 U.S.App.D.C. at 26, 555 F.2d at 963, and the Commission's statutory duty to "encourage the larger and more effective use of radio in the public interest," 47 U.S.C. § 303(g). As explained Page 436 U. S. 810 in 436 U. S. we agree that diversification of ownership furthers statutory and constitutional policies, and, as the Commission recognized, separating existing newspaper-broadcast combinations would promote diversification. But the weighing of policies under the "public interest" standard is a task that Congress has delegated to the Commission in the first instance, and we are unable to find anything in the Communications Act, the First Amendment, or the Commission's past or present practices that would require the Commission to "presume" that its diversification policy should be given controlling weight in all circumstances. [Footnote 30]Such a "presumption" would seem to be inconsistent with the Commission's longstanding and judicially approved practice of giving controlling weight in some circumstances to its more general goal of achieving "the best practicable service to the public." Certainly, as discussed in 436 U. S. the Commission, through its license renewal policy, has made clear that it considers diversification of ownership to be a factor of less significance when deciding whether to allow an existing licensee to continue in operation than when evaluating applicants seeking initial licensing. Nothing in the language or the legislative history of § 303(g) indicates that Congress intended to foreclose all differences in treatment between new and existing licensees, and indeed, in amending § 307(d) of the Act in 1952, Congress appears to have lent its approval to the Commission's policy of evaluating existing licensees on a Page 436 U. S. 811 somewhat different basis from new applicants. [Footnote 31] Moreover, if enactment of the prospective rules in this proceeding itself were deemed to create a "presumption" in favor of divestiture, the Commission's ability to experiment with new policies would be severely hampered. One of the most significant advantages of the administrative process is its ability to adapt to new circumstances in a flexible manner, see FCC v. Pottsville Broadcasting Co., 309 U.S. at 309 U. S. 137-138, and we are unwilling to presume that the Commission acts unreasonably when it decides to try out a change in licensing policy primarily on a prospective basis.The Court of Appeals also relied on its perception that the policies militating against divestiture were "lesser policies" to which the Commission had not given as much weight in the past as its diversification policy. See supra at 436 U. S. 791. This perception is subject to much the same criticism as the "presumption" that existing co-located newspaper-broadcasting combinations do not serve the public interest. The Commission's past concern with avoiding disruption of existing service is amply illustrated by its license renewal policies. In addition, it is worth noting that in the past when the Commission has Page 436 U. S. 812 changed its multiple-ownership rules it has almost invariably tailored the changes so as to operate wholly or primarily on a prospective basis. For example, the regulations adopted in 1970 prohibiting common ownership of a VHF television station and a radio station serving the same market were made to apply only to new licensing decisions; no divestiture of existing combinations was required. See n 3, supra. The limits set in 1953 on the total numbers of stations a person could own, upheld by this Court in United States v. Storer Broadcasting Co., 351 U. S. 192 (1956), were intentionally set at levels that would not require extensive divestiture of existing combinations. See Multiple Ownership of AM, FM and Television Broadcast Stations, 18 F.C.C. at 292. And, while the rules adopted in the early 1940's prohibiting ownership or control of more than one station in the same broadcast service in the same community required divestiture of approximately 20 AM radio combinations, FCC Eleventh Annual Report 12 (1946), the Commission afforded an opportunity for case-by-case review, see Multiple Ownership of Standard Broadcast Stations, 8 Fed.Reg. 16065 (1943). Moreover, television and FM radio had not yet developed, so that application of the rules to these media was wholly prospective. See Rules and Regulations Governing Commercial Television Broadcast Stations, supra, n l; Rules Governing Standard and High Frequency Broadcast Stations, supra, n 1.The Court of Appeals apparently reasoned that the Commission's concerns with respect to disruption of existing service, economic dislocations, and decreases in local ownership necessarily could not be very weighty since the Commission has a practice of routinely approving voluntary transfers and assignments of licenses. See 181 U.S.App.D.C. at 26-28, 555 F.2d. at 963-965. But the question of whether the Commission should compel proved licensees to divest their stations is a different question from whether the public interest is served Page 436 U. S. 813 by allowing transfers by licensees who no longer wish to continue in the business. As the Commission's brief explains:"[I]f the Commission were to force broadcasters to stay in business against their will, the service provided under such circumstances, albeit continuous, might well not be worth preserving. Thus, the fact that the Commission approves assignments and transfers in no way undermines its decision to place a premium on the continuation of proven past service by those licensees who wish to remain in business."Brief for Petitioner in No. 76-1471, p. 38 (footnote omitted). [Footnote 32]The Court of Appeals' final basis for concluding that the Commission acted arbitrarily in not giving controlling weight to its divestiture policy was the Court's finding that the rulemaking record did not adequately "disclose the extent to which divestiture would actually threaten" the competing policies relied upon by the Commission. 181 U.S.App.D.C. at 28, 555 F.2d at 965. However, to the extent that factual determinations were involved in the Commission's decision to "grandfather" most existing combinations, they were primarily of a judgmental or predictive nature -- e.g., whether a divestiture requirement would result in trading of stations with out-of-town owners; whether new owners would perform as well as existing cross-owners, either in the short run or in the long run; whether losses to existing owners would result from forced sales; whether such losses would discourage future investment in quality programming; and whether new owners would have sufficient working capital to finance local programming. Page 436 U. S. 814 In such circumstances complete factual support in the record for the Commission's judgment or prediction is not possible or required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 365 U. S. 29 (1961); see Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338-339, 499 F.2d 467, 474-475 (1974).BWe also must conclude that the Court of Appeals erred in holding that it was arbitrary to order divestiture in the 16 "egregious cases" while allowing other existing combinations to continue in operation. The Commission's decision was based not -- as the Court of Appeals may have believed, see supra at 436 U. S. 792 -- on a conclusion that divestiture would be more harmful in the "grandfathered" markets than in the 16 affected markets, but rather on a judgment that the need for diversification was especially great in cases of local monopoly. This policy judgment was certainly not irrational, see United States v. Radio Corp. of America, 358 U.S. at 358 U. S. 351-352, and indeed was founded on the very same assumption that underpinned the diversification policy itself and the prospective rules upheld by the Court of Appeals and now by this Court -- that the greater the number of owners in a market, the greater the possibility of achieving diversity of program and service viewpoints.As to the Commission's criteria for determining which existing newspaper-broadcast combinations have an "effective monopoly" in the "local marketplace of ideas as well as economically," we think the standards settled upon by the Commission reflect a rational legislative-type judgment. Some line had to be drawn, and it was hardly unreasonable for the Commission to confine divestiture to communities in which there is common ownership of the only daily newspaper and Page 436 U. S. 815 either the only television station or the only broadcast station of any kind encompassing the entire community with a clear signal. Cf. United States v. Radio Corp. of America, supra at 358 U. S. 351-352, quoted supra at 436 U. S. 796. It was not irrational, moreover, for the Commission to disregard media sources other than newspapers and broadcast stations in setting its divestiture standards. The studies cited by the Commission in its notice of rulemaking unanimously concluded that newspapers and television are the two most widely utilized media sources for local news and discussion of public affairs; and, as the Commission noted in its Order at 1081,"aside from the fact that [magazines and other periodicals] often had only a tiny fraction in the market, they were not given real weight since they often dealt exclusively with regional or national issues and ignored local issues."Moreover, the differences in treatment between radio and television stations, see n 10, supra, were certainly justified in light of the far greater influence of television than radio as a source for local news. See Order at 1083.The judgment of the Court of Appeals is affirmed in part and reversed in part.It is so ordered

U.S. Supreme CourtFCC v. National Citizens Committee, 436 U.S. 775 (1978)Federal Communications Commission v.National Citizens Committee for BroadcastingNo. 76-1471Argued January 16, 1978Decided June 12, 1978*436 U.S. 775CERTIORARI TO THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUITSyllabusAfter a lengthy rulemaking proceeding, the Federal Communications Commission (FCC) adopted regulations prospectively barring the initial licensing or the transfer of newspaper-broadcast combinations where there is common ownership of a radio or television broadcast station and a daily newspaper located in the same community ("co-located" combinations). Divestiture of existing co-located combinations was not required except in 16 "egregious cases," where the combination involves the sole daily newspaper published in a community and either the sole broadcast station or the sole television station providing that entire community with a clear signal. Absent waiver, divestiture must be accomplished in those 16 cases by January 1, 1980. On petitions for review of the regulations, the Court of Appeals affirmed the FCC's prospective ban, but ordered adoption of regulations requiring dissolution of all existing combinations that did not qualify for waivers. The court held that the limited divestiture requirement was arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act.Held: The challenged regulations are valid in their entirety. Pp. 436 U. S. 793-815.

1966_101

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question presented by this case is whether the Court of Appeals exceeded its authority as a reviewing court by postponing the operation of a Federal Trade Commission cease and desist order against respondent until an investigation should be made of alleged industry-wide violations of the price discrimination provisions of the Clayton Act, § 2, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. § 13.Respondent Universal-Rundle produces a full line of china and cast-iron plumbing fixtures which it sells to customers located throughout the United States. In 1960, the Federal Trade Commission issued a complaint charging that, for more than three years, Universal-Rundle's sales to some of these customers had been made"at substantially higher prices than the prices at which respondent sells such products of like grade and quality to other purchasers, some of whom are engaged in competition with the less favored purchasers in the resale of such products."The effect of the discriminations, the complaint alleged, "may be substantially to lessen competition" in violation of § 2(a) of the Clayton Act, as amended. In its answer, Universal-Rundle denied the essential allegations of the complaint, and, in addition, asserted as affirmative defenses that such price differentials as may have existed were cost-justified or were made "in good faith to meet competition."After evidentiary hearings, in which Universal-Rundle made no effort to sustain its affirmative defenses, the Commission found that, during 1957, Universal-Rundle had offered "truckload discounts" averaging approximately 10% to all of its customers. Because some of these customers could not afford to purchase in truckload quantities, and thus were unable to avail themselves Page 387 U. S. 246 of the discounts, the Commission held that the offering of the truckload discounts constituted price discrimination within the meaning of § 2(a) of the Clayton Act, as amended. Since some Universal-Rundle customers who were able to purchase in truckload quantities were found to be in competition with customers unable to take advantage of the discounts, the Commission concluded that Universal-Rundle's price discrimination had the anticompetitive effect proscribed by § 2(a). [Footnote 1] Accordingly, it ordered Universal-Rundle to refrain from:"Discriminating in price by selling 'Universal-Rundle' brand or Universal-Rundle manufactured plumbing fixtures . . . of like grade and quality to any purchaser at prices higher than those granted any other purchaser, where such other purchaser competes, in fact, with the unfavored purchaser in the resale or distribution of such products."At no time during the four years in which the complaint was pending did Universal-Rundle offer the Commission any information as to its competitors' pricing practices or suggest that industry-wide proceedings might be appropriate. But, one month after the issuance of the cease and desist order, Universal-Rundle petitioned the Commission to stay its cease and desist order for a time sufficient"to investigate and institute whatever proceedings are deemed appropriate by the Commission to correct the industry-wide practice by plumbing fixture manufacturers of granting discounts in prices on truckload shipments."In support of its petition, Universal-Rundle submitted affidavits and documents tending to show: (1) that its principal competitors were offering truckload discounts averaging approximately 18%; (2) that Page 387 U. S. 247 Universal-Rundle's share of the plumbing fixture market, exclusive of its sales to Sears, Roebuck and Co., was 5.75%, whereas the five leading plumbing manufacturing concerns enjoyed market shares of 6% to 32%; [Footnote 2] and (3) that each of these five competitors had reported profits within the preceding two years, whereas Universal-Rundle had sustained substantial losses during each of the preceding three years. In addition, Universal-Rundle submitted an affidavit in which its marketing vice-president declared on information and belief that some of Universal-Rundle's competitors were selling to customers who "may not purchase in truckload quantities." The vice-president further averred:"That, based upon his knowledge of the competitive conditions in this industry, if respondent is not permitted to sell plumbing fixtures with a differential in price as are its competitors on truckload and less than truckload quantities, respondent's sales of plumbing fixtures under the 'U/R' brand will be substantially decreased and lost to its competitors, who continue to offer substantial discounts on truckload shipments. And he is of the further belief [that] the Company may suffer further substantial financial losses if it must be the sole plumbing fixture manufacturer under an order to cease and desist. "Page 387 U. S. 248In a unanimous decision denying the petition for the stay, the Commission held that a general allegation that competitors were offering truckload discounts was not a sufficient basis for instituting industry-wide proceedings or for withholding enforcement of the cease and desist order. Noting that respondent's petition appeared to be premised on the contention that truckload discounts had been held to be per se illegal, the Commission wrote,"There is nothing in our decision to support this contention, . . . nor does the order to cease and desist entered against respondent absolutely prohibit it from granting truckload discounts."While the granting of such discounts may result in price discriminations having proscribed anticompetitive effects, "the practice is not necessarily illegal as indicated in respondent's petition." In each case, it must be determined:"whether the discount creates a price difference, whether the recipient of such a discount is competing at the same functional level with a customer paying a higher price, whether the customer buying in less than truckload quantities is able to avail itself of the truckload discount, and whether the differential is sufficient in the competitive conditions shown to exist to have the requisite anticompetitive effects. [Footnote 3]""Moreover," the Commission wrote"the fact that respondent may have incurred losses prior to the issuance of the order does not support the contention that enforcement of the order will cause it financial hardship. [Footnote 4] "Page 387 U. S. 249Following denial of its petition for a stay, Universal-Rundle instituted review proceedings in the Court of Appeals for the Seventh Circuit. Without reaching the merits of the petition to set aside the cease and desist order, the court below set aside the Commission's order denying the stay and remanded the cause with instructions that the Commission conduct an industry investigation. 352 F.2d 831 (1965). The court conceded that, under Moog Industries v. Federal Trade Commission, 355 U. S. 411 (1958), the Federal Trade Commission's discretionary determination to refuse to stay a cease and desist order "should not be overturned in the absence of a patent abuse of discretion." 355 U.S. at 355 U. S. 414. But it considered that Universal-Rundle's evidentiary offering was sufficient to demonstrate that the refusal to grant the requested stay constituted a patent abuse of discretion. The premises upon which the court below based its conclusion may be briefly restated: (1) "[i]t is apparent," the court wrote with reference to the evidentiary offering, "that the Commission has directed its attack against a general practice which is prevalent in the industry"; (2) enforcement would lead to the "sacrifice" of one of the "smallest participants" in the industry; and, consequently, (3) approval of the enforcement sanctions would be contrary to the purposes of the Clayton Act, since "the giants in the field would be the real benefactors -- not the public."In Moog Industries v. Federal Trade Commission, supra, we set forth the principles which must govern our review of the action taken by the court below: the decision as to whether to postpone enforcement of a cease and desist order "depends on a variety of factors peculiarly within the expert understanding of the Commission." 355 U.S. at 355 U. S. 413. Thus, "although an allegedly Page 387 U. S. 250 illegal practice may appear to be operative throughout an industry, whether such appearances reflect fact" is a question "that call[s] for discretionary determination by the administrative agency." Ibid. Because these determinations require the specialized experienced judgment of the Commission, they cannot be overturned by the courts "in the absence of a patent abuse of discretion." 355 U.S. at 355 U. S. 414. Consequently, the reviewing court's inquiry is not whether the evidence adduced in support of a petition for a stay tends to establish certain facts, such as that the industry is engaged in allegedly illegal price discrimination practices; rather, the court's review must be limited to determining whether the Commission's evaluation of the merit of the petition for a stay was patently arbitrary and capricious.Viewed in the light of these principles, the decision below must be reversed. The evidence which Universal-Rundle offered in its petition for a stay is so inconclusive that it cannot be said that the Commission's evaluation of the evidence, and its consequent refusal to grant the stay, constituted a patent abuse of discretion. Indeed, Universal-Rundle's evidence does not even support the improper de novo findings which formed the basis for the Court of Appeals' decision. Universal-Rundle's truckload discounts were held to be illegal only because the corporation sold fixtures to one group of customers who were unable to purchase in truckload quantities while simultaneously selling fixtures at a discount to another group of customers who were in competition with the nonfavored group. Since the evidence presented in the petition for a stay did not tend to show that the discounts offered by Universal-Rundle's competitors had such an anticompetitive effect, there was no basis for a conclusion that the practice held illegal by the Commission was prevalent throughout the plumbing Page 387 U. S. 251 industry. Similarly, the unsupported speculation of Universal-Rundle's vice-president as to the pecuniary effect of enforcement of the cease and desist order does not provide a sufficient basis for a finding that Universal-Rundle would be "sacrificed" or even that it would suffer substantial financial injury. It follows that Universal-Rundle has failed to demonstrate that enforcement would be contrary to the purposes of the Clayton Act.We note that, even if a petitioner succeeded in demonstrating to the Commission that all of its competitors were engaged in illegal price discrimination practices identical to its own, and that enforcement of a cease and desist order might cause it substantial financial injury, the Commission would not necessarily be obliged to withhold enforcement of the order. As we stated in Moog Industries, 355 U.S. at 355 U. S. 413:"It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically."On the other hand, as the Moog Industries case also indicates, the Federal Trade Commission does not have unbridled power to institute proceedings which will arbitrarily destroy one of many law violators in an industry. This is not such a case. The Commission's refusal to withhold enforcement of the cease and desist order against respondent was based upon a reasonable evaluation of the merits of the petition for a stay; thus it was Page 387 U. S. 252 not within the scope of the reviewing authority of the court below to overthrow the Commission's determination. Consequently, we reverse the judgment below, set aside the stay, and remand the cause for further proceedings consistent with this opinion. [Footnote 5]It is so ordered

U.S. Supreme CourtFTC v. Universal-Rundle Corp., 387 U.S. 244 (1967)Federal Trade Commission v. Universal-Rundle Corp.No. 101Argued March 13, 1967Decided May 29, 1967387 U.S. 244SyllabusAfter hearings on a complaint charging respondent with violations of the price discrimination provisions of the Clayton Act, § 2(a) as amended, the Federal Trade Commission (FTC) found that the 10% truckload discounts offered by respondent on its line of plumbing fixtures had a proscribed anticompetitive effect, since some customers who were unable to purchase in truckload quantities were in competition with customers able to take advantage of the discount. Accordingly, the Commission issued a cease and desist order prohibiting respondent from discriminating in price between competing customers. Thereafter, respondent petitioned the Commission for a stay of the order pending investigation of alleged industry-wide discount practices, claiming that enforcement against it alone would cause it substantial financial injury. The FTC denied the petition. On petition for review, the Court of Appeals set aside the denial and remanded the cause for the industry investigation sought by respondent.Held: Since the Commission's refusal to withhold enforcement of the cease and desist order did not constitute a patent abuse of discretion, the Court of Appeals exceeded its authority by setting aside the Commission's denial of the petition for a stay. Moog Industries v. Federal Trade Commission, 355 U. S. 411 (1958), followed. Pp. 387 U. S. 249-252.352 F. & 831, reversed and remanded. Page 387 U. S. 245

1978_77-920

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case, as it comes to us, presents two federal income tax issues. One has to do with inventory accounting. The other relates to a bad debt reserve.The Inventory Issue. In 1964, petitioner Thor Power Tool Co. (hereinafter sometimes referred to as the taxpayer), in accord with "generally accepted accounting principles," wrote down what it regarded as excess inventory to Thor's own estimate of the net realizable value of the excess goods. Despite this write-down, Thor continued to hold the goods for sale at original prices. It offset the write-down against 1964 sales, and thereby produced a net operating loss for that year; it then asserted that loss as a carryback to 1963 under § 172 of the Internal Revenue Code of 1954, 26 U.S.C. § 172. The Commissioner of Internal Revenue, maintaining that the write-down did not serve to reflect income clearly for tax purposes, disallowed the offset and the carryback.The Bad-Debt Issue. In 1965, the taxpayer added to its reserve for bad debts and asserted as a deduction, under § 166(c) of the Code, 26 U.S.C. § 166(c), a sum that presupposed a substantially higher charge-off rate than Thor had experienced in immediately preceding years. The Commissioner ruled that the addition was excessive, and determined, pursuant to a formula based on the taxpayer's past experience, Page 439 U. S. 525 what he regarded as a lesser but "reasonable" amount to be added to Thor's reserve.On the taxpayer's petition for redetermination, the Tax Court, in an unreviewed decision by Judge Goffe, upheld the Commissioner's exercise of discretion in both respects. 64 T.C. 154 (1975). As a consequence, and also because of other adjustments not at issue here, the court redetermined, App. 264, the following deficiencies in Thor's federal income tax:calendar year 1963 -- $494,055.99calendar year 1965 -- $ 59,287.48The United States Court of Appeals for the Seventh Circuit affirmed. 563 F.2d 861 (1977). We granted certiorari, 435 U.S. 914 (1978), to consider these important and recurring income tax accounting issues.IThe Inventory IssueATaxpayer is a Delaware corporation with principal place of business in Illinois. It manufactures hand-held power tools, parts and accessories, and rubber products. At its various plants and service branches, Thor maintains inventories of raw materials, work-in-process, finished parts and accessories, and completed tools. At all times relevant, Thor has used, both for financial accounting and for income tax purposes, the "lower of cost or market" method of valuing inventories. App. 23-24. See Treas.Reg. § 1.471-2(c), 26 CFR § 1.471-2(c) (1978).Thor's tools typically contain from 50 to 200 parts, each of which taxpayer stocks to meet demand for replacements. Because of the difficulty, at the time of manufacture, of predicting the future demand for various parts, taxpayer produced liberal quantities of each part to avoid subsequent production Page 439 U. S. 526 runs. Additional runs entail costly retooling and result in delays in filling orders. App. 54-55.In 1960, Thor instituted a procedure for writing down the inventory value of replacement parts and accessories for tool models it no longer produced. It created an inventory contra-account and credited that account with 10% of each part's cost for each year since production of the parent model had ceased. 64 T.C. at 156-157; App. 24. The effect of the procedure was to amortize the cost of these parts over a 10-year period. For the first nine months of 1964, this produced a write-down of $22,090. 64 T.C. at 157; App. 24.In late 1964, new management took control and promptly concluded that Thor's inventory in general was overvalued. [Footnote 1] After "a physical inventory taken at all locations" of the tool and rubber divisions, id. at 52, management wrote off approximately $2.75 million of obsolete parts, damaged or defective tools, demonstration or sales samples, and similar items. Id. at 52-53. The Commissioner allowed this writeoff because Thor scrapped most of the articles shortly after their removal from the 1964 closing inventory. [Footnote 2] Management also wrote down $245,000 of parts stocked for three unsuccessful products. Page 439 U. S. 527 Id. at 56. The Commissioner allowed this write-down, too, since Thor sold these items at reduced prices shortly after the close of 1964. Id. at 62.This left some 44,000 assorted items, the status of which is the inventory issue here. Management concluded that many of these articles, mostly spare parts, [Footnote 3] were "excess" inventory, that is, that they were held in excess of any reasonably foreseeable future demand. It was decided that this inventory should be written down to its "net realizable value," which, in most cases, was scrap value. 64 T.C. at 160-161; Brief for Petitioner 9; Tr. of Oral Arg. 11.Two methods were used to ascertain the quantity of excess inventory. Where accurate data were available, Thor forecast future demand for each item on the basis of actual 1964 usage, that is, actual sales for tools and service parts, and actual usage for raw materials, work-in-process, and production parts. Management assumed that future demand for each item would be the same as it was in 1964. Thor then applied the following aging schedule: the quantity of each item corresponding to less than one year's estimated demand was kept at cost; the quantity of each item in excess of two years' estimated demand was written off entirely; and the quantity of each item corresponding to from one to two years' estimated demand was written down by 50% or 75%. App. 26. [Footnote 4] Thor presented no statistical evidence to rationalize Page 439 U. S. 528 these percentages or this timeframe. In the Tax Court, Thor's president justified the formula by citing general business experience, and opined that it was "somewhat in between" possible alternative solutions. [Footnote 5] This first method yielded a total write-down of $744,030. 64 T C., at 160. Page 439 U. S. 529At two plants where 1964 data were inadequate to permit forecasts of future demand, Thor used its second method for valuing inventories. At these plants, the company employed flat percentage write-downs of 5%, 10%, and 50% for various types of inventory. [Footnote 6] Thor presented no sales or other data to support these percentages. Its president observed that "this is not a precise way of doing it," but said that the company"felt some adjustment of this nature was in order, and these figures represented our best estimate of what was required to reduce the inventory to net realizable value."App. 67. This second method yielded a total write-down of $160,832. 64 T.C. at 160.Although Thor wrote down all its "excess" inventory at once, it did not immediately scrap the articles or sell them at reduced prices, as it had done with the $3 million of obsolete and damaged inventory, the write-down of which the Commissioner permitted. Rather, Thor retained the "excess" items physically in inventory and continued to sell them at original prices. Id. at 160-161. The company found that, owing to the peculiar nature of the articles involved, [Footnote 7] price reductions were of no avail in moving this "excess" inventory. Page 439 U. S. 530 As time went on, however, Thor gradually disposed of some of these items as scrap; the record is unclear as to when these dispositions took place. [Footnote 8]Thor's total write-down of "excess" inventory in 1964 therefore was:Ten-year amortization of parts fordiscontinued tools $22,090First method (aging formula basedon 1964 usage) 744,030Second method (flat percentagewrite-downs) 160,832--------Total $926,952Thor credited this sum to its inventory contra-account, thereby decreasing closing inventory, increasing cost of goods sold, and decreasing taxable income for the year by that amount. [Footnote 9] The company contended that, by writing down excess inventory to scrap value, and by thus carrying all inventory at "net realizable value," it had reduced its inventory to "market" in accord with its "lower of cost or market" method of accounting. On audit, the Commissioner disallowed the write-down in its entirety, asserting that it did not serve clearly to reflect Thor's 1964 income for tax purposes.The Tax Court, in upholding the Commissioner's determination, found as a fact that Thor's write-down of excess inventory did conform to "generally accepted accounting principles"; indeed, the court was "thoroughly convinced . . . that such was the case." Id. at 165. The court found that, if Thor had failed to write down its inventory on some reasonable Page 439 U. S. 531 basis, its accountants would have been unable to give its financial statements the desired certification. Id. at 161-162. The court held, however, that conformance with "generally accepted accounting principles" is not enough; § 446(b), and § 471 as well, of the 1954 Code, 26 U.S.C. §§ 446(b) and 471, prescribe, as an independent requirement, that inventory accounting methods must "clearly reflect income." The Tax Court rejected Thor's argument that its write-down of "excess" inventory was authorized by Treasury Regulations, 64 T.C. at 167-171, and held that the Commissioner had not abused his discretion in determining that the write-down failed to reflect 1964 income clearly.BInventory accounting is governed by §§ 446 and 471 of the Code, 26 U.S.C. §§ 446 and 471. Section 446(a) states the general rule for methods of accounting:"Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books."Section 446(b) provides, however, that, if the method used by the taxpayer"does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the [Commissioner], does clearly reflect income."Regulations promulgated under § 446, and in effect for the taxable year 1964, state that "no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income." Treas.Reg. § 1.446-1(a)(2), 26 CFR § 1.446-1(a)(2) (1964). [Footnote 10]Section 471 prescribes the general rule for inventories. It states:"Whenever in the opinion of the [Commissioner] the use Page 439 U. S. 532 of inventories is necessary in order clearly to determine the income of any taxpayer, inventory shall be taken by such taxpayer on such basis as the [Commissioner] may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income."As the Regulations point out, § 471 obviously establishes two distinct tests to which an inventory must conform. First, it must conform "as nearly as may be" to the "best accounting practice," a phrase that is synonymous with "generally accepted accounting principles." Second, it "must clearly reflect the income." Treas.Reg. § 1.471-2(a)(2), 26 CFR § 1.471-2(a)(2) (1964).It is obvious that, on their face, §§ 446 and 471, with their accompanying Regulations, vest the Commissioner with wide discretion in determining whether a particular method of inventory accounting should be disallowed as not clearly reflective of income. This Court's cases confirm the breadth of this discretion. In construing § 446 and its predecessors, the Court has held that "[t]he Commissioner has broad powers in determining whether accounting methods used by a taxpayer clearly reflect income." Commissioner v. Hansen, 360 U. S. 446, 360 U. S. 467 (1959). Since the Commissioner has "[m]uch latitude for discretion," his interpretation of the statute's clear reflection standard "should not be interfered with unless clearly unlawful." Lucas v. American Code Co., 280 U. S. 445, 280 U. S. 449 (1930). To the same effect are United States v. Catto, 384 U. S. 102, 384 U. S. 114 (1966); Schlude v. Commissioner, 372 U. S. 128, 372 U. S. 133-134 (1963); American Automobile Assn. v. United States, 367 U. S. 687, 367 U. S. 697-698 (1961); Automobile Club of Michigan v. Commissioner, 353 U. S. 180, 353 U. S. 189-190 (1957); Brown v. Helvering, 291 U. S. 193, 291 U. S. 203 (1934). In construing § 203 of the Revenue Act of 1918, 40 Stat. 1060, a predecessor of § 471, the Court held that the taxpayer bears a "heavy burden of [proof] ," and that the Commissioner's disallowance Page 439 U. S. 533 of an inventory accounting method is not to be set aside unless shown to be "plainly arbitrary." Lucas v. Structural Steel Co., 281 U. S. 264, 281 U. S. 271 (1930).As has been noted, the Tax Court found as a fact in this case that Thor's write-down of "excess" inventory conformed to "generally accepted accounting principles," and was "within the term, best accounting practice,' as that term is used in section 471 of the Code and the regulations promulgated under that section." 64 T.C. at 161, 165. Since the Commissioner has not challenged this finding, there is no dispute that Thor satisfied the first part of § 471's two-pronged test. The only question, then, is whether the Commissioner abused his discretion in determining that the write-down did not satisfy the test's second prong in that it failed to reflect Thor's 1964 income clearly. Although the Commissioner's discretion is not unbridled and may not be arbitrary, we sustain his exercise of discretion here, for, in this case, the write-down was plainly inconsistent with the governing Regulations which the taxpayer, on its part, has not challenged. [Footnote 11]It has been noted above that Thor at all pertinent times used the "lower of cost or market" method of inventory accounting. The rules governing this method are set out in Treas.Reg. Page 439 U. S. 534 § 1.471; 26 CFR § 1.471 (1964). That Regulation defines "market" to mean, ordinarily,"the current bid price prevailing at the date of the inventory for the particular merchandise in the volume in which usually purchased by the taxpayer."§ 1.471(a). The court have uniformly interpreted "bid price" to mean replacement cost, that is, the price the taxpayer would have to pay on the open market to purchase or reproduce the inventory items. [Footnote 12] Where no open market exists, the Regulations require the taxpayer to ascertain "bid price" by using"such evidence of a fair market price at the date or dates nearest the inventory as may be available, such as specific purchases or sales by the taxpayer or others in reasonable volume and made in good faith, or compensation paid for cancellation of contracts for purchase commitments."§ 1.471(b).The Regulations specify two situations in which a taxpayer is permitted to value inventory below "market" as so defined. The first is where the taxpayer in the normal course of business has actually offered merchandise for sale at prices lower than replacement cost. Inventories of such merchandise may be valued at those prices less direct cost of disposition,"and the correctness of such prices will be determined by reference to the actual sales of the taxpayer for a reasonable period before and after the date of the inventory."Ibid. The Regulations warn that prices "which vary materially from the Page 439 U. S. 535 actual prices so ascertained will not be accepted as reflecting the market." Ibid.The second situation in which a taxpayer may value inventory below replacement cost is where the merchandise itself is defective. If goods are"unsalable at normal prices or unusable in the normal way because of damage, imperfections, shop wear, changes of style, odd or broken lots, or other similar causes,"the taxpayer is permitted to value the goods "at bona fide selling prices less direct cost of disposition." § 1.471-2(c). The Regulations define "bona fide selling price" to mean an "actual offering of goods during a period ending not later than 30 days after inventory date." Ibid. The taxpayer bears the burden of proving that "such exceptional goods as are valued upon such selling basis come within the classifications indicated," and is required to "maintain such records of the disposition of the goods as will enable a verification of the inventory to be made." Ibid.From this language, the regulatory scheme is clear. The taxpayer must value inventory for tax purposes at cost unless the "market" is lower. "Market" is defined as "replacement cost," and the taxpayer is permitted to depart from replacement cost only in specified situations. When it makes any such departure, the taxpayer must substantiate its lower inventory valuation by providing evidence of actual offerings, actual sales, or actual contract cancellations. In the absence of objective evidence of this kind, a taxpayer's assertions as to the "market value" of its inventory are not cognizable in computing its income tax.It is clear to us that Thor's procedures for writing down the value of its "excess" inventory were inconsistent with this regulatory scheme. Although Thor conceded that "an active market prevailed" on the inventory date, see 64 T.C. at 169, it "made no effort to determine the purchase or reproduction cost" of its "excess" inventory. Id. at 162. Thor thus failed to ascertain "market" in accord with the general rule of the Page 439 U. S. 536 Regulations. In seeking to depart from replacement cost, Thor failed to bring itself within either of the authorized exceptions. Thor is not able to take advantage of § 1.471-4(b), since, as the Tax Court found, the company failed to sell its excess inventory or offer it for sale at prices below replacement cost. 64 T.C. at 160-161. Indeed, Thor concedes that it continued to sell its "excess" inventory at original prices. Thor also is not able to take advantage of § 1.471-2(c) since, as the Tax Court and the Court of Appeals both held, it failed to bear the burden of proving that its excess inventory came within the specified classifications. 64 T.C. at 171; 563 F.2d at 867. Actually, Thor's "excess" inventory was normal and unexceptional, and was indistinguishable from and intermingled with the inventory that was not written down.More importantly, Thor failed to provide any objective evidence whatever that the "excess" inventory had the "market value" management ascribed to it. The Regulations demand hard evidence of actual sales, and further demand that records of actual dispositions be kept. The Tax Court found, however, that Thor made no sales and kept no records. 64 T.C. at 171. Thor's management simply wrote down its closing inventory on the basis of a well educated guess that some of it would never be sold. The formulae governing this writedown were derived from management's collective "business experience"; the percentages contained in those formulae seemingly were chosen for no reason other than that they were multiples of five and embodied some kind of anagogical symmetry. The Regulations do not permit this kind of evidence. If a taxpayer could write down its inventories on the basis of management's subjective estimates of the goods' ultimate salability, the taxpayer would be able, as the Tax Court observed, id. at 170, "to determine how much tax it wanted to pay for a given year." [Footnote 13] Page 439 U. S. 537For these reasons, we agree with the Tax Court and with the Seventh Circuit that the Commissioner acted within his discretion in deciding that Thor's write-down of "excess" Page 439 U. S. 538 inventory failed to reflect income clearly. In the light of the well known potential for tax avoidance that is inherent in inventory accounting, [Footnote 14] the Commissioner, in his discretion, may insist on a high evidentiary standard before allowing write-downs of inventory to "market." Because Thor provided no objective evidence of the reduced market value of its "excess" inventory, its write-down was plainly inconsistent with the Regulations, and the Commissioner properly disallowed it. [Footnote 15]CThe taxpayer's major argument against this conclusion is based on the Tax Court's clear finding that the write-down conformed to "generally accepted accounting principles." Thor points to language in Treas.Reg. § 1.446-1(a)(2), 26 FR § 1.446-1(a)(2) (1964), to the effect that"[a] method of accounting which reflects the consistent application of generally Page 439 U. S. 539 accepted accounting principles . . . will ordinarily be regarded as clearly reflecting income."(Emphasis added.) Section 1.471-2(b), 26 CFR § 1.471-2(b) (1964), of the Regulations likewise stated that an inventory taken in conformity with best accounting practice "can, as a general rule, be regarded as clearly reflecting . . . income" (emphasis added). [Footnote 16] These provisions, Thor contends, created a presumption that an inventory practice conformable to "generally accepted accounting principles" is valid for income tax purposes. Once a taxpayer has established this conformity, the argument runs, the burden shifts to the Commissioner affirmatively to demonstrate that the taxpayer's method does not reflect income clearly. Unless the Commissioner can show that a generally accepted method "demonstrably distorts income," Brief for Chamber of Commerce of the United States Page 439 U. S. 540 as Amicus Curiae 3, or that the taxpayer's adoption of such method was "motivated by tax avoidance," Brief for Petitioner 25, the presumption in the taxpayer's favor will carry the day. The Commissioner, Thor concludes, failed to rebut that presumption here.If the Code and Regulations did embody the presumption petitioner postulates, it would be of little use to the taxpayer in this case. As we have noted, Thor's write-down of "excess" inventory was inconsistent with the Regulations; any general presumption obviously must yield in the face of such particular inconsistency. We believe, however, that no such presumption is present. Its existence is insupportable in light of the statute, the Court's past decisions, and the differing objectives of tax and financial accounting.First, as has been stated above, the Code and Regulations establish two distinct tests to which an inventory must conform. The Code and Regulations, moreover, leave little doubt as to which test is paramount. While § 471 of the Code requires only that an accounting practice conform "as nearly as may be" to best accounting practice, § 1.441(a)(2) of the Regulations states categorically that "no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income" (emphasis added). Most importantly, the Code and Regulations give the Commissioner broad discretion to set aside the taxpayer's method if, "in [his] opinion," it does not reflect income clearly. This language is completely at odds with the notion of a "presumption" in the taxpayer's favor. The Regulations embody no presumption; they say merely that, in most cases, generally accepted accounting practices will pass muster for tax purposes. And in most cases they will. But if the Commissioner, in the exercise of his discretion, determines that they do not, he may prescribe a different practice without having to rebut any presumption running against the Treasury. Page 439 U. S. 541Second, the presumption petitioner postulates finds no support in this Court's prior decisions. It was early noted that the general rule specifying use of the taxpayer's method of accounting "is expressly limited to cases where the Commissioner believes that the accounts clearly reflect the net income." Lucas v. American Code Co., 280 U.S. at 280 U. S. 449. More recently, it was held in American Automobile Assn. v. United States that a taxpayer must recognize prepaid income when received, even though this would mismatch expenses and revenues in contravention of "generally accepted commercial accounting principles." 367 U.S. at 367 U. S. 690."[T]o say that, in performing the function of business accounting, the method employed by the Association 'is in accord with generally accepted commercial accounting principles and practices,'"the Court concluded, "is not to hold that, for income tax purposes, it so clearly reflects income as to be binding on the Treasury." Id. at 367 U. S. 693."[W]e are mindful that the characterization of a transaction for financial accounting purposes, on the one hand, and for tax purposes, on the other, need not necessarily be the same."Frank Lyon Co. v. United States, 435 U. S. 561, 435 U. S. 577 (1978). See Commissioner v. Idaho Power Co., 418 U. S. 1, 418 U. S. 15 (1974). Indeed, the Court's cases demonstrate that divergence between tax and financial accounting is especially common when a taxpayer seeks a current deduction for estimated future expenses or losses. E.g., Commissioner v. Hansen, 360 U. S. 446 (1959) (reserve to cover contingent liability in event of nonperformance of guarantee); Brown v. Helvering, 291 U. S. 193 (1934) (reserve to cover expected liability for unearned commissions on anticipated insurance policy cancellations); Lucas v. American Code Co., supra, (reserve to cover expected liability on contested lawsuit). The rationale of these cases amply encompasses Thor's aim. By its president's concession, the company's write-down of "excess" inventory was founded on the belief that many of the articles inevitably would become useless Page 439 U. S. 542 due to breakage, technological change, fluctuations in market demand, and the like. [Footnote 17] Thor, in other words, sought a current "deduction" for an estimated future loss. Under the decided cases, a taxpayer so circumstanced finds no shelter beneath an accountancy presumption.Third, the presumption petitioner postulates is insupportable in light of the vastly different objectives that financial and tax accounting have. The primary goal of financial accounting is to provide useful information to management, shareholders, creditors, and others properly interested; the major responsibility of the accountant is to protect these parties from being misled. The primary goal of the income tax system, in contrast, is the equitable collection of revenue; the major responsibility of the Internal Revenue Service is to protect the public fisc. Consistently with its goals and responsibilities, financial accounting has as its foundation the principle of conservatism, with its corollary that "possible errors in measurement [should] be in the direction of understatement, rather than overstatement, of net income and net assets." [Footnote 18] In view of the Treasury's markedly different goals and responsibilities, understatement of income is not destined to be its guiding light. Given this diversity, even contrariety, Page 439 U. S. 543 of objectives, any presumptive equivalency between tax and financial accounting would be unacceptable. [Footnote 19]This difference in objectives is mirrored in numerous differences of treatment. Where the tax law requires that a deduction be deferred until "all the events" have occurred that will make it fixed and certain, United States v. Anderson, 269 U. S. 422, 269 U. S. 441 (1926), accounting principles typically require that a liability be accrued as soon as it can reasonably be estimated. [Footnote 20] Conversely, where the tax law requires that income be recognized currently under "claim of right," "ability to pay," and "control" rationales, accounting principles may defer accrual until a later year, so that revenues and expenses may be better matched. [Footnote 21] Financial accounting, in short, is hospitable to estimates, probabilities, and reasonable certainties; the tax law, with its mandate to preserve the revenue, can give no quarter to uncertainty. This is as it should be. Reasonable estimates may be useful, even essential, in giving shareholders and creditors an accurate picture of a firm's overall financial health, but the accountant's conservatism cannot bind the Commissioner in his efforts to collect taxes. "Only a few reserves voluntarily established as a matter Page 439 U. S. 544 of conservative accounting," Mr. Justice Brandeis wrote for the Court, "are authorized by the Revenue Acts." Brown v. Helvering, 291 U.S. at 219 U. S. 201-202.Finally, a presumptive equivalency between tax and financial accounting would create insurmountable difficulties of tax administration. Accountants long have recognized that "generally accepted accounting principles" are far from being a canonical set of rules that will ensure identical accounting treatment of identical transactions. [Footnote 22] "Generally accepted accounting principles," rather, tolerate a range of "reasonable" treatments, leaving the choice among alternatives to management. Such, indeed, is precisely the case here. [Footnote 23] Variances of this sort may be tolerable in financial reporting, but they are questionable in a tax system designed to ensure, as far as possible, that similarly situated taxpayers pay the same tax. If management's election among "acceptable" options were dispositive for tax purposes, a firm, indeed, could decide unilaterally -- within limits dictated only by its accountants -- the tax it wished to pay. Such unilateral decisions would not just make the Code inequitable; they would make it unenforceable. Page 439 U. S. 545DThor complains that a decision adverse to it poses a dilemma. According to the taxpayer, it would be virtually impossible for it to offer objective evidence of its "excess" inventory's lower value, since the goods cannot be sold at reduced prices; even if they could be sold, says Thor, their reduced-price sale would just "pull the rug out" from under the identical "non-excess" inventory Thor is trying to sell simultaneously. The only way Thor could establish the inventory's value by a "closed transaction" would be to scrap the articles at once. Yet immediate scrapping would be undesirable, for demand for the parts ultimately might prove greater than anticipated. The taxpayer thus sees itself presented with"an unattractive Hobson's choice: either the unsalable inventory must be carried for years at its cost instead of net realizable value, thereby overstating taxable income by such overvaluation until it is scrapped, or the excess inventory must be scrapped prematurely, to the detriment of the manufacturer and its customers."Brief for Petitioner 25.If this is indeed the dilemma that confronts Thor, it is in reality the same choice that every taxpayer who has a paper loss must face. It can realize its loss now and garner its tax benefit, or it can defer realization, and its deduction, hoping for better luck later. Thor, quite simply, has suffered no present loss. It deliberately manufactured its "excess" spare parts because it judged that the marginal cost of unsalable inventory would be lower than the cost of retooling machinery should demand surpass expectations. This was a rational business judgment and, not unpredictably, Thor now has inventory it believes it cannot sell. Thor, of course, is not so confident of its prediction as to be willing to scrap the "excess" parts now; it wants to keep them on hand, just in case. This, too, is a rational judgment, but there is no reason why the Treasury should subsidize Thor's hedging of its bets. There Page 439 U. S. 546 is also no reason why Thor should be entitled, for tax purposes, to have its cake and to eat it too.IIThe Bad-Debt IssueADeductions for bad debts are covered by § 166 of the 1954 Code, 26 U.S.C. § 166. Section 166(a)(1) sets forth the general rule that a deduction is allowed for "any debt which becomes worthless within the taxable year." Alternatively, the Code permits an accrual-basis taxpayer to account for bad debts by the reserve method. This is implemented by § 166(c), which states that,"[i]n lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the [Commissioner]) a deduction for a reasonable addition to a reserve for bad debts."A "reasonable" addition is the amount necessary to bring the reserve balance up to the level that can be expected to cover losses properly anticipated on debts outstanding at the end of the tax year.At all times pertinent, Thor has used the reserve method. Its reserve at the beginning of 1965 was approximately $93,000. See 64 T.C. at 162. During 1965, Thor's new management undertook a stringent review of accounts receivable. In the company's rubber division, credit personnel studied all accounts; a 100% reserve was set up for two accounts deemed wholly uncollectible, and a 1% reserve was established for all other receivables. Ibid. In the tool division, credit clerks analyzed all accounts more than 90 days past due with balances over $100; a 100% reserve was established for accounts judged wholly uncollectible, and an identical collectibility ratio was applied to accounts under $100 of the same age. A flat 2% reserve was set up for accounts more than 30 days past due, and a 1% reserve for all other accounts. Id. at 162-163. These judgments, approved by three levels of management, indicated that $136,150 should be added to Page 439 U. S. 547 the bad debt reserve, bringing its balance at year-end to a figure slightly below $229,000. Id. at 162. Thor claimed this $136,150 as a deduction under § 166(c).The Commissioner ruled that the deduction was excessive. He computed what he believed to be a "reasonable" addition to Thor's reserve by using the "six-year moving average" formula derived from the decision in Black Motor Co. v. Commissioner, 41 B.T.A. 300 (1940), aff'd on other grounds, 125 F.2d 977 (CA6 1942). This formula seeks to ascertain a "reasonable" addition to a bad debt reserve in light of the taxpayer's recent chargeoff history. [Footnote 24] In this case, the formula indicated that, for the years 1960-1965, Thor's annual chargeoffs of bad debts amounted, on the average, to 3.128% of its year-end receivables. 64 T.C. at 163. Applying that percentage to Thor's 1965 year-end receivables, the Commissioner determined that $154,156.80 of accounts receivable could reasonably be expected to default. The amount required to bring Thor's reserve up to this level was $61,359.20, and the Commissioner decided that this was a "reasonable" addition. Accordingly, he disallowed the remaining $74,790.80 of Thor's claimed § 166(c) deduction. Both the Tax Court, 64 T.C. at 174-175, and the Seventh Circuit, 563 F.2d at 870, held that the Commissioner had not abused his discretion in so ruling.BSection 166(c) states that a deduction for an addition to a bad debt reserve is to be allowed "in the discretion" of the Commissioner. Consistently with this statutory language, the courts uniformly have held that the Commissioner's determination of a "reasonable" (and hence deductible) addition Page 439 U. S. 548 must be sustained unless the taxpayer proves that the Commissioner abused his discretion. [Footnote 25] The taxpayer is said to bear a "heavy burden" in this respect. [Footnote 26] He must show not only that his own computation is reasonable but also that the Commissioner's computation is unreasonable and arbitrary. [Footnote 27] Since it first received the approval of the Tax Court in 1940, the Black Motor bad debt formula has enjoyed the favor of all three branches of the Federal Government. The formula has been employed consistently by the Commissioner, [Footnote 28] approved by the courts, [Footnote 29] and collaterally recognized by the Congress. [Footnote 30] Thor faults the Black Motor formula because of its retrospectivity: by ascertaining current additions to a reserve by reference to past chargeoff experience, the formula Page 439 U. S. 549 assertedly penalizes taxpayers who have delayed in making writeoffs in the past, or whose receivables have just recently begun to deteriorate. Petitioner's objection is not altogether irrational, but it falls short of rendering the formula arbitrary. Common sense suggests that a firm's recent credit experience offers a reasonable index of the credit problems it may suffer currently. And the formula possesses the not inconsiderable advantage of enhancing certainty and predictability in an area peculiarly susceptible of taxpayer abuse. In any event, after its 40 years of near-universal acceptance, we are not inclined to disturb the Black Motor formula now.Granting that Black Motor, in principle, is valid, then the only question is whether the Commissioner abused his discretion in invoking the formula in this case. Of course, there will be cases -- indeed, the Commissioner has acknowledged that there are cases, see Rev.Rul. 76-362, 1976-2 Cum.Bull. 45, 46 -- in which the formula will generate an arbitrary result. If a taxpayer's most recent bad debt experience is unrepresentative for some reason, a formula using that experience as data cannot be expected to produce a "reasonable" addition for the current year. [Footnote 31] If the taxpayer suffers an extraordinary credit reversal (the bankruptcy of a major customer, for example), the "six-year moving average" formula will fail. [Footnote 32] In such a case, where the taxpayer can point to conditions that will cause future debt collections to be less likely than in the past, the taxpayer is entitled to -- and the Commissioner is prepared to allow -- an addition larger than Black Motor would call for. See Rev.Rul. 76-362, supra. Page 439 U. S. 550In this case, however, as the Tax Court found, Thor "did not show that conditions at the end of 1965 would cause collection of accounts receivable to be less likely than in prior years." 64 T.C. at 175. Indeed, the Tax Court"infer[red] from the entire record that collectibility was probably more likely at the end of 1965 than it was [previously], because new management had been infused into petitioner."(Emphasis added.) Thor cited no changes in the conditions of business generally or of its customers specifically that would render the Black Motor formula unreliable; new management just came in and second-guessed its predecessor, taking a "tougher" approach. Management's pessimism may not have been unreasonable, but the Commissioner had the discretion to take a more sanguine view. [Footnote 33]For these reasons, we agree with the Tax Court and with the Court of Appeals that the Commissioner did not abuse his discretion in recomputing a "reasonable" addition to Thor's bad debt reserve according to the Black Motor formula. Thor failed to carry its "heavy burden" of showing why the application of that formula would have been arbitrary in this case.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtThor Power Tool v. Commissioner, 439 U.S. 522 (1979)Thor Power Tool v. Commissioner of Internal RevenueNo. 77-920Argued November 1, 1978Decided January 16, 1979439 U.S. 522SyllabusInventory accounting for tax purposes is governed by §§ 446 and 471 of the Internal Revenue Code of 1954. Section 446 provides that taxable income is to be computed under the taxpayer's normal method of accounting unless that method "does not clearly reflect income," in which event taxable income is to be computed "under such method as, in the opinion of the [Commissioner], does clearly reflect income." Section 471 provides that"[w]henever in the opinion of the [Commissioner] the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventory shall be taken by such taxpayer on such basis as the [Commissioner] may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting income."The implementing Regulations require a taxpayer to value inventory for tax purposes at cost unless "market" (defined as replacement cost) is lower. The Regulations specify two situations in which inventory may be valued below "market" as so defined: (1) where the taxpayer in the normal course of business has actually offered merchandise for sale at prices lower than replacement cost; and (2) where the merchandise is defective. In 1964, petitioner, a tool manufacturer, wrote down in accord with "generally accepted accounting principles" what it regarded as "excess" inventory to its own estimate of the "net realizable value" (generally scrap value) of the "excess" goods (mostly spare parts), but continued to hold the goods for sale at their original prices. It offset the write-down against 1964 sales, and thereby produced a net operating loss for that year. The Commissioner disallowed the offset, maintaining that the writedown did not reflect income clearly for tax purposes. Deductions for bad debts are covered by § 166. Section 166(c) provides that an accrual-basis taxpayer "shall be allowed (in the discretion of the [Commissioner]) a deduction for a reasonable addition to a reserve for bad debts." In 1965, petitioner added to its reserve and asserted as a deduction under § 166(c) a sum that presupposed a substantially higher charge-off rate for bad debts than it had experienced in immediately preceding years. The Commissioner ruled that the addition was excessive, Page 439 U. S. 523 and determined, pursuant to the "six-year moving average" formula derived from Black Motor Co. v. Commissioner, 41 B.T.A. 300, what he regarded as a lesser but "reasonable" amount to be added to petitioner's reserve. On petitioner's petition for redetermination, the Tax Court upheld the Commissioner's exercise of discretion with respect to both the inventory write-down and the bad debt deduction, and the Court of Appeals affirmed.Held:1. The Commissioner did not abuse his discretion in determining that the write-down of "excess" inventory failed to reflect petitioner's 1964 income clearly, since the write-down was plainly inconsistent with the governing Regulations. Pp. 439 U. S. 531-546.(a) Although conceding that "an active market prevailed" on the inventory date, petitioner made no effort to determine the replacement cost of its "excess" inventory, and thus failed to ascertain "market" in accord with the general rule of the Regulations. Petitioner, however, failed to bring itself within either of the authorized exceptions for valuing inventory below "market." Whereas the Regulations demand concrete evidence of reduced market value, petitioner provided no objective evidence whatever that its "excess" inventory had the value management ascribed to it. Pp. 439 U. S. 535-538.(b) There is no presumption that an inventory practice conformable to "generally accepted accounting principles" is valid for tax purposes. Such a presumption is insupportable m light of the statute, this Court's past decisions, and the differing objectives of tax and financial accounting. Pp. 439 U. S. 538-544.(c) While petitioner argues that it should not be forced to defer a tax benefit for inventory currently deemed unsalable until future years, when the "excess" items are actually disposed of, petitioner's "dilemma" is nothing more than the choice every taxpayer with a paper loss must face. Pp. 439 U. S. 545-546.2. The Commissioner did not abuse his discretion in recomputing a "reasonable" addition to petitioner's bad debt reserve according to the Black Motor formula. Because petitioner did not show why its debt collections in 1965 would be less likely than in prior years, it failed to carry its "heavy burden" of showing that application of the Black Motor formula would have been arbitrary. Pp. 439 U. S. 546-550563 F.2d 861, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 439 U. S. 524

1996_96-5955

General Richard, Deputy Solicitor General Dreeben, James A. Feldman, and Deborah Watson. *JUSTICE STEVENS delivered the opinion of the Court.In Wilson v. Arkansas, 514 U. S. 927 (1995), we held that the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, we recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests," id., at 934, and left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment," id., at 936.In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony*Tracey Maclin, Steven R. Shapiro, and Lisa B. Kemler filed a brieffor the American Civil Liberties Union et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Simon B. Karas, and Diane R. Richards, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Gus F. Diaz of Guam, Alan G. Lance of Idaho, James E. Ryan of Illinois, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Thomas J. Miller of Iowa, Frankie Sue Del Papa of Nevada, Steven M. Houran of New Hampshire, Peter Verniero of New Jersey, Tom Udall of New Mexico, Jose Fuentes Agostini of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Jan Graham of Utah, and James Gilmore III of Virginia; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M. Weintraub, and Bernard J. Farber.388drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court's conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers' actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court.IOn December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards' motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of hotel rooms in Madison. The police requested a warrant that would have given advance authorization for a "no-knock" entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant. App. 7, 9.The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards' door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. Brief for Petitioner 6. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. App. 40. When they finally did break389into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles.Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards' strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. Id., at 54. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. Id., at 55. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed. 201 Wis. 2d 845, 549 N. W. 2d 218 (1996).The Wisconsin Supreme Court did not delve into the events underlying Richards' arrest in any detail, but accepted the following facts: "[O]n December 31, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(lm) (1991-92). They did not knock and announce prior to their entry. Drugs were seized." Id., at 849, 549 N. W. 2d, at 220.Assuming these facts, the court proceeded to consider whether our decision in Wilson required the court to abandon its decision in State v. Stevens, 181 Wis. 2d 410, 511 N. W. 2d 591 (1994), cert. denied, 515 U. S. 1102 (1995), which held that "when the police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs, they necessarily have reasonable cause to believe exigent circumstances exist" to justify a no-knock entry. 201 Wis. 2d, at 852, 549 N. W. 2d, at 221. The court concluded390that nothing in Wilson's acknowledgment that the knockand-announce rule was an element of the Fourth Amendment "reasonableness" requirement would prohibit application of a per se exception to that rule in a category of cases. 201 Wis. 2d, at 854-855, 549 N. W. 2d, at 220.In reaching this conclusion, the Wisconsin court found it reasonable-after considering criminal conduct surveys, newspaper articles, and other judicial opinions-to assume that all felony drug crimes will involve "an extremely high risk of serious if not deadly injury to the police as well as the potential for the disposal of drugs by the occupants prior to entry by the police." Id., at 847-848,549 N. W. 2d, at 219. Notwithstanding its acknowledgment that in "some cases, police officers will undoubtedly decide that their safety, the safety of others, and the effective execution of the warrant dictate that they knock and announce," id., at 863, 549 N. W. 2d, at 225, the court concluded that exigent circumstances justifying a no-knock entry are always present in felony drug cases. Further, the court reasoned that the violation of privacy that occurs when officers who have a search warrant forcibly enter a residence without first announcing their presence is minimal, given that the residents would ultimately be without authority to refuse the police entry. The principal intrusion on individual privacy interests in such a situation, the court concluded, comes from the issuance of the search warrant, not the manner in which it is executed. Id., at 864-865, 549 N. W. 2d, at 226. Accordingly, the court determined that police in Wisconsin do not need specific information about dangerousness, or the possible destruction of drugs in a particular case, in order to dispense with the knock-and-announce requirement in felony drug cases.11 Several other state courts-in cases that predate our decision in Wilson-have adopted similar rules, concluding that simple probable cause to search a home for narcotics always allows the police to forgo the knockand-announce requirement. See, e. g., People v. Lujan, 484 P. 2d 1238, 1241 (Colo. 1971) (en bane); Henson v. State, 236 Md. 519, 523-524, 204 A.391Justice Abrahamson concurred in the judgment because, in her view, the facts found by the trial judge justified a no-knock entry. Id., at 866-868, 549 N. W. 2d, at 227. Specifically, she noted that Richards' actions in slamming the door when he saw the uniformed man standing behind Officer Pharo indicated that he already knew that the people knocking on his door were police officers. Under these circumstances, any further announcement of their presence would have been a useless gesture. Id., at 868-869, n. 3, 549 N. W. 2d, at 228, n. 3. While agreeing with the outcome, Justice Abrahamson took issue with her colleagues' affirmation of the blanket exception to the knock-and-announce requirement in drug felony cases. She observed that the constitutional reasonableness of a search has generally been a matter left to the court, rather than to the officers who conducted the search, and she objected to the creation of a blanket rule that insulated searches in a particular category of crime from the neutral oversight of a reviewing judge. Id., at 868-875, 549 N. W. 2d, at 228-230.IIWe recognized in Wilson that the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." 514 U. S., at 936. It is indisputable that felony drug investigations may frequently involve both of these circumstances.2 The question we must2d 516, 519-520 (1964); State v. Loucks, 209 N. W. 2d 772, 777-778 (N. D. 1973). Cf. People v. De Lago, 16 N. Y. 2d 289, 292, 213 N. E. 2d 659, 661 (1965) (similar rule for searches related to gambling operations), cert. denied, 383 U. S. 963 (1966).2 This Court has encountered before the links between drugs and violence, see, e. g., Michigan v. Summers, 452 U. S. 692, 702 (1981), and the likelihood that drug dealers will attempt to dispose of drugs before police seize them, see, e. g., Ker v. California, 374 U. S. 23, 28, n. 3 (1963).392resolve is whether this fact justifies dispensing with caseby-case evaluation of the manner in which a search was executed.3The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today's drug culture, 201 Wis. 2d, at 863-866, 549 N. W. 2d, at 226-227, and the State asserted at oral argument that the blanket exception was reasonable in "felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs." Tr. of Oral Arg. 26. But creating exceptions to the knock-and-announce rule based on the "culture" surrounding a general category of criminal behavior presents at least two serious concerns.43 Although our decision in Wilson did not address this issue directly, it is instructive that in that case-which involved a felony drug investigation-we remanded to the state court for further factual development to determine whether the no-knock entry was reasonable under the circumstances of the case. Two amicus briefs in Wilson suggested that we adopt just the sort of per se rule the Wisconsin court propounded here. Brief for Americans for Effective Law Enforcement, Inc., et al. as Amici Curiae 10-11, Brief for Wayne County, Michigan, as Amicus Curiae 3946, in Wilson v. Arkansas, O. T. 1994, No. 5707. Although the respondent did not argue for a categorical rule, the petitioner, in her reply brief, did address the arguments put forward by the amicus briefs, Reply Brief for Petitioner in Wilson v. Arkansas, O. T. 1994, No. 5707, p. 11, and amici supporting the petitioner also presented arguments against a categorical rule. Brief for American Civil Liberties Union et al. as Amici Curiae in Wilson v. Arkansas, O. T. 1994, No. 5707, p. 29, n. 44. Thus, while the prospect of a categorical rule was one to which we were alerted in Wilson, we did not choose to adopt such a rule at that time.4 It is always somewhat dangerous to ground exceptions to constitutional protections in the social norms of a given historical moment. The purpose of the Fourth Amendment's requirement of reasonableness "is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted-even if a later, less virtuous age should become accustomed to considering all sorts of intrusion 'reasonable.''' Minnesota v. Dickerson, 508 U. S. 366, 380 (1993) (SCALIA, J., concurring).393First, the exception contains considerable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry. 5 Wisconsin's blanket rule impermissibly insulates these cases from judicial review.A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the5 The State asserts that the intrusion on individual interests effectuated by a no-knock entry is minimal because the execution of the warrant itself constitutes the primary intrusion on individual privacy and that the individual privacy interest cannot outweigh the generalized governmental interest in effective and safe law enforcement. Brieffor Respondent 21-24. See also Brieffor United States as Amicus Curiae 16 ("occupants' privacy interest is necessarily limited to the brief interval between the officers' announcement and their entry"). While it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly minimized. As we observed in Wilson v. Arkansas, 514 U. S. 927, 930-932 (1995), the common law recognized that individuals should be provided the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry. These interests are not inconsequential.Additionally, when police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry. The State pointed out at oral argument that, in Wisconsin, most search warrants are executed during the late night and early morning hours. Tr. of Oral Arg. 24. The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.394reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable-albeit hypothetical-risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless.Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard-as opposed to a probable-cause requirement-strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. Maryland v. Buie, 494 U. S. 325, 337 (1990) (allowing a protective sweep of a house during an arrest where the officers have "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene"); Terry v. Ohio, 392 U. S. 1, 30 (1968) (requiring a reasonable and articulable suspicion of danger to justify a patdown search). This showing is not high, but the police395should be required to make it whenever the reasonableness of a no-knock entry is challenged.IIIAlthough we reject the Wisconsin court's blanket exception to the knock-and-announce requirement, we conclude that the officers' no-knock entry into Richards' motel room did not violate the Fourth Amendment. We agree with the trial court, and with Justice Abrahamson, that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do SO.6The judge who heard testimony at Richards' suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. App. 54. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs. Id., at 55.In arguing that the officers' entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers' decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course,6We note that the attorneys general of 26 States, the Commonwealth of Puerto Rico, and the Territory of Guam filed an amicus brief taking the position that the officers' decision was reasonable under the specific facts of this case, but rejecting Wisconsin's per se rule. See Brief for Ohio et al. as Amici Curiae.396the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards' motel room.7 These actual circumstances-petitioner's apparent recognition of the officers combined with the easily disposable nature of the drugsjustified the officers' ultimate decision to enter without first announcing their presence and authority.Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed.It is so ordered

OCTOBER TERM, 1996SyllabusRICHARDS v. WISCONSINCERTIORARI TO THE SUPREME COURT OF WISCONSIN No. 96-5955. Argued March 24, 1997-Decided April 28, 1997In Wilson v. Arkansas, 514 U. S. 927, this Court held that the Fourth Amendment incorporates the common-law requirement that police knock on a dwelling's door and announce their identity and purpose before attempting forcible entry, recognized that the flexible reasonableness requirement should not be read to mandate a rigid announcement rule that ignores countervailing law enforcement interests, id., at 934, and left it to the lower courts to determine the circumstances under which an unannounced entry is reasonable. Id., at 936. Officers in Madison, Wisconsin, obtained a warrant to search petitioner Richards' motel room for drugs and related paraphernalia, but the Magistrate refused to give advance authorization for a "no-knock" entry. The officer who knocked on Richards' door was dressed, and identified himself, as a maintenance man. Upon opening the door, Richards also saw a uniformed officer and quickly closed the door. The officers kicked down the door, caught Richards trying to escape, and found cash and cocaine in the bathroom. In denying Richards' motion to suppress the evidence on the ground that the officers did not knock and announce their presence before forcing entry, the trial court found that they could gather from Richards' strange behavior that he might try to destroy evidence or escape and that the drugs' disposable nature further justified their decision not to knock and announce. The State Supreme Court affirmed, concluding that Wilson did not preclude the court's pre-Wilson per se rule that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation because of the special circumstances of today's drug culture.Held:1. The Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for felony drug investigations. While the requirement can give way under circumstances presenting a threat of physical violence or where officers believe that evidence would be destroyed if advance notice were given, 514 U. S., at 936, the fact that felony drug investigations may frequently present such circumstances cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Creating exceptions to the requirement based on the culture surrounding a general category of criminal behavior presents at386Syllabusleast two serious concerns. First, the exception contains considerable overgeneralization that would impermissibly insulate from judicial review cases in which a drug investigation does not pose special risks. Second, creating an exception in one category can, relatively easily, be applied to others. If a per se exception were allowed for each criminal activity category that included a considerable risk of danger to officers or destruction of evidence, the knock-and-announce requirement would be meaningless. The court confronted with the question in each case has a duty to determine whether the facts and circumstances of the particular entry justified dispensing with the requirement. A "noknock" entry is justified when the police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. This standard strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. Cf. Maryland v. Buie, 494 U. S. 325, 337. Pp.391-395.2. Because the evidence in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, the officers' entry into the motel room did not violate the Fourth Amendment. That the Magistrate had originally refused to issue a noknock warrant means only that at the time the warrant was requested there was insufficient evidence for a no-knock entry. However, the officers' decision to enter the room must be evaluated as of the time of entry. Pp. 395-396.201 Wis. 2d 845, 549 N. W. 2d 218, affirmed.STEVENS, J., delivered the opinion for a unanimous Court.David R. Karpe, by appointment of the Court, 519 U. S. 1106, argued the cause for petitioner. With him on the briefs were John Wesley Hall, Jr., Henry R. Schultz, and Jack E. Schairer.James E. Doyle, Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Stephen W Kleinmaier, Assistant Attorney General.Miguel A. Estrada argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney387Full Text of Opinion

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BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 430 U. S. 384.MR. JUSTICE STEVENS delivered the opinion of the Court.Respondent is in custody pursuant to a sentence imposed by the Superior Court of the District of Columbia. [Footnote 1] He has filed an application for a writ of habeas corpus in the United States District Court for the District of Columbia asking that court to review the constitutionality of the proceedings that Page 430 U. S. 374 led to his conviction and sentence. The question presented to us is whether § 2110(g) of the District of Columbia Code [Footnote 2] prevents the District Court from entertaining the application. [Footnote 3] Page 430 U. S. 375Congress enacted 2110(g) as part of the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 608; that Act created a new local court system and transferred in its entirety the Federal District Court's responsibility for processing local litigation to the Superior Court of the District of Columbia. [Footnote 4] Section 2110 of the Code established a procedure for collateral review of convictions in the Superior Court; the procedure is comparable to that authorized by 28 U.S.C. § 2255 for the United States district courts. Section 2110(g) provides:"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a Page 430 U. S. 376 motion for relief under this section or that the Superior Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. [Footnote 5]"(Emphasis added.)On the authority of this provision, the District Court dismissed respondent's application. [Footnote 6] The Court of Appeals reversed. Largely because of its doubts concerning the constitutionality of a statutory curtailment of the District Court's jurisdiction to issue writs of habeas corpus, the Court of Appeals construed the statute as merely requiring exhaustion of local remedies before a habeas corpus petition could be filed in the District Court. [Footnote 7] The Court of Appeals, unlike Page 430 U. S. 377 the District Court, concluded that respondent had exhausted his local remedies, and thus remanded the case to the District Court for consideration of the merits. The Government's petition for certiorari, which we granted, 424 U.S. 907, did not question the Court of Appeals' conclusion regarding exhaustion. [Footnote 8]IThere are two reasons why § 2110(g) cannot fairly be read as merely requiring the exhaustion of local remedies before applying for a writ of habeas corpus in the District Court.First, the statute expressly covers the situation in which the applicant has exhausted his local remedies, and requires that the application be denied in such a case. The statute provides that the application "shall not be entertained . . . by any Federal . . . court if it appears that . . . the Superior Court has denied [the applicant] relief." This unequivocal statutory command to federal courts not to entertain an application for habeas corpus after the applicant has been denied collateral relief in the Superior Court is squarely at odds with the Court of Appeals' view that the statute deals only with the procedure the applicant must follow before he may request relief in the District Court.Second, the language of § 2110(g) was deliberately patterned after 28 U.S.C. § 2255. [Footnote 9] That section, enacted in Page 430 U. S. 378 1948, 62 Stat. 967, substituted a new collateral review procedure for the preexisting habeas corpus procedure. Prior to the adoption of § 2255, the district courts for the districts in which federal prisoners were confined entertained habeas corpus petitions; since 1948, collateral review has been available pursuant to § 2255 only in the districts in which the convictions were obtained. Thus, § 2255 created a new post-conviction remedy in the sentencing court, and provided that a habeas corpus petition may not be entertained elsewhere. [Footnote 10] See United States v. Haman, 342 U. S. 205. Just as § 2255 was intended to substitute a different forum and a different procedure for collateral review of federal convictions, § 23-110(g) was plainly intended to achieve a parallel result with respect to convictions in the District of Columbia.Notwithstanding the desirability of adopting a construction of the statute which would avoid the constitutional issue raised by respondent, we are convinced that the language of § 2110(g) is sufficiently plain to require us simply to read it as it is written. [Footnote 11] Page 430 U. S. 379IIRespondent argues [Footnote 12] that § 2110(g), if read literally, violates Art. I, § 9, cl. 2, of the United States Constitution, which provides:"The Privilege of the Writ of Habeas Corpus shall not Page 430 U. S. 380 be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."His argument is made in two steps: (1) that the substitution of a remedy that is not "exactly commensurate" with habeas corpus relief available in a district court is a suspension of the writ within the meaning of the Clause; and (2) that, because the judges of the Superior Court of the District of Columbia do not enjoy the life tenure and salary protection which are guaranteed to district judges by Art. III, § 1, of the Constitution, the collateral review procedure authorized by § 2110(g) of the District of Columbia Code is not exactly commensurate with habeas corpus relief in the district courts.The Government disputes both propositions. First, it contends that the constitutional provision merely prohibits suspension of the writ as it was being used when the Constitution was adopted; at that time, the writ was not employed in collateral attacks on judgments entered by courts of competent jurisdiction. [Footnote 13] Second, it contends that the procedure authorized by § 2110(g) is "exactly commensurate" with the preexisting habeas corpus remedy. Page 430 U. S. 381We are satisfied that the statute is valid, but we do not rest our decision on either of the broad propositions advanced by the Government. We are persuaded that the final Clause in § 23-110(g) avoids any serious question about the constitutionality of the statute. That clause allows the District Court to entertain a habeas corpus application if it "appears that the remedy by motion is inadequate or ineffective to test the legality of [the applicant's] detention." Thus, the only constitutional question presented is whether the substitution of a new collateral remedy which is both adequate and effective should be regarded as a suspension of the Great Writ within the meaning of the Constitution. The obvious answer to this question is provided by the Court's opinion in United States v. Hayman:"In a case where the Section 2255 procedure is shown to be 'inadequate or ineffective,' the Section provides that the habeas corpus remedy shall remain open to afford the necessary hearing. Under such circumstances, we do not reach constitutional questions."342 U.S. at 342 U. S. 223 (footnote omitted). The Court implicitly held in Hayman, as we hold in this case, that the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.The question which remains is whether the remedy in the Superior Court of the District of Columbia created by § 23-110 is "inadequate or ineffective." We have already construed the remedy created by 28 U.S.C. § 2255 as the exact equivalent of the preexisting habeas corpus remedy. Hill v. United States, 368 U. S. 424, 368 U. S. 427. [Footnote 14] Since the scope of the remedy provided Page 430 U. S. 382 by § 210 is the same as that provided by § 2255, it is also commensurate with habeas corpus in all respects save one -- the judges who administer it do not have the tenure and salary protection afforded by Art. III of the Constitution. [Footnote 15]We are fully cognizant of the critical importance of life tenure, particularly when judges are required to vindicate the constitutional rights of persons who have been found guilty of criminal offenses. [Footnote 16] The relationship between life tenure and judicial independence was vigorously explained by Mr. Justice Douglas in his dissenting opinion in Palmore v. United States, 411 U. S. 389, 411 U. S. 410-422. But, as the Court held in that case, the Constitution does not require that all persons charged Page 430 U. S. 383 with federal crimes be tried in Art. III courts. [Footnote 17] That holding necessarily determines that the judges of the Superior Court of the District of Columbia must be presumed competent to decide all issues, including constitutional issues, that routinely arise in the trial of criminal cases. We must, therefore, presume that the collateral relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure. [Footnote 18]This conclusion is consistent with the settled view that elected judges of our state courts are fully competent to decide federal constitutional issues, and that their decisions must be respected by federal district judges in processing habeas corpus applications pursuant to 28 U.S.C. § 2254. Normally a state judge's resolution of a factual issue will be presumed to be correct unless the factfinding procedure employed by the state court was not adequate. [Footnote 19] It is equally permissible to presume that the judges of the Superior Court of the District of Columbia will correctly resolve constitutional issues unless it has been demonstrated, in accordance with the final clause of § 2110(g), that the remedy afforded by that court is "inadequate or ineffective." [Footnote 20] Page 430 U. S. 384Finding no reason to doubt the adequacy of the remedy provided by § 23-110, and having noted that its scope is commensurate with habeas corpus relief, we hold that § 23-110(g) has not suspended the writ of habeas corpus within the meaning of Art.I, § 9, cl. 2.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtSwain v. Pressley, 430 U.S. 372 (1977)Swain v. PressleyNo. 75-811Argued January 19, 1977Decided March 22, 1977430 U.S. 372SyllabusRespondent, in custody pursuant to a sentence imposed by the Superior Court of the District of Columbia, applied in the United States District Court for the District of Columbia for a writ of habeas corpus seeking a review of the constitutionality of the proceedings that led to his conviction and sentence. The District Court dismissed the application on the basis of D.C.Code Ann. § 23-110(g) (1973), which provides that an application for a writ of habeas corpus on behalf of a prisoner authorized to apply for collateral relief by motion in the Superior Court pursuant to the statute"shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superior Court has denied him relief. . . ."The United States Court of Appeals for the District of Columbia Circuit reversed. Doubting the constitutionality of the statutory curtailment of the District Court's jurisdiction to issue writs of habeas corpus, the court construed the statute as merely requiring the exhaustion of local remedies before a habeas corpus petition could be filed in the District Court, and concluded that respondent had exhausted those remedies.Held:1. Section 23-110(g) prohibits the District Court from entertaining respondent's post-conviction application for a writ of habeas corpus. The statute expressly covers the situation in which the applicant has exhausted his local remedies, and requires that the Federal District Court not entertain the habeas application in such a case. Moreover, the language of § 23-110(g) was deliberately patterned after 28 U.S.C. § 2255, which created a new post-conviction remedy in sentencing district courts, and provided that a habeas corpus petition may not be entertained elsewhere; § 23-110(g) was plainly intended to achieve the parallel result in the District of Columbia by requiring collateral review of convictions from the Superior Court to be heard in that court. Pp. 430 U. S. 377-378.2. Section 23-110(g) does not suspend the privilege of the writ of habeas corpus in violation of Art. I, § 9, cl. 2, of the Constitution. Pp. 430 U. S. 379-384. Page 430 U. S. 373(a) The final clause of § 2110(g), which allows a Federal District Court to entertain a habeas corpus application if it "appears that the remedy by motion is inadequate or ineffective to test the legality of [the applicant's] detention," avoids any serious question about the statute's constitutionality. The substitution of a new collateral remedy that is neither inadequate nor ineffective does not constitute a suspension of the writ. Cf. United States v. Hayman, 342 U. S. 205, 342 U. S. 223. P. 430 U. S. 381.(b) The collateral relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court lack the protections of Art. III judges (life tenure and salary protection), for they must be presumed competent to decide all constitutional and other issues that routinely arise in criminal cases. Pp. 430 U. S. 381-383.169 U.S.App.D.C. 319, 515 F.2d 1290, reversed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ., joined, and in Part I of which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 430 U. S. 384. BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 430 U. S. 384.