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1999_98-1696

and on one count of possession of a firearm by a convicted felon, § 922(g). He received a sentence of 171 months' imprisonment, consisting of three concurrent 51-month terms on the § 841(a) and § 922(g) counts, to be followed by two consecutive 60-month terms on the § 924(c) counts. In addition, the District Court imposed a mandatory 3-year term of supervised release for the drug possession offenses. See 21 U. S. C. § 841(b)(1)(C) (1994 ed., Supp. III). The Court of Appeals, though otherwise affirming respondent's convictions and sentence, concluded the District Court erred in sentencing him to consecutive terms of imprisonment for the two § 924(c) firearm offenses. United States v. Johnson, 25 F.3d 1335, 1337-1338 (CA6 1994) (en banc). On remand the District Court modified the prisoner's sentence to a term of 111 months.After our decision in Bailey v. United States, 516 U. S. 137 (1995), respondent filed a motion under 28 U. S. C. § 2255 to vacate his § 924(c) convictions, and the Government did not oppose. On May 2, 1996, the District Court vacated those convictions, modifying respondent's sentence to 51 months. He had already served more than that amount of time, so the District Court ordered his immediate release. His term of supervised release then went into effect. This dispute concerns its length.In June 1996, respondent filed a motion requesting the District Court to reduce his supervised release term by 2.5 years, the extra time served on the vacated § 924(c) convictions. The District Court denied relief, explaining that pursuant to 18 U. S. C. § 3624(e) the supervised release commenced upon respondent's actual release from incarceration, not before. Granting respondent credit, the court observed, would undermine Congress' aim of using supervised release to assist convicted felons in their transitions to community life.A divided Court of Appeals reversed. 154 F.3d 569 (CA6 1998). The court accepted respondent's argument that his56term of supervised release commenced not on the day he left prison confines but earlier, when his lawful term of imprisonment expired. Id., at 571. Awarding respondent credit for the extra time served, the court further concluded, would provide meaningful relief because supervised release, while serving rehabilitative purposes, is also "punitive in nature." Ibid. Judge Gilman dissented, agreeing with the position of the District Court. Id., at 572-573.The Courts of Appeals have reached differing conclusions on the question presented. Compare United States v. Blake, 88 F.3d 824, 825 (CA9 1996) (supervised release commences on the date defendants "should have been released, rather than on the dates of their actual release"), with United States v. Jeanes, 150 F.3d 483, 485 (CA5 1998) (supervised release cannot run during any period of imprisonment); United States v. Joseph, 109 F.3d 34 (CA1 1997) (same); United States v. Douglas, 88 F.3d 533, 534 (CA8 1996) (same). We granted certiorari to resolve the question, 527 U. S. 1062 (1999), and we now reverse.Section 3583(a) of Title 18 authorizes, and in some instances mandates, sentencing courts to order supervised release terms following imprisonment. On the issue presented for review-whether a term of supervised release begins on the date of actual release from incarceration or on an earlier date due to a mistaken interpretation of federal law-the language of § 3624(e) controls. The statute provides in relevant part:"A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or super-57vised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days."The quoted language directs that a supervised release term does not commence until an individual "is released from imprisonment." There can be little question about the meaning of the word "release" in the context of imprisonment. It means "[t]o loosen or destroy the force of; to remove the obligation or effect of; hence to alleviate or remove; ... [t]o let loose again; to set free from restraint, confinement, or servitude; to set at liberty; to let go." Webster's New International Dictionary 2103 (2d ed. 1949). As these definitions illustrate, the ordinary, commonsense meaning of release is to be freed from confinement. To say respondent was released while still imprisoned diminishes the concept the word intends to convey.The first sentence of § 3624(e) supports our construction.A term of supervised release comes "after imprisonment," once the prisoner is "released by the Bureau of Prisons to the supervision of a probation officer." Supervised release does not run while an individual remains in the custody of the Bureau of Prisons. The phrase "on the day the person is released," in the second sentence of § 3624(e), suggests a strict temporal interpretation, not some fictitious or constructive earlier time. The statute does not say "on the day the person is released or on the earlier day when he should have been released." Indeed, the third sentence admonishes that "supervised release does not run during any period in which the person is imprisoned."The statute does provide for concurrent running of supervised release in specific cases. After the operative phrase "released from imprisonment," § 3624(e) requires the con-58current running of a term of supervised release with terms of probation, parole, or with other, separate terms of supervised release. The statute instructs that concurrency is permitted not for prison sentences but only for those other types of sentences given specific mention. The next sentence in the statute does address a prison term and does allow concurrent counting, but only for prison terms less than 30 days in length. When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference, and the one we adopt here, is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. The 30-day exception finds no application in this case; each of respondent's sentences, to which the term of supervised release attached, exceeded that amount of time. Finally, § 3583(e)(3) does not have a substantial bearing on the interpretive issue, for this directive addresses instances where conditions of supervised release have been violated, and the court orders a revocation.Our conclusion finds further support in 18 U. S. C. § 3583(a), which authorizes the imposition of "a term of supervised release after imprisonment." This provision, too, is inconsistent with respondent's contention that confinement and supervised release can run at the same time. The statute's direction is clear and precise. Release takes place on the day the prisoner in fact is freed from confinement.The Court of Appeals reasoned that reduction of respondent's supervised release term was a necessary implementation of § 3624(a), which provides that "[a] prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment .... " All concede respondent's term of imprisonment should have ended earlier than it did. It does not follow, however, that the term of supervised release commenced, as a matter of law, once he completed serving his lawful sentences. It is true the prison term and the release term are related, for the latter cannot begin until the former expires. Though inter-59related, the terms are not interchangeable. The Court of Appeals was mistaken in holding otherwise, and the text of § 3624(e) cannot accommodate the rule the Court of Appeals derived. Supervised release has no statutory function until confinement ends. Cf. United States v. Granderson, 511 U. S. 39, 50 (1994) (observing that "terms of supervised release ... follow up prison terms"). The rule of lenity does not alter the analysis. Absent ambiguity, the rule of lenity is not applicable to guide statutory interpretation. Cf. Gozlon-Peretz v. United States, 498 U. S. 395, 410 (1991).While the text of § 3624(e) resolves the case, we observe that our conclusion accords with the statute's purpose and design. The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration. See § 3553(a)(2)(D); United States Sentencing Commission, Guidelines Manual §§ 5D1.3(c), (d), (e) (Nov. 1998); see also S. Rep. No. 98-225, p. 124 (1983) (declaring that "the primary goal [of supervised release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release"). Sentencing courts, in determining the conditions of a defendant's supervised release, are required to consider, among other factors, "the nature and circumstances of the offense and the history and characteristics of the defendant," "the need ... to afford adequate deterrence to criminal conduct; ... to protect the public from further crimes of the defendant; and ... to provide the defendant with needed educational or vocational training, medical care, or other cor-60rectional treatment." 18 U. S. C. § 3553(a). In the instant case, the transition assistance ordered by the trial court required respondent, among other conditions, to avoid possessing or transporting firearms and to participate in a drug dependency treatment program. These conditions illustrate that supervised release, unlike incarceration, provides individuals with postconfinement assistance. Cf. Gozlon-Peretz, supra, at 407 (describing "[s]upervised release [a]s a unique method of postconfinement supervision invented by the Congress for a series of sentencing reforms"). The Court of Appeals erred in treating respondent's time in prison as interchangeable with his term of supervised release.There can be no doubt that equitable considerations of great weight exist when an individual is incarcerated beyond the proper expiration of his prison term. The statutory structure provides a means to address these concerns in large part. The trial court, as it sees fit, may modify an individual's conditions of supervised release. § 3583(e)(2). Furthermore, the court may terminate an individual's supervised release obligations "at any time after the expiration of one year ... if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." § 3583(e)(1). Respondent may invoke § 3583(e)(2) in pursuit of relief; and, having completed one year of supervised release, he may also seek relief under § 3583(e)(1).The statute, by its own necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusUNITED STATES v. JOHNSONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 98-1696. Argued December 8, 1999-Decided March 1,2000Respondent had been serving time in federal prison for multiple drug and firearms felonies when two of his convictions were declared invalid. As a result, he had served 2.5 years' too much prison time and was at once set free, but a 3-year term of supervised release was yet to be served on the remaining convictions. He filed a motion to reduce his supervised release term by the amount of extra prison time he served. The District Court denied relief, explaining that the supervised release commenced upon respondent's actual release from incarceration, not before. The Sixth Circuit reversed, accepting respondent's argument that his supervised release term commenced not on the day he left prison, but when his lawful term of imprisonment expired.Held: This Court is bound by the controlling statute, 18 U. S. C. § 3624(e), which, by its necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison. Under § 3624(e), a supervised release term does not commence until an individual "is released from imprisonment." The ordinary, commonsense meaning of "release" is to be freed from confinement. To say respondent was released while still imprisoned diminishes the concept the word intends to convey. Section 3624(e) also provides that a supervised release term comes "after imprisonment," once the prisoner is "released by the Bureau of Prisons to the supervision of a probation officer." Thus, supervised release does not run while an individual remains in the Bureau of Prisons' custody. The phrase "on the day the person is released" in § 3624(e) suggests a strict temporal interpretation, not some fictitious or constructive earlier time. Indeed, the section admonishes that "supervised release does not run during any period in which the person is imprisoned." The statute does provide for concurrent running of supervised release in specific, identified cases, but the Court infers that Congress limited § 3624(e) to the exceptions set forth. Finally, § 3583(e)(3) does not have a substantial bearing on the interpretive issue, for this directive addresses instances where conditions of supervised release have been violated, and the court orders a revocation. While the text of § 3624(e) resolves the case, the Court's conclusion accords with the objectives of supervised release, which include assisting individuals in their transition to community life. Super-54vised release fulfills rehabilitative ends, distinct from those served by incarceration. The Court also observes that the statutory structure provides a means to address the equitable concerns that exist when an individual is incarcerated beyond the proper expiration of his prison term. The trial court, as it sees fit, may modify the individual's supervised release conditions, § 3583(e)(2), or it may terminate his supervised release obligations after one year of completed service, § 3583(e)(1). Pp.56-60.154 F.3d 569, reversed and remanded.KENNEDY, J., delivered the opinion for a unanimous Court.Barbara McDowell argued the cause for the United States. With her on the briefs were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Richard A. Friedman.Kevin M. Schad argued the cause and filed a brief for respondent. *JUSTICE KENNEDY delivered the opinion of the Court.An offender had been serving time in federal prison for multiple felonies when two of his convictions were declared invalid. As a result, he had served too much prison time and was at once set free, but a term of supervised release was yet to be served on the remaining convictions. The question becomes whether the excess prison time should be credited to the supervised release term, reducing its length. Bound by the text of the controlling statute, 18 U. S. C. § 3624(e), we hold that the supervised release term remains unaltered.Respondent Roy Lee Johnson was convicted in 1990 on two counts of possession with an intent to distribute controlled substances, 84 Stat. 1260, 21 U. S. C. § 841(a), on two counts of use of a firearm in connection with a drug trafficking crime, 18 U. S. C. § 924(c) (1994 ed. and Supp. IV),* Edward M. Chikofsky, Barbara E. Bergman, and Henry J. Bemporad filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.55Full Text of Opinion

1963_11

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which MR. JUSTICE GOLDBERG joins.Appellant, Nico Jacobellis, manager of a motion picture theater in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene film in Page 378 U. S. 186 violation of Ohio Revised Code (1963 Supp.), § 2905.34. [Footnote 1] He was fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid. His conviction, by a court of three judges upon waiver of trial by jury, was affirmed by an intermediate appellate court, 115 Ohio App. 226, 175 N.E.2d 123, and by the Supreme Court of Ohio, 173 Ohio St. 22, 179 N.E.2d 777. We noted probable jurisdiction of the appeal, 371 U.S. 808, and subsequently restored the case to the calendar for reargument, 373 U.S. 901. The dispositive question is whether the state courts properly found that the motion picture involved, a French film called "Les Amants" ("The Lovers"), was obscene, and Page 378 U. S. 187 hence not entitled to the protection for free expression that is guaranteed by the First and Fourteenth Amendments. We conclude that the film is not obscene, and that the judgment must accordingly be reversed.Motion pictures are within the ambit of the constitutional guarantees of freedom of speech and of the press. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495. But, in Roth v. United States and Alberts v. California, 354 U. S. 476, we held that obscenity is not subject to those guarantees. Application of an obscenity law to suppress a motion picture thus requires ascertainment of the "dim and uncertain line" that often separates obscenity from constitutionally protected expression. Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 66; see Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. [Footnote 2] It has been suggested that this is a task in which our Court need not involve itself. We are told that the determination whether a particular motion picture, book, or other work of expression is obscene can be treated as a purely factual judgment on which a jury's verdict is all but conclusive, or that, in any event, the decision can be left essentially to state and lower federal courts, with this Court exercising only a limited review such as that needed to determine whether the ruling below is supported by "sufficient evidence." The suggestion is appealing, since it would lift from our shoulders a difficult, recurring, and unpleasant task. But we cannot accept it. Such an abnegation of judicial Page 378 U. S. 188 supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees. Since it is only "obscenity" that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law. See Roth v. United States, supra, 354 U.S. at 354 U. S. 497-498 (separate opinion). Such an issue, we think, must ultimately be decided by this Court. Our duty admits of no "substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case." Id., at 354 U. S. 498; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.). [Footnote 3] Page 378 U. S. 189In other areas involving constitutional rights under the Due Process Clause, the Court has consistently recognized its duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case. E.g., Watts v. Indiana, 338 U. S. 49, 338 U. S. 51; Norris v. Alabama, 294 U. S. 587, 294 U. S. 590. [Footnote 4] And this has been particularly true where rights have been asserted under the First Amendment guarantees of free expression. Thus in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335, the Court stated:"The Constitution has imposed upon this Court final authority to determine the meaning and application of whose words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. [Footnote 5]"We cannot understand why the Court's duty should be any different in the present case, where Jacobellis has Page 378 U. S. 190 been subjected to a criminal conviction for disseminating a work of expression, and is challenging that conviction as a deprivation of rights guaranteed by the First and Fourteenth Amendments. Nor can we understand why the Court's performance of its constitutional and judicial function in this sort of case should be denigrated by such epithets as "censor" or "super-censor." In judging alleged obscenity, the Court is no more "censoring" expression than it has in other cases "censored" criticism of judges and public officials, advocacy of governmental overthrow, or speech alleged to constitute a breach of the peace. Use of an opprobrious label can neither obscure nor impugn the Court's performance of its obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments, and, in doing so, to delineate the scope of constitutionally protected speech. Hence, we reaffirm the principle that, in "obscenity" cases, as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected. [Footnote 6] Page 378 U. S. 191The question of the proper standard for making this determination has been the subject of much discussion and controversy since our decision in Roth seven years ago. Recognizing that the test for obscenity enunciated there --"whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest,"354 U.S. at 354 U. S. 489 -- is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is "utterly without redeeming social importance," and that"[t]he portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press."Id., 354 U.S. at 354 U. S. 484, 354 U. S. 487. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U. S. 684, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. [Footnote 7] Nor may the constitutional status of the material be made to turn on a "weighing" of its social importance against its prurient appeal, for a work cannot be proscribed unless it is "utterly" without social importance. See Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 31 Cal. Rptr. 800, 813, 383 P.2d 152, 165 (1963). It should also be recognized that the Roth standard requires, in the first instance, a finding that the material "goes substantially beyond customary limits of candor in description or representation of such matters." This was a requirement of the Model Penal Code test that we approved in Roth, 354 U.S. at 354 U. S. 487, n. 20, and it is explicitly reaffirmed in the Page 378 U. S. 192 more recent Proposed Official Draft of the Code. [Footnote 8] In the absence of such a deviation from society's standards of decency, we do not see how any official inquiry into the allegedly prurient appeal of a work of expression can be squared with the guarantees of the First and Fourteenth Amendments. See Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 482-488 (opinion of Harlan, J.).It has been suggested that the "contemporary community standards" aspect of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth. The concept of "contemporary community standards" was first expressed by Judge Learned Hand in United States v. Kennerley, 209 F. 119, 121 (D.C.S.D.N.Y.1913), where he said:"Yet, if the time is not yet when men think innocent all that which is honestly germane to a pure subject, however little it may mince its words, still I scarcely think that they would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its memberships. If there be no abstract definition, such as I have suggested, should not the word 'obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now? . . . To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the Page 378 U. S. 193 necessities of the lowest and least capable seems a fatal policy.""Nor is it an objection, I think, that such an interpretation gives to the words of the statute a varying meaning from time to time. Such words as these do not embalm the precise morals of an age or place; while they presuppose that some things will always be shocking to the public taste, the vague subject matter is left to the gradual development of general notions about what is decent. . . ."(Italics added.) It seems clear that in this passage Judge Hand was referring not to state and local "communities," but rather to "the community" in the sense of "society at large; . . . the public, or people in general." [Footnote 9] Thus, he recognized that, under his standard, the concept of obscenity would have "a varying meaning from time to time" -- not from county to county, or town to town.We do not see how any "local" definition of the "community" could properly be employed in delineating the area of expression that is protected by the Federal Constitution. MR. JUSTICE HARLAN pointed out in Manual Enterprises, Inc. v. Day, supra, 370 U.S. at 370 U. S. 488, that a standard based on a particular local community would have"the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency. Cf. Butler v. Michigan, 352 U. S. 380."It is true that Manual Enterprises dealt with the federal statute banning obscenity from the mails. But the mails are not the only means by which works of expression cross local community lines in this country. It can hardly be assumed that all the patrons of a particular library, bookstand, or motion picture theater are residents of the Page 378 U. S. 194 smallest local "community" that can be drawn around that establishment. Furthermore, to sustain the suppression of a particular book or film in one locality would deter its dissemination in other localities where it might be held not obscene, since sellers and exhibitors would be reluctant to risk criminal conviction in testing the variation between the two places. It would be a hardy person who would sell a book or exhibit a film anywhere in the land after this Court had sustained the judgment of one "community" holding it to be outside the constitutional protection. The result would thus be "to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly." Smith v. California, 361 U. S. 147, 361 U. S. 154.It is true that local communities throughout the land are, in fact, diverse, and that, in cases such as this one, the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. The Court has regularly been compelled, in reviewing criminal convictions challenged under the Due Process Clause of the Fourteenth Amendment, to reconcile the conflicting rights of the local community which brought the prosecution and of the individual defendant. Such a task is admittedly difficult and delicate, but it is inherent in the Court's duty of determining whether a particular conviction worked a deprivation of rights guaranteed by the Federal Constitution. The Court has not shrunk from discharging that duty in other areas, and we see no reason why it should do so here. The Court has explicitly refused to tolerate a result whereby "the constitutional limits of free expression in the Nation Page 378 U. S. 195 would vary with state lines," Pennekamp v. Florida, supra, 328 U.S. at 328 U. S. 335, we see even less justification for allowing such limits to vary with town or county lines. We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. [Footnote 10] It is, after all, a national Constitution we are expounding.We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to "reduce the adult population . . . to reading only what is fit for children." Butler v. Michigan, 352 U. S. 380, 352 U. S. 383. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination. [Footnote 11] Since the present conviction is based upon exhibition of the film to the public at large, and not upon its exhibition to children, the judgment must be reviewed under the strict standard applicable in determining the scope of the expression that is protected by the Constitution.We have applied that standard to the motion picture in question. "The Lovers" involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologist with whom she has Page 378 U. S. 196 suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State's objections are based almost entirely upon that scene. The film was favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced. It was shown in approximately 100 of the larger cities in the United States, including Columbus and Toledo, Ohio. We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.Reversed

U.S. Supreme CourtJacobellis v. Ohio, 378 U.S. 184 (1964)Jacobellis v. OhioNo. 11Argued March 26, 1963Restored to the calendar for reargument April 29, 1963Reargued April 1, 1964Decided June 22, 1964378 U.S. 184SyllabusAppellant, manager of a motion picture theater, was convicted under a state obscenity law of possessing and exhibiting an allegedly obscene film, and the State Supreme Court upheld the conviction.Held: The judgment is reversed. Pp. 378 U. S. 184-198.173 Ohio St. 22,179 N.E.2d 777, reversed.MR. JUSTICE BRENNAN, joined by MR. JUSTICE GOLDBERG, concluded that:1. Though motion pictures are within the constitutional guarantees of freedom of expression, obscenity is not within those guarantees. P. 378 U. S. 187.2. This Court cannot avoid making an independent judgment as to whether material condemned as obscene is constitutionally protected. Pp. 378 U. S. 187-190.3. The test for obscenity is"whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."Roth v. United States, 354 U. S. 476. Pp. 378 U. S. 191-195.(a) A work cannot be proscribed unless it is "utterly without redeeming social importance," and, hence, material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection. P. 378 U. S. 191.(b) The constitutional status of allegedly obscene material does not turn on a "weighing" of its social importance against its prurient appeal, for a work may not be proscribed unless it is "utterly" without social importance. P. 378 U. S. 191.(c) Before material can be proscribed as obscene under this test, it must be found to go substantially beyond customary limits of candor in description or representation. Pp. 378 U. S. 191-192.(d) The "contemporary community standards" by which the issue of obscenity is to be determined are not those of the particular Page 378 U. S. 185 local community from which the case arises, but those of the Nation as a whole. Pp. 378 U. S. 192-195.4. The recognized interest in preventing dissemination of material deemed harmful to children does not justify its total suppression. This conviction, based not on the exhibition of the film to children, but on its exhibition to the public at large, must be reviewed under the strict standard applicable in determining the scope of the constitutional protection. P. 378 U. S. 195.5. The film is not obscene under the applicable standard. P. 378 U. S. 196.MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that a conviction for exhibiting a motion picture violates the First Amendment, which is made obligatory on the States by the Fourteenth Amendment. Pp. 378 U. S. 196-197.MR. JUSTICE STEWART concluded that criminal obscenity laws are constitutionally limited under the First and Fourteenth Amendments to "hard-core pornography." P. 378 U. S. 197.MR. JUSTICE GOLDBERG concluded that there is no justification here for making an exception to the "freedom of expression" rule, for, by any arguable standard, this film is not obscene. Pp. 378 U. S. 197-198.

1972_72-792

MR. JUSTICE POWELL delivered the opinion of the Court.The question before us is whether the Social Security Act of 1935, 49 Stat. 620, as amended, bars a State from Page 413 U. S. 407 independently requiring individuals to accept employment as a condition for receipt of federally funded aid to families with dependent children. More precisely, the issue is whether that part of the Social Security Act known as the Federal Work Incentive Program (WIN) preempts the provisions of the New York Social Welfare Law commonly referred to as the New York Work Rules. A brief description of both the state and federal programs will be necessary.The Work Rules were enacted by New York in 1971 [Footnote 1] Page 413 U. S. 408 as part of Governor Rockefeller's efforts to reorganize the New York Welfare Program. Their aim, as explained by the Governor, is to encourage"the young and able-bodied, temporarily in need of assistance through no fault of their own, to achieve the education and the skills, the motivation and the determination that will make it possible for them to become increasingly self-sufficient, independent citizens who can contribute to and share in the responsibility for their families and our society. [Footnote 2]"To achieve this, the Work Rules establish a presumption that certain recipients of public assistance are employable [Footnote 3] and require those recipients to report every two weeks to pick up their assistance checks in person; to file every two weeks a certificate from the appropriate public employment office stating that no suitable employment opportunities are available; to report for Page 413 U. S. 409 requested employment interviews; to report to the public employment office the result of a referral for employment; and not to fail willfully to report for suitable employment, when available. In addition to establishing a system of referral for employment in the private sector of the economy, the Work Rules permit the establishment of public works projects in New York's social service districts. [Footnote 4] Failure of "employable" persons to participate in the operation of the Work Rules results in a loss of assistance. [Footnote 5]Like the Work Rules, WIN is designed to help individuals on welfare "acquire a sense of dignity, self-worth, and confidence which will flow from being recognized as a wage-earning member of society . . . ," 42 U.S.C. § 630 (1970 ed., Supp. I). The program was enacted as part of the 1967 amendments to the Social Security Act, [Footnote 6] whereby States were required to incorporate WIN into their Aid to Families With Dependent Children (AFDC) Page 413 U. S. 410 plans. 42 U.S.C. §§ 602(a)(19), 630 et seq. (1970 ed. and Supp. I). Every state AFDC plan must provide that certain "employable" individuals, as a condition for receiving aid, shall register for manpower services, training, and employment under regulations promulgated by the Secretary of Labor. 42 U.S.C. § 602(a)(19)(A) (1970 ed., Supp. I). [Footnote 7] Available services, to be provided by the State, must include"such health, vocational rehabilitation, counseling, child care, and other social and supportive services as are necessary to enable such individuals to accept employment or receive manpower training. . . ."42 U.S.C. § 602(a)(19)(G) (1970 ed., Page 413 U. S. 411 Supp. I). After the required services have been provided, the State must certify to the Secretary of Labor those individuals who are ready for employment or training programs, 42 U.S.C. §§ 602(a)(19)(G), 632, 633 (1970 ed. and Supp. I). [Footnote 8] Employment consists both of work in the regular economy and participation in public service programs. 42 U.S.C. §§ 630, 632, 633 (1970 ed. and Supp. I). As with the Work Rules, cooperation in WIN is necessary for employable individuals to continue to receive assistance.In the court below, appellees, New York public assistance recipients subject to the Work Rules, challenged those Rules as violative of several provisions of the Constitution and as having been preempted by the WIN provisions of the Federal Social Security Act. The three-judge District Court rejected all but the last contention. 348 F. Supp. 290 (WDNY 1972). On this point, it held that "for those in the AFDC program, WIN preempts" [Footnote 9] the New York Work Rules. Id. at 297. [Footnote 10] As Page 413 U. S. 412 this holding not only affected the continued operation of the New York Rules but raised serious doubts as to the viability of the supplementary work programs in 22 States, we set the cause for argument, 409 U.S. 1123 (1973). [Footnote 11] We now reverse this holding.IThe holding of the court below affects the Work Rules only insofar as they apply to AFDC recipients. 348 F. Supp. at 297, 300 and n. 5. New York's Home Relief program, for example -- a general state assistance plan for which there is no federal reimbursement or support [Footnote 12] -- remains untouched by the court's preemption ruling. As to AFDC participants, however, the decision below would render the Work Rules inoperative and hold WIN "the exclusive manner of applying the carrot and stick" in efforts to place such recipients in gainful employment. Id. at 300. [Footnote 13] Page 413 U. S. 413This is a sweeping step that strikes at the core of state prerogative under the AFDC program -- a program which this Court has been careful to describe as a "scheme of cooperative federalism." King v. Smith, 392 U. S. 309, 392 U. S. 316 (1968); Dandridge v. Williams, 397 U. S. 471, 397 U. S. 478 (1970); Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 542 (1972). It could impair the capacity of the state government to deal effectively with the critical problem of mounting welfare costs and the increasing financial dependency of many of its citizens. New York has a legitimate interest in encouraging those of its citizens who can work to do so, and thus contribute to the societal wellbeing in addition to their personal and family support. To the extent that the Work Rules embody New York's attempt to promote self-reliance and civic responsibility, to assure that limited state welfare funds be spent on behalf of those genuinely incapacitated and most in need, and to cope with the fiscal hardships enveloping many state and local governments, this Court should not lightly interfere. The problems confronting our society in these areas are severe, and state governments, in cooperation with the Federal Government, must be allowed considerable latitude in attempting their resolution.This Court has repeatedly refused to void state statutory programs, absent congressional intent to preempt them."If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed."Schwartz v. Texas, 344 U. S. 199, 344 U. S. 202-203 (1952). Page 413 U. S. 414 See also Engineers v. Chicago, R.I. & P. R. Co., 382 U. S. 423, 382 U. S. 429 (1966); Huron Portland Cement Co. v. City of Detroit, 362 U. S. 440, 362 U. S. 446 (1960); Mintz v. Baldwin, 289 U. S. 346, 289 U. S. 350 (1933); Savage v. Jones, 225 U. S. 501, 225 U. S. 533 (1912).This same principle relates directly to state AFDC programs, where the Court already has acknowledged that States"have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program."King v. Smith, supra, at 318 U. S. 318-319; Dandridge v. Williams, supra, at 397 U. S. 478; Jefferson v. Hackney, supra, at 406 U. S. 541. Moreover, at the time of the passage of WIN in 1967, 21 States already had initiated welfare work requirements as a condition of AFDC eligibility. [Footnote 14] If Congress had intended to preempt state plans and efforts in such an important dimension of the AFDC program as employment referrals for those on assistance, such intentions would, in all likelihood, have been expressed in direct and unambiguous language. No such expression exists, however, either in the federal statute or in the committee reports. [Footnote 15]Appellees argue, nonetheless, that Congress intended to preempt state work programs because of the comprehensive nature of the WIN legislation, its legislative history, [Footnote 16] Page 413 U. S. 415 and the alleged conflicts between certain sections of the state and federal laws. [Footnote 17] We do not agree. We reject, to begin with, the contention that preemption is to be inferred merely from the comprehensive character of the federal work incentive provisions, 42 U.S.C. §§ 602(a) (19), 630 et seq. (1970 ed. and Supp. I). The subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem, cf. Askew v. American Waterways, 411 U. S. 325 (1973). Given the complexity of the matter addressed by Congress in WIN, a detailed statutory scheme was both likely and appropriate, completely apart from any questions of preemptive intent. This would be especially the case when the federal work incentive provisions had to be sufficiently comprehensive to authorize and govern programs in States which had no welfare work requirements of their own as well as cooperatively in States with such requirements.Appellees also rely, as did the District Court, on the legislative history as supporting the view that "the WIN legislation is addressed to all AFDC recipients, leaving no employable recipients to be subject to state work rules." Brief for Appellees 29. The court below pointed to no specific legislative history as supportive of its conclusion. Appellees do cite fragmentary statements Page 413 U. S. 416 which we find unpersuasive. Reliance is placed, for example, on a, statement in the Report of the House Ways and Means Committee on the WIN legislation as follows:"Under your committee's bill, States would be required to develop a program for each appropriate relative and dependent child which would assure, to the maximum extent possible, that each individual would enter the labor force in order to become self-sufficient. To accomplish this, the States would have to assure that each adult in the family and each child over age 16 who is not attending school is given, when appropriate, employment counseling, testing, and job training."H.R.Rep. No. 544, 90th Cong., 1st Sess., 16 (1967). [Footnote 18] (Emphasis supplied.) At best, this statement is ambiguous as to a possible congressional intention to supersede all state work programs. [Footnote 19] "Appropriateness," as used in the Committee Page 413 U. S. 417 Report, may well mean "appropriateness" solely within the scope and confines of WIN. Furthermore, the language employed by Congress in enacting WIN must be considered in conjunction with its operational scope and level of funding, which, as will be shown, is quite limited with respect to the total number of employable AFDC recipients, 413 U. S. infra.In sum, our attention has been directed to no relevant argument which supports, except in the most peripheral way, the view that Congress intended, either expressly or impliedly, to preempt state work programs. Far more would be required to show the "clear manifestation of [congressional] intention" which must exist before a federal statute is held "to supersede the exercise" of state action. Schwartz v. Texas, 344 U.S. at 344 U. S. 202-203. Page 413 U. S. 418IIPersuasive affirmative reasons exist in this case which also strongly negate the view that Congress intended, by the enactment of the WIN legislation, to terminate all existing state work programs and foreclose additional state cooperative programs in the future. We note, first, that WIN itself was not designed on its face to be all-embracing. Federal work incentive programs were to be established only in States and political subdivisions"in which [the Secretary of Labor] determines there is a significant number of individuals who have attained age 16 and are receiving aid to families with dependent children. In other political subdivisions, he shall use his best efforts to provide such programs either within such subdivisions or through the provision of transportation for such persons to political subdivisions of the State in which such programs are established."42 U.S.C. § 632(a) (1970 ed., Supp. I).This section constitutes an express recognition that the federal statute probably would be limited in scope and application. [Footnote 20] In New York, this has meant operation of WIN in only 14 of New York's 64 social service districts, though these 14 districts do service approximately 90 of the welfare recipients in the State. Yet the Secretary of Labor has not authorized additional WIN programs for the other districts, resulting in a lack of federal job placement opportunities in the more lightly populated areas of States and in those without adequate Page 413 U. S. 419 transportation of potential enrollees to districts with WIN programs. [Footnote 21]Even in the districts where WIN does operate, its reach is limited. In New York, according to federal estimates, there are 150,000 WIN registrants for the current fiscal year, but the Secretary of Labor has contracted with the State to provide services to only 90,000 registrants, of whom the majority will not receive full job training and placement assistance. [Footnote 22] In fiscal 1971, New York asserts that"17,511 individuals were referred for participation in the WIN Program, but the Federal government allowed only 9,600 opportunities for enrollment. [Footnote 23]"California claims "over 122,000 employable AFDC recipients" last year, but only 18,000 available WIN slots. [Footnote 24]It is evident that WIN is a partial program which stops short of providing adequate job and training opportunities for large numbers of state AFDC recipients. It would be incongruous for Congress, on the one hand, to promote work opportunities for AFDC recipients, and, on the other, to prevent States from undertaking supplementary efforts toward this very same end. We cannot Page 413 U. S. 420 interpret federal statutes to negate their own stated purposes. The significance of state supplementation is illustrated by the experience in New York, where the Work Rules have aided the objectives of federal work incentives: from July 1 through September 30, 1971, the first months of the Work Rules' operation, the State Employment Service claimed job placements for approximately 9,376 recipients. [Footnote 25]Moreover, the Department of Health, Education, and Welfare, the agency of Government responsible for administering the Federal Social Security Act -- including reviewing of state AFDC programs -- has never considered the WIN legislation to be preemptive. HEW has followed consistently the policy of approving state plans containing welfare work requirements so long as those requirements are not arbitrary or unreasonable. [Footnote 26] Congress presumably knew of this settled administrative policy at the time of enactment of WIN, when 21 States had welfare work programs. Subsequent to WIN's passage, HEW has continued to approve state work requirements. Pursuant to such approval, New York has received Page 413 U. S. 421 federal grants-in-aid for the operation of its AFDC plan, including its.work provisions. [Footnote 27] In interpreting this statute, we must be mindful that"the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong. . . ."Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 381 (1969); Dandridge v. Williams, 397 U.S. at 397 U. S. 481-482. In this case, such indications are wholly absent.New York, furthermore, has attempted to operate the Work Rules in such a manner as to avoid friction and overlap with WIN. Officials from both the State Department of Labor and a local Social Service Department testified below that every AFDC recipient appropriate for WIN was first referred there, that no person was to be referred to the state program who was participating in WIN, and that only if there was no position available for him under WIN, was a recipient to be referred for employment pursuant to state statute. [Footnote 28] Where coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal preemption becomes a less persuasive one.In this context, the dissenting opinion's reliance on Townsend v. Swank, 404 U. S. 282 (1971), Carleson v. Remillard, 406 U. S. 598 (1972), and King v. Smith, 392 U. S. 309 (1968), is misplaced. In those cases, it was clear that state law excluded people from AFDC benefits who the Social Security Act expressly provided would be eligible. The Court found no room either in the Act's Page 413 U. S. 422 language or legislative history to warrant the States' additional eligibility requirements. Here, by contrast, the Act allows for complementary state work incentive programs and procedures incident thereto -- even if they become conditions for continued assistance. Such programs and procedures are not necessarily invalid, any more than other supplementary regulations promulgated within the legitimate sphere of state administration. See Wyman v. James, 400 U. S. 309 (1971); Snell v. Wyman, 281 F. Supp. 853 (SDNY), aff'd, 393 U. S. 323 (1969). See also Dandridge v. Williams, supra; Jefferson v. Hackney, 406 U. S. 535 (1972).IIIWe thus reverse the holding below that WIN preempts the New York Work Rules. Our ruling establishes the validity of a state work program as one means of helping AFDC recipients return to gainful employment. We do not resolve, however, the question of whether some particular sections of the Work Rules might contravene the specific provisions of the Federal Social Security Act.This last question we remand to the court below. That court did not have the opportunity to consider the issue of specific conflict between the state and federal programs, free from its misapprehension that the Work Rules had been entirely preempted. Further, the New York Legislature amended the Work Rules in 1972 to provide, among other things, for exemption of persons engaged in full-time training and vocational rehabilitation programs from the reporting and check pickup requirements (N.Y.Laws 1972, c. 683), for monthly rather than semi-monthly payments of shelter allowances (id., c. 685) and, most significantly, for a definition of an "employable" AFDC recipient which is claimed by New York to be identical to that now used Page 413 U. S. 423 under WIN (id., c. 941). Inasmuch as the court below did not have the opportunity to consider the 1972 amendments as they related to the issue of potential state-federal conflict, the remand should afford it.We deem it unnecessary at the present time to intimate any view on whether or to what extent particular provisions of the Work Rules may contravene the purposes or provisions of WIN. Such a determination should be made initially by the court below, consistent with the principles set forth in this opinion. [Footnote 29]The judgment of the three-judge District Court is reversed, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtNew York Dept. of Soc. Svcs. v. Dublino, 413 U.S. 405 (1973)New York Department of Social Services v. DublinoNo. 72-792Argued April 17-18, 1973Decided June 21, 1973*413 U.S. 405SyllabusThe 1967 amendments to the Social Security Act included the Federal Work Incentive Program (WIN), designed to help individuals on welfare become wage-earning members of society. The States were required to incorporate this program into their Aid to Families With Dependent Children (AFDC) program, to provide that certain "employable" individuals, as a condition for receiving aid, shall register for manpower services, training, and employment. In 1971, New York enacted provisions of its Social Welfare Law, commonly referred to as the New York Work Rules, which similarly required cooperation by employable individuals to continue to receive assistance. Appellees, New York public assistance recipients subject to the Work Rules, challenge those Rules as having been preempted by the WIN provisions of the Social Security Act. The three-judge District Court ruled that, "for those in the AFDC program, WIN preempts the New York Work Rules."Held:1. The WIN provisions of the Social Security Act do not preempt the New York Work Rules of the New York Social Welfare Law. Pp. 413 U. S. 412-423.(a) There is no substantial evidence that Congress intended, either expressly or impliedly, to preempt state work programs. More is required than the apparent comprehensiveness of the WIN legislation to show the "clear manifestation of [congressional] intention" that must exist before a federal statute is held "to supersede the exercise" of state action. Schwartz v. Texas, 344 U. S. 199, 344 U. S. 202-203. Pp. 413 U. S. 412-417.(b) Affirmative evidence exists to establish Congress' intention not to terminate all state work programs and foreclose future state cooperative programs: WIN is limited in scope and application; Page 413 U. S. 406 it is a partial program, with state supplementation, as illustrated by New York; and the Department of Health, Education, and Welfare, responsible for administering the Social Security Act, has never considered WIN as preemptive. Pp. 413 U. S. 417-421.(c) Where coordinate state and federal efforts exist within a complementary administrative framework in the pursuit of common purposes, as here, the case for federal preemption is not persuasive. Pp. 413 U. S. 421-422.2. The question of whether some particular sections of the Work Rules might contravene the specific provisions of the Social Security Act is not resolved, but is remanded to the District Court for consideration. Pp. 413 U. S. 422 423.348 F. Supp. 290, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 413 U. S. 423.

1960_22

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE HARLAN.Petitioner, a native of Hungary, was admitted to citizenship by a decree of the District Court in 1940. Respondent filed a complaint to revoke and set aside that Page 364 U. S. 351 order as authorized by § 340(a) of the Immigration and Nationality Act of 1952, 66 Stat. 260, as amended, 68 Stat. 1232, 8 U.S.C. § 1451(a), on the ground that it had been procured "by concealment of a material fact or by willful misrepresentation." [Footnote 1] The complaint stated that petitioner had falsely denied membership in the Communist Party and that, by virtue of that membership, he lacked the requisite attachment to the Constitution, etc., and the intent to renounce foreign allegiance. It also alleged that petitioner had procured his naturalization by concealing and misrepresenting a record of arrests. The District Court cancelled petitioner's naturalization, finding that he had concealed and misrepresented three matters -- his arrests, his membership in the Communist Party, and his allegiance. The Court of Appeals affirmed, reaching only the question of the concealment of the arrests. 270 F.2d 179. The case is here on a writ of certiorari. 362 U.S. 901.One question, on a form petitioner filled out in connection with his petition for naturalization, asked if he had ever been "arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation," and, if so, to give full particulars. To Page 364 U. S. 352 this question petitioner answered "no." There was evidence that when he was questioned under oath by an examiner he gave the same answer. There was also evidence that, if his answer has been "yes," the investigative unit of the Immigration Service would check with the authorities at the places where the arrests occurred "to ascertain . . . whether the full facts were stated."The District Court found that, from 10 to 11 years before petitioner was naturalized, he had been arrested three times as follows:(1) On July 30, 1929, he was arrested for distributing handbills in New Haven, Connecticut, in violation of an ordinance. He pleaded not guilty and was discharged.(2) On December 21, 1929, he was arrested for violating the park regulations in New Haven, Connecticut, by making "an oration, harangue, or other public demonstration in New Haven Green, outside of the churches." Petitioner pleaded not guilty. Disposition of the charge is not clear, the notation on the court record reading "Found J.S." which respondent suggests may mean "Judgment Suspended" after a finding of guilt.(3) On March 11, 1930, he was again arrested in New Haven and this time charged with "General Breach of the Peace." He was found guilty by the City Court and fined $25. He took an appeal, and the records show "nolled April 7, 1930."Acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by the naturalization procedure is, of course, to be exacted, and temporizing with the truth must be vigorously discouraged. Failure to give frank, honest, and unequivocal answers to the court when one seeks naturalization is a serious matter. Complete replies are essential so that the qualifications of the applicant or his lack of them may be ascertained. Suppressed or concealed facts, if known, might in and of themselves justify Page 364 U. S. 353 denial of citizenship. Or disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship.On the other hand, in view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside -- the evidence must indeed be "clear, unequivocal, and convincing," and not leave "the issue in doubt." Schneiderman v. United States, 320 U. S. 118, 320 U. S. 125, 320 U. S. 158; Baumgartner v. United States, 322 U. S. 665, 322 U. S. 670. The issue in these cases is so important to the liberty of the citizen that the weight normally given concurrent findings of two lower courts does not preclude reconsideration here, for we deal with "judgments lying close to opinion regarding the whole nature of our government and the duties and immunities of citizenship." Baumgartner v. United States, supra, 322 U. S. 671. And see Klapprott v. United States, 335 U. S. 601, 335 U. S. 612 and (concurring opinion) 335 U. S. 617.While disclosure of them was properly exacted, the arrests in these cases were not reflections on the character of the man seeking citizenship. The statute in force at the time of his naturalization required that"he has behaved as a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States"during the previous five years. [Footnote 2] These arrests were made some years prior to the critical five-year period. They did not, moreover, involve moral turpitude within the meaning of the law. Cf. Jordan v. De George, 341 U. S. 223. No fraudulent conduct was charged. They involved distributing handbills, making a speech, and a breach of the peace. In one instance, he was discharged, in one instance the prosecution was "nolled," and Page 364 U. S. 354 in the other (for making a speech in a park in violation of city regulations) he apparently received a suspended sentence. The totality of the circumstances surrounding the offenses charged makes them of extremely slight consequence. Had they involved moral turpitude or acts directed at the Government, had they involved conduct which even peripherally touched types of activity which might disqualify one from citizenship, a different case would be presented. On this record, the nature of these arrests, the crimes charged, and the disposition of the cases do not bring them, inherently, even close to the requirement of "clear, unequivocal, and convincing" evidence that naturalization was illegally procured within the meaning of § 340(a) of the Immigration and Nationality Act.It is argued, however, that disclosure of the arrests made in New Haven, Connecticut, in the years 1929 and 1930 would have led to a New Haven investigation at which leads to other evidence -- more relevant and material than the arrests -- might have been obtained. His residence in New Haven was from February, 1929, to November, 1930. Since that period was more than five years before his petition for naturalization, the name of his employer at that time was not required by the form prepared by the Service. It is now said, however, that if the arrests had been disclosed and investigated, the Service might well have discovered that petitioner in 1929 was "a district organizer" of the Communist Party in Connecticut. One witness in this denaturalization proceeding testified that such was the fact. An arrest, though by no means probative of any guilt or wrongdoing, is sufficiently significant as an episode in a man's life that it may often be material at least to further enquiry. We do not minimize the importance of that disclosure. In this case, however, we are asked to base materiality on Page 364 U. S. 355 the tenuous line of investigation that might have led from the arrests to the alleged communistic affiliations, when, as a matter of fact, petitioner in this same application disclosed that he was an employee and member of the International Workers' Order, which is said to be controlled by the Communist Party. In connection with petitioner's denial of such affiliations, respondent argues that, since it was testified that the IWO was an organization controlled and dominated by the Communist Party, it is reasonable to infer that petitioner had those affiliations at the time of the application. But. by the same token. it would seem that a much less tenuous and speculative nexus with the Communist Party, if it be such, was thereby disclosed, and was available for further investigation if it had been deemed appropriate at the time. Cf. United States v. Anastasio, 226 F.2d 912. It is said that IWO did not become tainted with Communist control until 1941. We read the record differently. If the Government's case is made out, that taint extended back at least as far as 1939. Had that disclosure not been made in the application, failure to report the arrests would have had greater significance. It could then be forcefully argued that failure to disclose the arrests was part and parcel of a project to conceal a Communist Party affiliation. But, on this record, the failure to report the three arrests occurring from 10 to 11 years previously is neutral. We do not speculate as to why they were not disclosed. We only conclude that, in the circumstances of this case, the Government has failed to show by "clear, unequivocal, and convincing" evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship. Page 364 U. S. 356There are issues in the case which we do not reach and which were not passed upon by the Court of Appeals. Accordingly, the judgment will be reversed and the cause remanded to it so that the other questions raised in the appeal may be considered.It is so ordered

U.S. Supreme CourtChaunt v. United States, 364 U.S. 350 (1960)Chaunt v. United StatesNo. 22Argued October 17, 1960Decided November 14, 1960364 U.S. 350SyllabusUnder § 340(a) of the Immigration and Nationality Act of 1952, as amended, the United States sued to revoke the order admitting petitioner to citizenship, on the ground that it had been procured "by concealment of a material fact or by willful misrepresentation." The complaint alleged, and the District Court found, that petitioner had concealed membership in the Communist Party, a lack of intent to renounce foreign allegiance, and a record of arrests, and it revoked his citizenship. The Court of Appeals affirmed, reaching only the question of concealment of the arrests, which occurred more than five years before petitioner's naturalization and were for distributing handbills, making a speech in a public park, and a breach of the peace.Held: on the record in this case concerning the arrests, the Government failed to show by clear, unequivocal, and convincing evidence either (1) that facts were suppressed which, if known, would have warranted denial of citizenship, or (2) that their disclosure might have been useful in an investigation possibly leading to the discovery of other facts warranting denial of citizenship. Pp. 364 U. S. 350-356.270 F.2d 179, reversed and cause remanded.

1967_949

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Alabama, together with every other State, Puerto Rico, the Virgin Islands, the District of Columbia, and Guam, participates in the Federal Government's Aid to Families With Dependent Children (AFDC) program, which was established by the Social Security Act of 1935. [Footnote 1] 49 Stat. 620, as amended, 42 U.S.C. §§ 301-1394. This appeal presents the question whether a regulation of the Alabama Department of Pensions and Security, employed in that Department's administration of the State's federally funded AFDC program, is consistent with Subchapter IV of the Social Security Act, 42 U.S.C. §§ 601-609, and with the Equal Protection Clause of the Fourteenth Amendment. At issue is the validity of Alabama's so-called "substitute father" regulation, which denies AFDC payments to the children of a mother who "cohabits" in or outside her home with any single or married able-bodied man. Appellees brought this class action against appellants, officers, and members of the Alabama Board of Pensions and Security, in the United States District Court for the Middle District of Alabama, under 42 U.S.C. § 1983, [Footnote 2] seeking declaratory and injunctive relief. A properly convened three-judge District Page 392 U. S. 312 Court [Footnote 3] correctly adjudicated the merits of the controversy without requiring appellees to exhaust state administrative remedies, [Footnote 4] and found the regulation to be inconsistent with the Social Security Act and the Equal Protection Clause. [Footnote 5] We noted probable jurisdiction, 390 Page 392 U. S. 313 U.S. 903 (1968), and, for reasons which will appear, we affirm without reaching the constitutional issue.IThe AFDC program is one of three major categorical public assistance programs established by the Social Security Act of 1935. See U.S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 5-7 (1964) (hereafter cited as Advisory Commission Report). The category singled out for welfare assistance by AFDC is the "dependent child," who is defined in § 406 of the Act, 49 Stat. 629, as amended, 42 U.S.C. § 606(a) (1964 ed., Supp. II), as an age-qualified [Footnote 6]"needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with"any one of several listed relatives. Under this provision, and, insofar as relevant here, aid can be granted only if "a parent" of the needy child is continually absent from the home. [Footnote 7] Alabama considers a man who qualifies as a "substitute father" under its regulation to be a nonabsent parent within the federal statute. The State therefore denies aid to an otherwise eligible needy child on the basis that his substitute parent is not absent from the home.Under the Alabama regulation, an "able-bodied man, married or single, is considered a substitute father of all Page 392 U. S. 314 the children of the applicant . . . mother" in three different situations: (1) if "he lives in the home with the child's natural or adoptive mother for the purpose of cohabitation"; or (2) if "he visits [the home] frequently for the purpose of cohabiting with the child's natural or adoptive mother"; or (3) if "he does not frequent the home, but cohabits with the child's natural or adoptive mother elsewhere." [Footnote 8] Whether the substitute father is actually the father of the children is irrelevant. It is also irrelevant whether he is legally obligated to support the children, and whether he does, in fact, contribute to their support. What is determinative is simply whether he "cohabits" with the mother. [Footnote 9]The testimony below by officials responsible for the administration of Alabama's AFDC program establishes that "cohabitation," as used in the regulation, means essentially that the man and woman have "frequent" or "continuing" sexual relations. With regard to how frequent or continual these relations must be, the testimony is conflicting. One state official testified that the regulation applied only if the parties had sex at least once a week; another thought once every three months would suffice, and still another believed once every six months sufficient. The regulation itself provides that pregnancy or a baby under six months of age is prima facie evidence of a substitute father. Page 392 U. S. 315Between June, 1964, when Alabama's substitute father regulation became effective, and January, 1967, the total number of AFDC recipients in the State declined by about 20,000 persons, and the number of children recipients by about 16,000, or 22%. As applied in this case, the regulation has caused the termination of all AFDC payments to the appellees, Mrs. Sylvester Smith and her four minor children.Mrs. Smith and her four children, ages 14, 12, 11, and 9, reside in Dallas County, Alabama. For several years prior to October 1, 1966, they had received aid under the AFDC program. By notice dated October 11, 1966, they were removed from the list of persons eligible to receive such aid. This action was taken by the Dallas County welfare authorities pursuant to the substitute father regulation, on the ground that a Mr. Williams came to her home on weekends and had sexual relations with her.Three of Mrs. Smith's children have not received parental support or care from a father since their natural father's death in 1955. The fourth child's father left home in 1963, and the child has not received the support or care of his father since then. All the children live in the home of their mother, and, except for the substitute father regulation, are eligible for aid. The family is not receiving any other type of public assistance, and has been living, since the termination of AFDC payments, on Mrs. Smith's salary of between $16 and $20 per week which she earns working from 3:30 a.m. to 12 noon as a cook and waitress.Mr. Williams, the alleged "substitute father" of Mrs. Smith's children, has nine children of his own and lives with his wife and family, all of whom are dependent upon him for support. Mr. Williams is not the father of any of Mrs. Smith's children. He is not legally obligated, under Alabama law, to support any of Mrs. Smith's Page 392 U. S. 316 children. [Footnote 10] Further, he is not willing or able to support the Smith children, and does not, in fact, support them. His wife is required to work to help support the Williams household.IIThe AFDC program is based on a scheme of cooperative federalism. See generally Advisory Commission Report, supra, at 1-59. It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627, Page 392 U. S. 317 42 U.S.C. §§ 601, 602, 603, and 604. See Advisory Commission Report, supra, at 21-23. [Footnote 11] The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U.S.C. § 602 (1964 ed., Supp. II). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§ 2200, 2300 (hereafter cited as Handbook). [Footnote 12]One of the statutory requirements is that "aid to families with dependent children . . . shall be furnished with reasonable promptness to all eligible individuals. . . ." 64 Stat. 550, as amended, 42 U.S.C. § 602(a)(9) (1964 ed., Supp. II). As noted above, § 406(a) of the Act defines a "dependent child" as one who has been deprived of "parental" support or care by reason of the death, continued absence, or incapacity of a "parent." 42 U.S.C. § 606(a) (1964 ed., Supp. II). In combination, these two provisions of the Act clearly require participating States to furnish aid to families with children who have a parent absent from the home, if such families are in other respects eligible. See also Handbook, pt. IV, § 2200(b)(4).The State argues that its substitute father regulation simply defines who is a nonabsent "parent" under Page 392 U. S. 318 § 406(a) of the Social Security Act. 42 U.S.C. § 60(a) (1964 ed., Supp. II). The State submits that the regulation is a legitimate way of allocating its limited resources available for AFDC assistance, in that it reduces the caseload of its social workers and provides increased benefits to those still eligible for assistance. Two state interests are asserted in support of the allocation of AFDC assistance achieved by the regulation: first, it discourages illicit sexual relationships and illegitimate births; second, it puts families in which there is an informal "marital" relationship on a par with those in which there is an ordinary marital relationship, because families of the latter sort are not eligible for AFDC assistance. [Footnote 13]We think it well to note at the outset what is not involved in this case. There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need [Footnote 14] and to determine the level of benefits by the Page 392 U. S. 319 amount of funds it devotes to the program. [Footnote 15] See Advisory Commission Report, supra, at 30-59. Further, there is no question that regular and actual contributions to a needy child, including contributions from the kind of person Alabama calls a substitute father, can be taken into account in determining whether the child is needy. [Footnote 16] In other words, if, by reason of such a man's contribution, Page 392 U. S. 320 the child is not in financial need, the child would be ineligible for AFDC assistance without regard to the substitute father rule. The appellees here, however, meet Alabama's need requirements; their alleged substitute father makes no contribution to their support, and they have been denied assistance solely on the basis of the substitute father regulation. Further, the regulation itself is unrelated to need, because the actual financial situation of the family is irrelevant in determining the existence of a substitute father.Also not involved in this case is the question of Alabama's general power to deal with conduct it regards as immoral and with the problem of illegitimacy. This appeal raises only the question whether the State may deal with these problems in the manner that it has here -- by flatly denying AFDC assistance to otherwise eligible dependent children.Alabama's argument based on its interests in discouraging immorality and illegitimacy would have been quite relevant at one time in the history of the AFDC program. However, subsequent developments clearly establish that these state interests are not presently legitimate justifications for AFDC disqualification. Insofar as this or any similar regulation is based on the State's asserted interest in discouraging illicit sexual behavior and illegitimacy, it plainly conflicts with federal law and policy.A significant characteristic of public welfare programs during the last half of the 19th century in this country was their preference for the "worthy" poor. Some poor persons were thought worthy of public assistance, and others were thought unworthy because of their supposed incapacity for "moral regeneration." H. Leyendecker, Problems and Policy in Public Assistance 45-57 (1955); Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev. 326, 327-328 (1966). This "worthy person" concept characterized the mothers' pension welfare Page 392 U. S. 321 programs, [Footnote 17] which were the precursors of AFDC. See W. Bell, Aid to Dependent Children 3-19 (1965). Benefits under the mothers' pension programs, accordingly, were customarily restricted to widows who were considered morally fit. See Bell, supra, at 7; Leyendecker, supra, at 53.In this social context, it is not surprising that both the House and Senate Committee Reports on the Social Security Act of 1935 indicate that States participating in AFDC were free to impose eligibility requirements relating to the "moral character" of applicants. H.R.Rep. No. 615, 74th Cong., 1st Sess., 24 (1935); S.Rep. No. 628, 74th Cong., 1st Sess., 36 (1935). See also 79 Cong.Rec. 5679 (statement by Representative Jenkins) (1935). During the following years, many state AFDC plans included provisions making ineligible for assistance dependent children not living in "suitable homes." See Bell, supra, at 29-136 (1965). As applied, these suitable home provisions frequently disqualified children on the basis of the alleged immoral behavior of their mothers. Ibid. [Footnote 18]In the 1940's, suitable home provisions came under increasing attack. Critics argued, for example, that such disqualification provisions undermined a mother's confidence and authority, thereby promoting continued dependency; that they forced destitute mothers into increased immorality as a means of earning money; that they were habitually used to disguise systematic racial Page 392 U. S. 322 discrimination, and that they senselessly punished impoverished children on the basis of their mothers' behavior, while inconsistently permitting them to remain in the allegedly unsuitable homes. In 1945, the predecessor of HEW produced a state letter arguing against suitable home provisions and recommending their abolition. See Bell, supra, at 51. Although 15 States abolished their provisions during the following decade, numerous other States retained them. Ibid.In the 1950's, matters became further complicated by pressures in numerous States to disqualify illegitimate children from AFDC assistance. Attempts were made in at least 18 States to enact laws excluding children on the basis of their own or their siblings' birth status. See Bell, supra, at 72-73. All but three attempts failed to pass the state legislatures, and two of the three successful bills were vetoed by the governors of the States involved. Ibid. In 1960, the federal agency strongly disapproved of illegitimacy disqualifications. See Bell, supra, at 73-74.Nonetheless, in 1960, Louisiana enacted legislation requiring, as a condition precedent for AFDC eligibility, that the home of a dependent child be "suitable," and specifying that any home in which an illegitimate child had been born subsequent to the receipt of public assistance would be considered unsuitable. Louisiana Acts, No. 251 (1960). In the summer of 1960, approximately 23,000 children were dropped from Louisiana's AFDC rolls. Bell, supra, at 137. In disapproving this legislation, then Secretary of Health, Education, and Welfare Flemming issued what is now known as the Flemming Ruling, stating that, as of July 1, 1961,"A State plan . . . may not impose an eligibility condition that would deny assistance with respect to a needy child on the basis that the home conditions Page 392 U. S. 323 in which the child lives are unsuitable, while the child continues to reside in the home. Assistance will therefore be continued during the time efforts are being made either to improve the home conditions or to make arrangements for the child elsewhere. [Footnote 19]"Congress quickly approved the Flemming Ruling, while extending until September 1, 1962, the time for state compliance. 75 Stat. 77, as amended 42 U.S.C. § 604(b). [Footnote 20] At the same time, Congress acted to implement the ruling by providing, on a temporary basis, that dependent children could receive AFDC assistance if they were placed in foster homes after a court determination that their former homes were, as the Senate Report stated, "unsuitable because of the immoral or negligent behavior of the parent." S.Rep. No. 165, Page 392 U. S. 324 87th Cong., 1st Sess., 6 (1961). See 75 Stat. 76, as amended, 42 U.S.C. § 608. [Footnote 21]In 1962, Congress made permanent the provision for AFDC assistance to children placed in foster homes and extended such coverage to include children placed in child care institutions. 76 Stat. 180 185, 193, 196, 207, 42 U.S.C. § 608. See S.Rep. No. 1589, 87th Cong., 2d Sess., 13 (1962). At the same time, Congress modified the Flemming Ruling by amending § 404(b) of the Act. As amended, the statute permits States to disqualify from AFDC aid children who live in unsuitable homes, provided they are granted other "adequate care and assistance." 76 Stat. 189, 42 U.S.C. § 604(b). See S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962).Thus, under the 1961 and 1962 amendments to the Social Security Act, the States are permitted to remove a child from a home that is judicially determined to be so unsuitable as to "be contrary to the welfare of such child." 42 U.S.C. § 608(a)(1). The States are also permitted to terminate AFDC assistance to a child living in an unsuitable home if they provide other adequate care and assistance for the child under a general welfare program. 42 U.S.C. § 604(b). See S.Rep. No. 1589, 87th Cong., 2d Sess., 14 (1962). The statutory approval of the Flemming Ruling, however, precludes the States from otherwise denying AFDC assistance to dependent children on the basis of their mothers' alleged immorality or to discourage illegitimate births.The most recent congressional amendments to the Social Security Act further corroborate that federal public welfare policy now rests on a basis considerably more Page 392 U. S. 325 sophisticated and enlightened than the "worthy person" concept of earlier times. State plans are now required to provide for a rehabilitative program of improving and correcting unsuitable homes, § 402(a), as amended by § 201(a)(1)(B), 81 Stat. 877, 42 U.S.C. § 602(a)(14) (1964 ed., Supp. III); § 406, as amended by § 201(f), 81 Stat. 880, 42 U.S.C. § 606 (1964 ed., Supp. III); to provide voluntary family planning services for the purpose of reducing illegitimate births, § 402(a), as amended by § 201(a)(1)(C), 81 Stat. 878, 42 U.S.C. § 602(a)(15) (1964 ed., Supp. III), and to provide a program for establishing the paternity of illegitimate children and securing support for them, § 402(a), as amended by § 201(a)(1)(C), 81 Stat. 878, 42 U.S.C. § 602(a)(17) (1964 ed., Supp. III).In sum, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures, rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC. [Footnote 22] In light of the Flemming Page 392 U. S. 326 Ruling and the 1961, 1962, and 1968 amendments to the Social Security Act, it is simply inconceivable, as HEW has recognized, [Footnote 23] that Alabama is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children. Alabama may deal with these problems by several different methods under the Page 392 U. S. 327 Social Security Act. But the method it has chosen plainly conflicts with the Act.IIIAlabama's second justification for its substitute father regulation is that"there is a public interest in a State's not undertaking the payment of these funds to families who, because of their living arrangements, would be in the same situation as if the parents were married, except for the marriage."In other words, the State argues that, since, in Alabama, the needy children of married couples are not eligible for AFDC aid so long as their father is in the home, it is only fair that children of a mother who cohabits with a man not her husband and not their father be treated similarly. The difficulty with this argument is that it fails to take account of the circumstance that children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: the child's father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not. We believe Congress intended the term "parent" in 406(a) of the Act, 42 U.S.C. § 606(a), to include only those persons with a legal duty of support.The Social Security Act of 1935 was part of a broad legislative program to counteract the depression. Congress was deeply concerned with the dire straits in which all needy children in the Nation then found themselves. [Footnote 24] In agreement with the President's Committee on Economic Page 392 U. S. 328 Security, the House Committee Report declared, "the core of any social plan must be the child." H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935). The AFDC program, however, was not designed to aid all needy children. The plight of most children was caused simply by the unemployment of their fathers. With respect to these children, Congress planned that "the work relief program and . . . the revival of private industry" would provide employment for their fathers. S.Rep. No. 62, 74th Cong., 1st Sess., 17 (1935). As the Senate Committee Report stated:"Many of the children included in relief families present no other problem than that of providing work for the breadwinner of the family."Ibid. Implicit in this statement is the assumption that children would, in fact, be supported by the family "breadwinner."The AFDC program was designed to meet a need unmet by programs providing employment for breadwinners. It was designed to protect what the House Report characterized as "[o]ne clearly distinguishable group of children." H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935). This group was composed of children in families without a "breadwinner," "wage earner," or "father," as the repeated use of these terms throughout the Report of the President's Committee, [Footnote 25] Committee Hearings [Footnote 26] and Reports [Footnote 27] and the floor debates [Footnote 28] makes perfectly clear. To describe the sort of breadwinner that it had in mind, Congress employed the word Page 392 U. S. 329 "parent." 49 Stat. 629 as amended, 42 U.S.C. § 606(a). A child would be eligible for assistance if his parent was deceased, incapacitated or continually absent.The question for decision here is whether Congress could have intended that a man was to be regarded as a child's parent so as to deprive the child of AFDC eligibility despite the circumstances: (1) that the man did not, in fact, support the child, and (2) that he was not legally obligated to support the child. The State correctly observes that the fact that the man in question does not actually support the child cannot be determinative, because a natural father at home may fail actually to support his child, but his presence will still render the child ineligible for assistance. On the question whether the man must be legally obligated to provide support before he can be regarded as the child's parent, the State has no such cogent answer. We think the answer is quite clear: Congress must have meant by the term "parent" an individual who owed to the child a state-imposed legal duty of support.It is clear, as we have noted, that Congress expected "breadwinners" who secured employment would support their children. This congressional expectation is most reasonably explained on the basis that the kind of breadwinner Congress had in mind was one who was legally obligated to support his children. We think it beyond reason to believe that Congress would have considered that providing employment for the paramour of a deserted mother would benefit the mother's children whom he was not obligated to support.By a parity of reasoning, we think that Congress must have intended that the children in such a situation remain eligible for AFDC assistance notwithstanding their mother's impropriety. AFDC was intended to provide economic security for children whom Congress could not reasonably expect would be provided for by simply securing Page 392 U. S. 330 employment for family breadwinners. [Footnote 29] We think it apparent that neither Congress nor any reasonable person would believe that providing employment for some man who is under no legal duty to support a child would in any way provide meaningful economic security for that child.A contrary view would require us to assume that Congress, at the same time that it intended to provide programs for the economic security and protection of all children, also intended arbitrarily to leave one class of destitute children entirely without meaningful protection. Children who are told, as Alabama has told these appellees, to look for their food to a man who is not in the least obliged to support them are without meaningful protection. Such an interpretation of congressional intent would be most unreasonable, and we decline to adopt it.Our interpretation of the term "parent" in § 406(a) is strongly supported by the way the term is used in other sections of the Act. Section 402(a)(10) requires that, effective July 1, 1952, a state plan must:"provide for prompt notice to appropriate law enforcement officials of the furnishing of aid to families with dependent children in respect of a child who has been deserted or abandoned by a parent."64 Stat. 550, 42 U.S.C. § 602(a)(10). (Emphasis added.) The "parent" whom this provision requires to be reported to law enforcement officials is surely the same "parent" whose desertion makes a child eligible for AFDC Page 392 U. S. 331 assistance in the first place. And Congress obviously did not intend that a so-called "parent" who has no legal duties of support be referred to law enforcement officials (as Alabama's own welfare regulations recognize), [Footnote 30] for the very purpose of such referrals is to institute nonsupport proceedings. See Handbook, pt. IV, §§ 8100-8149. [Footnote 31] Whatever doubt there might have been over this proposition has been completely dispelled by the 1968 amendments to the Social Security Act, which provide that the States must develop a program:"(i) in the case of a child born out of wedlock who is receiving aid to families with dependent children, to establish the paternity of such child and secure support for him, and""(ii) in the case of any child receiving such aid who has been deserted or abandoned by his parent, to secure support for such child from such parent (or from any other person legally liable for such support). . . ."§ 402(a), as amended by § 201(a)(1)(C), 81 Stat. 878, 42 U.S.C. § 602(a)(17) (1964 ed., Supp. III). (Emphasis added.) Page 392 U. S. 332 Another provision in the 1968 amendments requires the States, effective January 1, 1969, to report to HEW any"parent . . . against whom an order for the support and maintenance of such [dependent] child or children has been issued by"a court, if such parent is not making the required support payments. § 402(a), as amended by § 211(a), 81 Stat. 896, 42 U.S.C. § 602(a)(21) (1964 ed., Supp. III). (Emphasis added.) Still another amendment requires the States to cooperate with HEW in locating any parent against whom a support petition has been filed in another State, and in securing compliance with any support order issued by another State, § 402(a), as amended by § 211(a), 81 Stat. 897, 42 U.S.C. § 602(a)(22) (1964 ed., Supp. III).The pattern of this legislation could not be clearer. Every effort is to be made to locate and secure support payments from persons legally obligated to support a deserted child. [Footnote 32] The underlying policy and consistency in statutory interpretation dictate that the "parent" referred to in these statutory provisions is the same parent as that in § 406(a). The provisions seek to secure parental support in lieu of AFDC support for dependent children. Such parental support can be secured only where the parent is under a state-imposed legal duty to support the child. Children with alleged substitute parents who owe them no duty of support are entirely unprotected by these provisions. We think that these provisions corroborate the intent of Congress that the only kind of "parent," under § 406(a), whose presence in the home would provide adequate economic protection for a dependent child is one who is legally obligated to support him. Consequently, if Alabama believes it Page 392 U. S. 333 necessary that it be able to disqualify a child on the basis of a man who is not under such a duty of support, its arguments should be addressed to Congress, and not this Court. [Footnote 33]IVAlabama's substitute father regulation, as written and as applied in this case, requires the disqualification of otherwise eligible dependent children if their mother "cohabits" with a man who is not obligated by Alabama law to support the children. The regulation is therefore invalid because it defines "parent" in a manner that is inconsistent with § 406(a) of the Social Security Act. 42 U.S.C. § 606(a). [Footnote 34] In denying AFDC assistance to appellees on the basis of this invalid regulation, Alabama has breached its federally imposed obligation to furnish "aid to families with dependent children . . . with reasonable promptness to all eligible individuals. . . ." 42 U.S.C. § 602(a)(9) (1964 ed., Supp. II). Our conclusion makes unnecessary consideration of appellees' equal protection claim, upon which we intimate no views.We think it well, in concluding, to emphasize that no legitimate interest of the State of Alabama is defeated Page 392 U. S. 334 by the decision we announce today. The State's interest in discouraging illicit sexual behavior and illegitimacy may be protected by other means, subject to constitutional limitations, including state participation in AFDC rehabilitative programs. Its interest in economically allocating its limited AFDC resources may be protected by its undisputed power to set the level of benefits and the standard of need, and by its taking into account in determining whether a child is needy all actual and regular contributions to his support.All responsible governmental agencies in the Nation today recognize the enormity and pervasiveness of social ills caused by poverty. The causes of and cures for poverty are currently the subject of much debate. We hold today only that Congress has made at least this one determination: that destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute fatherAffirmed

U.S. Supreme CourtKing v. Smith, 392 U.S. 309 (1968)King v. SmithNo. 949Argued April 23, 1968Decided June 17, 1968392 U.S. 309SyllabusUnder the Aid to Families With Dependent Children Program (AFDC) established by the Social Security Act of 1935 funds are made available for a "dependent child" largely by the Federal Government, on a matching fund basis, with the participating State administering the program in conformity with the Act and regulations of the Department of Health, Education, and Welfare (HEW). Section 406(a) of the Act defines a "dependent child" as one who has been deprived of "parental" support or care by reason of the death, continued absence, or incapacity of a "parent," and, insofar as relevant in this case, aid can be granted under the provision only if a "parent" of the needy child is continually absent from the home. The Act requires that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals. . . ." 42 U.S.C. § 602(a)(9). Alabama, which, like all other States, participates in the AFDC program, in 1964 promulgated its "substitute father" regulation under which AFDC payments are denied to the children of a mother who "cohabits" in or outside her home with an able-bodied man, a "substitute father" being considered a nonabsent parent within the federal statute. The regulation applies regardless of whether the man is the children's father, is obliged to contribute to their support, or in fact does so. The AFDC aid which appellee Mrs. Smith and her four children, who reside in Alabama, for several years had received was terminated in October, 1966, solely because of the substitute father regulation on the ground that a Mr. Williams came to her home on weekends and had sexual relations with her. Mr. Williams is not the father of any of her children, is not obliged by state law to support them, and does not do so. Appellees thereupon brought this class action in the District Court against appellants, officers, and members of the Alabama Board of Pensions and Security for declaratory and injunctive relief against the substitute father regulation. The State contended that the regulation simply defines who is a nonabsent "parent" under the Act, is a legitimate way of allocating Page 392 U. S. 310 its limited resources available for AFDC assistance, discourages illicit sexual relationships and illegitimate births, and treats informal "married" couples like ordinary married couples who are ineligible for AFDC aid so long as their father is in the home. The District Court found the regulation inconsistent with the Act and the Equal Protection Clause.Held: Alabama's substitute father regulation is invalid because it defines "parent" in a manner that is inconsistent with § 406(a) of the Social Security Act, and, in denying AFDC assistance to appellees on the basis of the invalid regulation, Alabama has breached its federally imposed obligation to furnish aid to families with dependent children with reasonable promptness to all eligible individuals. Pp. 392 U. S. 320-334.(a) Insofar as Alabama's substitute father regulation (which has no relation to the need of the dependent child) is based on the State's asserted interest in discouraging illicit sexual behavior and illegitimacy, it plainly conflicts with federal law and policy. Under HEW's "Flemming Ruling," as modified by amendments to the Social Security Act, Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures, rather than measures punishing dependent children, whose protection is AFDC's paramount goal. Pp. 392 U. S. 320-327.(b) Congress meant by the term "parent" in § 406(a) of the Act an individual who owed the child a state-imposed duty of support, and Alabama may not therefore disqualify a child from AFDC aid on the basis of a substitute father who has no such duty. Pp. 392 U. S. 327-333.277 F. Supp. 31, affirmed. Page 392 U. S. 311

1985_84-1560

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.IOn December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court, charging Robert Diaz with 12 counts of murder and seeking the death penalty. The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal.Penal Code Ann. § 868 (West 1985), which requires such proceedings to be Page 478 U. S. 4 open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." [Footnote 1] The Magistrate granted the unopposed motion, finding that closure was necessary because the case had attracted national publicity and "only one side may get reported in the media." App. 22a.The preliminary hearing continued for 41 days. Most of the testimony and the evidence presented by the State was medical and scientific; the remainder consisted of testimony by personnel who worked with Diaz on the shifts when the 12 patients died. Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination. Diaz was held to answer on all charges. At the conclusion of the hearing, petitioner Press-Enterprise Page 478 U. S. 5 Company asked that the transcript of the proceedings be released. The Magistrate refused, and sealed the record.On January 21, 1983, the State moved in Superior Court to have the transcript of the preliminary hearing released to the public; petitioner later joined in support of the motion. Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity. The Superior Court found that the information in the transcript was "as factual as it could be," and that the facts were neither "inflammatory" nor "exciting," but that there was, nonetheless, "a reasonable likelihood that release of all or any part of the transcripts might prejudice defendant's right to a fair and impartial trial." Id. at 60a, 61a.Petitioner then filed a peremptory writ of mandate with the Court of Appeal. That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a hearing. Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.The California Supreme Court thereafter denied petitioner's peremptory writ of mandate, holding that there is no general First Amendment right of access to preliminary hearings. 37 Cal. 3d 772, 691 P.2d 1026 (1984). The court reasoned that the right of access to criminal proceedings recognized in Press-Enterprise Co. v. Superior Court, 464 U. S. 501 (1984) (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), extended only to actual criminal trials. 37 Cal. 3d at 776, 691 P.2d at 1028. Furthermore, the reasons that had been asserted for closing the proceedings in Press-Enterprise I and Globe -- the interests of witnesses and other third parties -- were not the same as the right asserted in this case -- the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts.Having found no general First Amendment right of access, the court then considered the circumstances in which the closure Page 478 U. S. 6 would be proper under the California access statute, Cal.Penal Code Ann. § 868 (West 1985). Under the statute, the court reasoned, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. 37 Cal. 3d at 782, 691 P.2d at 1032.We granted certiorari. 474 U.S. 899 (1985). We reverse.IIWe must first consider whether we have jurisdiction under Article III, § 2, of the Constitution. In this Court, petitioner challenges the Superior Court's original refusal to release the transcript of the preliminary hearing. As noted above, the specific relief petitioner seeks has already been granted -- the transcript of the preliminary hearing was released after Diaz waived his right to a jury trial. However, as in Globe Newspaper, supra, at 457 U. S. 603, and Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 377-378 (1979), this controversy is "capable of repetition, yet evading review.'" It can reasonably be assumed that petitioner will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review. Globe and Gannett, therefore, require the conclusion that this case is not moot. Accordingly, we turn to the merits.IIIIt is important to identify precisely what the California Supreme Court decided:"[W]e conclude that the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial. Penal code section 868 makes clear that the primary right is the right to a fair trial, and that the public's right of access must give way when there is conflict."37 Cal. 3d at 781, 691 P.2d at 1032. Page 478 U. S. 7It is difficult to disagree in the abstract with that court's analysis balancing the defendant's right to a fair trial against the public right of access. It is also important to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Only recently, in Waller v. Georgia, 467 U. S. 39 (1984), for example, we considered whether the defendant's Sixth Amendment right to an open trial prevented the closure of a suppression hearing over the defendant's objection. We noted that the First Amendment right of access would in most instances attach to such proceedings, and that"the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public."Id. at 467 U. S. 46. When the defendant objects to the closure of a suppression hearing, therefore, the hearing must be open unless the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Id. at 467 U. S. 47.Here, unlike Waller, the right asserted is not the defendant's Sixth Amendment right to a public trial, since the defendant requested a closed preliminary hearing. Instead, the right asserted here is that of the public under the First Amendment. See Gannett, supra, at 443 U. S. 397 (POWELL, J., concurring). The California Supreme Court concluded that the First Amendment was not implicated, because the proceeding was not a criminal trial, but a preliminary hearing. However, the First Amendment question cannot be resolved solely on the label we give the event, i.e., "trial" or otherwise, particularly where the preliminary hearing functions much like a full-scale trial. Page 478 U. S. 8In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "tradition of accessibility implies the favorable judgment of experience,'" Globe Newspaper, 457 U.S. at 457 U. S. 605 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 448 U. S. 589 (1980) (BRENNAN, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public.In Press-Enterprise I, for example, we observed that,"since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown."464 U.S. at 464 U. S. 505. In Richmond Newspapers, we reviewed some of the early history of England's open trials from the day when a trial was much like a "town meeting." In the days before the Norman Conquest, criminal cases were brought before "moots," a collection of the freemen in the community. The public trial, "one of the essential qualities of a court of justice" in England, was recognized early on in the Colonies. There were risks, of course, inherent in such a "town meeting" trial -- the risk that it might become a gathering moved by emotions or passions growing from the nature of a crime; a "lynch mob" ambience is hardly conducive to calm, reasoned decisionmaking based on evidence. Plainly, the modern trial with jurors open to interrogation for possible bias is a far cry from the "town meeting trial" of ancient English practice. Yet even our modern procedural protections have their origin in the ancient common law principle which provided, not for closed proceedings, but rather for rules of conduct for those who attend trials. Richmond Newspapers, supra, at 448 U. S. 567.Second, in this setting, the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. Globe Newspaper, supra, at 457 U. S. 606. Although many governmental processes operate best under public scrutiny, it takes little Page 478 U. S. 9 imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 441 U. S. 218 (1979). Other proceedings plainly require public access. In Press-Enterprise I, we summarized the holdings of prior cases, noting that openness in criminal trials, including the selection of jurors, "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." 464 U.S. at 464 U. S. 501.These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. But even when a right of access attaches, it is not absolute. Globe Newspaper Co. v. Superior Court, supra, at 457 U. S. 606. While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity. [Footnote 2] In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. In Press-Enterprise I, we stated:"[T]he presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can Page 478 U. S. 10 determine whether the closure order was properly entered."464 U.S. at 464 U. S. 510.IVAThe considerations that led the Court to apply the First Amendment right of access to criminal trials in Richmond Newspapers and Globe, and the selection of jurors in Press-Enterprise I, lead us to conclude that the right of access applies to preliminary hearings as conducted in California.First, there has been a tradition of accessibility to preliminary hearings of the type conducted in California. Although grand jury proceedings have traditionally been closed to the public and the accused, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Long ago, in the celebrated trial of Aaron Burr for treason, for example, with Chief Justice Marshall sitting as trial judge, the probable cause hearing was held in the Hall of the House of Delegates in Virginia, the courtroom being too small to accommodate the crush of interested citizens. United States v. Burr, 25 F. Cas. 1 (No. 14,692) (CC Va. 1807). From Burr until the present day, the near-uniform practice of state and federal courts has been to conduct preliminary hearings in open court. [Footnote 3] As we noted in Gannett, Page 478 U. S. 11 several States following the original New York Field Code of Criminal Procedure published in 1850 have allowed preliminary hearings to be closed on the motion of the accused. 443 U.S. at 443 U. S. 390-391. But even in these States, the proceedings are presumptively open to the public, and are closed only for cause shown. [Footnote 4] Open preliminary hearings, therefore, have been accorded "the favorable judgment of experience.'" Globe, 457 U.S. at 457 U. S. 605.The second question is whether public access to preliminary hearings, as they are conducted in California, plays a particularly significant positive role in the actual functioning of the process. We have already determined in Richmond Page 478 U. S. 12 Newspapers, Globe, and Press-Enterprise I that public access to criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. California preliminary hearings are sufficiently like a trial to justify the same conclusion.In California, to bring a felon to trial, the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. Even when the accused has been indicted by a grand jury, however, he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. Hawkins v. Superior Court, 22 Cal. 3d 584, 586 P.2d 918 (1978). The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. Cal.Penal Code Ann. §§ 859-866 (West 1985), § 1538.5 (West Supp.1986). If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.It is true that, unlike a criminal trial, the California preliminary hearing cannot result in the conviction of the accused, and the adjudication is before a magistrate or other judicial officer, without a jury. But these features, standing alone, do not make public access any less essential to the proper functioning of the proceedings in the overall criminal justice process. Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding. See Waller v. Georgia, 467 U.S. at 467 U. S. 46-47. As the California Supreme Court stated in San Jose Mercury-News v. Municipal Court, 30 Cal. 3d 498, 511, 638 P.2d 655, 663 (1982), the preliminary hearing in many cases provides "the sole occasion for public observation of the criminal justice system." See also Richmond Newspapers, 448 U.S. at 448 U. S. 572.Similarly, the absence of a jury, long recognized as "an inestimable safeguard against the corrupt or overzealous prosecutor Page 478 U. S. 13 and against the compliant, biased, or eccentric judge," Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 156 (1968), makes the importance of public access to a preliminary hearing even more significant."People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."Richmond Newspapers, 448 U.S. at 448 U. S. 572.Denying the transcript of a 41-day preliminary hearing would frustrate what we have characterized as the "community therapeutic value" of openness. Id. at 448 U. S. 570. Criminal acts, especially certain violent crimes, provoke public concern, outrage, and hostility."When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions."Press-Enterprise I, 464 U.S. at 464 U. S. 509. See also H. Weihofen, The Urge to Punish 130-131 (1956); T. Reik, The Compulsion to Confess (1959). In sum:"The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."Press-Enterprise I, supra, at 464 U. S. 508 (emphasis in original).We therefore conclude that the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California.BSince a qualified First Amendment right of access attaches to preliminary hearings in California under Cal.Penal Code Ann. § 858 et seq. (West 1985), the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values, Page 478 U. S. 14 and is narrowly tailored to serve that interest." Press-Enterprise I, supra, at 464 U. S. 510. See also Globe Newspaper, 457 U.S. at 457 U. S. 606-607. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Press-Enterprise I, supra; Richmond Newspapers, supra, at 448 U. S. 581.The California Supreme Court, interpreting its access statute, concluded that "the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice." 37 Cal. 3d at 781, 691 P.2d at 1032. As the court itself acknowledged, the "reasonable likelihood" test places a lesser burden on the defendant than the "substantial probability" test which we hold is called for by the First Amendment. See ibid.; see also id. at 783, 691 P.2d at 1033 (Lucas, J., concurring and dissenting). Moreover, that court failed to consider whether alternatives short of complete closure would have protected the interests of the accused.In Gannett, we observed:"Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U. S. 368. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial."443 U.S. at 443 U. S. 378. Page 478 U. S. 15But this risk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress. Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And even if closure were justified for the hearings on a motion to suppress, closure of an entire 41-day proceeding would rarely be warranted. The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right. And any limitation must be "narrowly tailored to serve that interest." Press-Enterprise I, supra, at 464 U. S. 510.The standard applied by the California Supreme Court failed to consider the First Amendment right of access to criminal proceedings. Accordingly, the judgment of the California Supreme Court is reversed.It is so ordered

U.S. Supreme CourtPress-Enterprise Co. v. Superior Ct., 478 U.S. 1 (1986)Press-Enterprise Co. v. Superior CourtNo. 84-1560Argued February 26, 1986Decided June 30, 1986478 U.S. 1SyllabusCalifornia filed a complaint against a nurse charging him with murdering 12 patients by administering massive doses of the heart drug lidocaine. The Magistrate granted the defendant's motion to exclude the public from the preliminary hearing on the complaint under a California statute that requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." At the conclusion of the 41-day preliminary hearing, the Magistrate refused petitioner's request that the transcript of the proceedings be released. Thereafter, the State, supported by petitioner and opposed by the defendant, moved unsuccessfully in the California Superior Court to have the transcript released. Petitioner then filed a peremptory writ of mandate with the California Court of Appeal. Meanwhile, the defendant waived his right to a jury trial, and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ. The California Supreme Court also denied the writ, holding that there is no general First Amendment right of access to preliminary hearings, and that. under the California statute, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. Page 478 U. S. 2Held:1. Even though the Superior Court ultimately released the transcript in question, the case is not moot, because the controversy is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court, 457 U. S. 596; Gannett Co. v. DePasquale, 443 U. S. 368. Thus, this Court has jurisdiction. P. 478 U. S. 6.2. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California. First, there has been a tradition of public accessibility to preliminary hearings of the type conducted in California. As opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Second, public access to such preliminary hearings is essential to the proper functioning of the criminal justice system. This proper functioning is not made any less essential by the fact that a preliminary hearing cannot result in a conviction and the adjudication is before a magistrate without a jury. The absence of a jury makes the importance of public access even more significant. Pp. 478 U. S. 6-13.3. Since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U. S. 501, 464 U. S. 510. If the interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed unless there is a "substantial probability" that that right will be prejudiced by publicity that closure would prevent, and that reasonable alternatives to closure cannot adequately protect the right. Here, the "reasonable likelihood" test applied by the California Supreme Court placed a lesser burden on the defendant than the "substantial probability" test required by the First Amendment. Moreover, the court failed to consider whether alternatives short of closure would have protected the defendant's interests. Pp. 478 U. S. 13-15.37 Cal. 3d 773, 691 P.2d 1026, reversed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in Part II of which REHNQUIST, J., joined, post, p. 478 U. S. 15. Page 478 U. S. 3

1997_96-1923

property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud." 11 U. S. C. § 523(a)(2)(A). The issue in this case is whether § 523(a)(2)(A) bars the discharge of treble damages awarded on account of the debtor's fraudulent acquisition of "money, property, services, or ... credit," or whether the exception only encompasses the value of the "money, property, services, or ... credit" the debtor obtains through fraud. We hold that § 523(a)(2)(A) prevents the discharge of all liability arising from fraud, and that an award of treble damages therefore falls within the scope of the exception.IPetitioner owned several residential properties in and around Hoboken, New Jersey, one of which was subject to a local rent control ordinance. In 1989, the Hoboken Rent Control Administrator determined that petitioner had been charging rents above the levels permitted by the ordinance, and ordered him to refund to the affected tenants, who are respondents in this Court, $31,382.50 in excess rents charged. Petitioner did not comply with the order.Petitioner subsequently filed for relief under Chapter 7 of the Bankruptcy Code, seeking to discharge his debts. The tenants filed an adversary proceeding against petitioner in the Bankruptcy Court, arguing that the debt owed to them arose from rent payments obtained by "actual fraud" and that the debt was therefore nondischargeable under 11 U. S. C. § 523(a)(2)(A). They also sought treble damages and attorney's fees and costs pursuant to the New Jersey Consumer Fraud Act. See N. J. Stat. Ann. §§56:8-2, 56:8-19 (West 1989).Following a bench trial, the Bankruptcy Court ruled in the tenants' favor. In re Cohen, 185 B. R. 171 (1994); 185 B. R. 180 (1995). The court found that petitioner had committed "actual fraud" within the meaning of 11 U. S. C. § 523(a)(2)(A) and that his conduct amounted to an "unconscionable com-216mercial practice" under the New Jersey Consumer Fraud Act. As a result, the court awarded the tenants treble damages totaling $94,147.50, plus reasonable attorney's fees and costs. Noting that courts had reached conflicting conclusions on whether § 523(a)(2)(A) excepts from discharge punitive damages (such as the treble damages at issue here), the Bankruptcy Court sided with those decisions holding that § 523(a)(2)(A) encompasses all obligations arising out of fraudulent conduct, including both punitive and compensatory damages. * 185 B. R., at 188-189. The District Court affirmed. 191 B. R. 599 (1996).The Court of Appeals for the Third Circuit affirmed in a divided opinion. In re Cohen, 106 F.3d 52 (1997). After accepting the finding of the Bankruptcy Court that petitioner had committed fraud under § 523(a)(2)(A) and the New Jersey Consumer Fraud Act, the Court of Appeals turned to whether the treble damages portion of petitioner's liability represents a "debt ... for money, property, services, or ... credit, to the extent obtained by ... actual fraud." § 523(a)(2)(A). The court observed that the term "debt," defined in the Code as a "right to payment," § 101(5)(A), plainly encompasses all liability for fraud, whether in the form of punitive or compensatory damages. And the phrase "to the extent obtained by," the court reasoned, modifies "money, property, services, or ... credit," and therefore distinguishes not between compensatory and punitive damages awarded for fraud but instead between money or property obtained through fraudulent means and money or property obtained through nonfraudulent means. Id., at 57. Here, the court concluded, the entire award of $94,147.50 (plus attorney's fees and costs) resulted from money obtained*The Bankruptcy Court characterized an award of treble damages under the New Jersey Consumer Fraud Act as punitive in nature, see 185 B. R., at 188, and the Court of Appeals assumed as much without deciding the question, In re Cohen, 106 F.3d 52, 55, n. 2 (CA3 1997). That issue does not affect our analysis, and we have no occasion to revisit it here.217through fraud and is therefore nondischargeable. Id., at 59. Judge Greenberg dissented, concluding that treble damages are not encompassed by § 523(a)(2)(A) because they "do not reflect money, property, or services the debtor 'obtained.''' Id., at 60.As the Court of Appeals recognized, id., at 56, its interpretation of § 523(a)(2)(A) is in accord with that of the Eleventh Circuit but in conflict with that of the Ninth Circuit. Compare In re St. Laurent, 991 F.2d 672, 677-681 (CAll 1993), with In re Levy, 951 F.2d 196, 198-199 (CA9 1991). Bankruptcy courts have likewise reached differing conclusions on whether § 523(a)(2)(A) prevents the discharge in bankruptcy of punitive damages awarded on account of fraud. Compare In re George, 205 B. R. 679, 682 (Bkrtcy. Ct. Conn. 1997) (punitive damages not dischargeable); In re Spicer, 155 B. R. 795, 801 (Bkrtcy. Ct. DC) (same), aff 'd, 57 F.3d 1152 (CADC 1995), cert. denied, 516 U. S. 1043 (1996); In re Winters, 159 B. R. 789, 790 (Bkrtcy. Ct. ED Ky. 1993) (same), with In re Bozzano, 173 B. R. 990, 997-999 (Bkrtcy. Ct. MDNC 1994) (punitive damages dischargeable); In re Sciscoe, 164 B. R. 86, 89 (Bkrtcy. Ct. SD Ind. 1993) (same); In re Brady, 154 B. R. 82, 85 (Bkrtcy. Ct. WD Mo. 1993) (same). We noted the issue without resolving it in Grogan v. Garner, 498 U. S. 279, 282, n. 2 (1991). We granted certiorari to address the conflict in the lower courts, 521 U. S. 1152 (1997), and we now affirm.IIThe Bankruptcy Code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy animating the Code of affording relief only to an "honest but unfortunate debtor." Grogan v. Garner, 498 U. S., at 287 (internal quotation marks omitted); see id., at 290; Brown v. Felsen, 442 U. S. 127, 138 (1979). Section 523(a)(2)(A) continues the tradition, excepting from discharge "any debt ... for money, property, serv-218ices, or an extension, renewal, or refinancing of credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud."The most straightforward reading of § 523(a)(2)(A) is that it prevents discharge of "any debt" respecting "money, property, services, or ... credit" that the debtor has fraudulently obtained, including treble damages assessed on account of the fraud. See Field v. Mans, 516 U. S. 59, 61, 64 (1995) (describing § 523(a)(2)(A) as barring discharge of debts "resulting from" or "traceable to" fraud). First, an obligation to pay treble damages satisfies the threshold condition that it constitute a "debt." A "debt" is defined in the Code as "liability on a claim," § 101(12), a "claim" is defined in turn as a "right to payment," § 101(5)(A), and a "right to payment," we have said, "is nothing more nor less than an enforceable obligation." Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559 (1990). Those definitions "refiec[t] Congress' broad ... view of the class of obligations that qualify as a 'claim' giving rise to a 'debt,'" id., at 558, and they plainly encompass treble damages: An award of treble damages is an "enforceable obligation" of the debtor, and the creditor has a corresponding "right to payment."Moreover, the phrase "to the extent obtained by" in § 523(a)(2)(A), as the Court of Appeals recognized, does not impose any limitation on the extent to which "any debt" arising from fraud is excepted from discharge. "[T]o the extent obtained by" modifies "money, property, services, or ... credit"-not "any debt"-so that the exception encompasses "any debt ... for money, property, services, or ... credit, to the extent [that the money, property, services, or ... credit is] obtained by" fraud. The phrase thereby makes clear that the share of money, property, etc., that is obtained by fraud gives rise to a nondischargeable debt. Once it is established that specific money or property has been obtained by fraud, however, "any debt" arising therefrom is excepted from dis-219charge. In this case, petitioner received rent payments from respondents for a number of years, of which $31,382.50 was obtained by fraud. His full liability traceable to that sum-$94,147.50 plus attorney's fees and costs-thus falls within the exception.Petitioner does not dispute that the term "debt" encompasses treble damages or that the phrase "to the extent obtained by" modifies "money, property, services, or ... credit." He nonetheless contends that "any debt ... for money, property, services, or ... credit, to the extent obtained by" fraud does not include treble damages awarded in a fraud action. Petitioner submits that § 523(a)(2)(A) excepts from discharge only the portion of the damages award in a fraud action corresponding to the value of the "money, property, services, or ... credit" the debtor obtained by fraud. The essential premise of petitioner's argument is that a "debt for" money, property, or services obtained by fraud is necessarily limited to the value of the money, property, or services received by the debtor. Petitioner, in this sense, interprets "debt for "-or alternatively, "liability on a claim for" -in § 523(a)(2)(A) to mean "liability on a claim to obtain," i. e., "liability on a claim to obtain the money, property, services, or credit obtained by fraud," thus imposing a restitutionary ceiling on the extent to which a debtor's liability for fraud is nondischargeable.Petitioner's reading of "debt for" in § 523(a)(2)(A), however, is at odds with the meaning of the same phrase in parallel provisions. Section 523(a) defines several categories of liabilities that are excepted from discharge, and the words "debt for" introduce many of them, viz., "debt ... for a tax or a customs duty ... with respect to which a return ... was not filed," § 523(a)(1)(B)(i), "debt ... for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny," § 523(a)(4), "debt ... for willful and malicious injury by the debtor to another entity," § 523(a)(6), and "debt ... for death or personal injury caused by the debtor's op-220eration of a motor vehicle if such operation was unlawful because the debtor was intoxicated," § 523(a)(9). None of these use "debt for" in the restitutionary sense of "liability on a claim to obtain"; it makes little sense to speak of "liability on a claim to obtain willful and malicious injury" or "liability on a claim to obtain fraud or defalcation." Instead, "debt for" is used throughout to mean "debt as a result of," "debt with respect to," "debt by reason of," and the like, see American Heritage Dictionary 709 (3d ed. 1992); Black's Law Dictionary 644 (6th ed. 1990), connoting broadly any liability arising from the specified object, see Davenport, supra, at 563 (characterizing § 523(a)(7), which excepts from discharge certain debts "for a fine, penalty, or forfeiture" as encompassing "debts arising from a 'fine, penalty, or forfeiture' ").Because each use of "debt for" in § 523(a) serves the identical function of introducing a category of nondischargeable debt, the presumption that equivalent words have equivalent meaning when repeated in the same statute, e. g., Ratzlaf v. United States, 510 U. S. 135, 143 (1994), has particular resonance here. And contrary to petitioner's submission, it is of no moment that "debt for" in § 523(a)(2)(A) has as its immediate object a commodity (money, property, etc.), but in some of the other exceptions has as its immediate object a description of misconduct, e. g., § 523(a)(4) ("debt for fraud or defalcation [by a] fiduciary"). Section 523(a)(2)(A) also describes misconduct ("false pretenses, a false representation, or actual fraud"), even if it first specifies the result of that conduct (money, property, etc., obtained). The exception in § 523(a)(9) is framed in the same way, initially specifying an outcome as the immediate object of "debt for" ("death or personal injury"), and subsequently describing the misconduct giving rise to that outcome ("operation of a motor vehicle [while] intoxicated"). It is clear that "debt for" in that provision means "debt arising from" or "debt on account of," and it follows that "debt for" has the same meaning in § 523(a)(2)(A). When construed in the context of the statute221as a whole, then, § 523(a)(2)(A) is best read to prohibit the discharge of any liability arising from a debtor's fraudulent acquisition of money, property, etc., including an award of treble damages for the fraud.The history of the fraud exception reinforces our reading of § 523(a)(2)(A). The Bankruptcy Act of 1898 prohibited discharge of "judgments in actions for frauds, or obtaining property by false pretenses or false representations," § 17, 30 Stat. 550, and an award of punitive damages for fraud plainly fits in the category of "judgments in actions for fraud." The exception was broadened in 1903 to include all "liabilities for obtaining property by false pretenses or false representations," § 5, 32 Stat. 798, language that, a fortiori, encompasses liability for punitive damages. See Brown, 442 U. S., at 138 (interpreting the provision as prohibiting discharge of "all debts arising out of conduct specified" therein); In re St. Laurent, 991 F. 2d, at 679 (noting "practice of holding debts for punitive damages nondischargeable" under this exception "if the compensatory damages ... were themselves nondischargeable"). And the Bankruptcy Act of 1978 enacted a "substantially similar" provision, Brown, supra, at 129, n. 1, barring discharge of "any debt ... for obtaining money, property, services, or ... credit, by ... false pretenses, a false representation, or actual fraud." 11 U. S. C. § 523(a)(2)(A) (1982 ed.).As the result of a slight amendment to the language in 1984, referred to in the legislative history only as a "stylistic change," see S. Rep. No. 98-65, p. 80 (1983), § 523(a)(2)(A) now excepts from discharge "any debt ... for money, property, services, or ... credit, to the extent obtained by ... false pretenses, a false representation, or actual fraud." We, however, "will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure," Davenport, 495 U. S., at 563, and the change to the language of § 523(a)(2)(A) in 1984 in no way signals an intention to narrow the established222scope of the fraud exception along the lines suggested by petitioner. If, as petitioner contends, Congress wished to limit the exception to that portion of the debtor's liability representing a restitutio nary-as opposed to a compensatory or punitive-recovery for fraud, one would expect Congress to have made unmistakably clear its intent to distinguish among theories of recovery in this manner. See, e. g., § 523(a)(7) (barring discharge of debts "for a fine, penalty, or forfeiture payable to ... a governmental unit," but only if the debt "is not compensation for actual pecuniary loss").The conclusion that § 523(a)(2)(A) bars the discharge of all liability arising from fraud is further borne out by the implications of petitioner's alternative construction. The various exceptions to discharge in § 523(a) reflect a conclusion on the part of Congress "that the creditors' interest in recovering full payment of debts in these categories outweigh[s] the debtors' interest in a complete fresh start." Grogan, 498 U. S., at 287. But if, as petitioner would have it, the fraud exception only barred discharge of the value of any money, property, etc., fraudulently obtained by the debtor, the objective of ensuring full recovery by the creditor would be ill served. Limiting the exception to the value of the money or property fraudulently obtained by the debtor could prevent even a compensatory recovery for losses occasioned by fraud. For instance, if a debtor fraudulently represents that he will use a certain grade of shingles to roof a house and is paid accordingly, the cost of repairing any resulting water damage to the house could far exceed the payment to the debtor to install the shingles. See In re Church, 69 B. R. 425, 427 (Bkrtcy. Ct. ND Tex. 1987). The United States, as amicus curiae, posits another example along these lines, involving "a debtor who fraudulently represents to aircraft manufacturers that his steel bolts are aircraft quality [and] obtains sales of $5,000" for the bolts, but "the fraud causes a multi-million dollar airplane to crash." Brief for United States as Amicus Curiae 21.223As petitioner acknowledges, his gloss on § 523(a)(2)(A) would allow the debtor in those situations to discharge any liability for losses caused by his fraud in excess of the amount he initially received, leaving the creditor far short of being made whole. And the portion of a creditor's recovery that exceeds the value of the money, property, etc., fraudulently obtained by the debtor-and that hence would be dischargeable under petitioner's view-might include compensation not only for losses brought about by fraud but also for attorney's fees and costs of suit associated with establishing fraud. But see § 523(d) (allowing award of attorney's fees and costs to the debtor where a creditor requests dischargeability determination under § 523(a)(2) for a consumer debt that is ultimately found to be dischargeable). Those sorts of results would not square with the intent of the fraud exception. As we have observed previously in addressing different issues surrounding the scope of that exception, it is "unlikely that Congress ... would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud." Grogan, supra, at 287.In short, the text of § 523(a)(2)(A), the meaning of parallel provisions in the statute, the historical pedigree of the fraud exception, and the general policy underlying the exceptions to discharge all support our conclusion that "any debt ... for money, property, services, or ... credit, to the extent obtained by" fraud encompasses any liability arising from money, property, etc., that is fraudulently obtained, including treble damages, attorney's fees, and other relief that may exceed the value obtained by the debtor. Under New Jersey law, the debt for fraudulently obtaining $31,382.50 in rent payments includes treble damages and attorney's fees and costs, and consequently, petitioner's entire debt of $94,147.50 (plus attorney's fees and costs) is nondischargeable in bankruptcy. Accordingly, we affirm the judgment of the Court of Appeals.It is so ordered

OCTOBER TERM, 1997SyllabusCOHEN V. DE LA CRUZ ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 96-1923. Argued January 20, 1998-Decided March 24,1998After the local rent control administrator ordered petitioner to refund $31,382.50 in excessive rents he had charged respondent tenants, he sought to discharge his debts under Chapter 7 of the Bankruptcy Code (Code). The tenants filed an adversary proceeding, arguing that the debt owed to them was nondischargeable under 11 U. S. C. § 523(a)(2)(A) of the Code, which excepts from discharge "any debt ... for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... actual fraud." They also sought treble damages, attorney's fees, and costs under the New Jersey Consumer Fraud Act. The Bankruptcy Court ruled in their favor, finding that petitioner had committed "actual fraud" within the meaning of § 523(a)(2)(A) and that his conduct violated the New Jersey law. The court therefore awarded the tenants treble damages totaling $94,147.50, plus attorney's fees and costs. The District Court affirmed, as did the Third Circuit, which held that debts resulting from fraud are nondischargeable in their entirety under § 523(a)(2)(A), and that the award of treble damages (plus attorney's fees and costs) in this case was therefore nondischargeable.Held: Because § 523(a)(2)(A) excepts from discharge all liability arising from fraud, treble damages (plus attorney's fees and costs) awarded on account of the debtor's fraud fall within the scope of the exception. The most straightforward reading of § 523(a)(2)(A) is that it prevents discharge of "any debt" respecting "money, property, services, or ... credit" that the debtor has fraudulently obtained. See Field v. Mans, 516 U. S. 59, 61, 64. First, an obligation to pay treble damages satisfies the threshold condition that it constitute a "debt." That word is defined as liability on a "claim," § 101(12), which in turn is defined as a "right to payment," § 101(5)(A), which this Court has said means an enforceable obligation, Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559. An award of treble damages is an enforceable obligation of the debtor, and the creditor has a corresponding right to payment. Moreover, the phrase "to the extent obtained by" in § 523(a)(2)(A) modifies "money, property, services, or ... credit" -not "any debt" -so that the exception encompasses "any debt ... for money, property, [etc.], to the extent [that the money, property, etc., is] obtained by" fraud. The phrase thereby makes clear that the share of money, property, etc., so214obtained gives rise to a nondischargeable debt. Once it is established that specific money or property has been obtained by fraud, however, "any debt" arising therefrom is excepted from discharge.The Court rejects petitioner's argument that a "debt for" money, property, etc., is necessarily limited to the value of the "money, property, services, or ... credit" the debtor obtained by fraud, such that a restitutionary ceiling would be imposed on the extent to which a debtor's liability for fraud is nondischargeable. That argument is at odds with the meaning of "debt for" in parallel exceptions to discharge set forth in § 523(a), which use "debt for" to mean "debt as a result of," "debt with respect to," "debt by reason of," and the like. The Court's reading of § 523(a)(2)(A) is also reinforced by the fraud exception's history. Moreover, § 523(a)'s various exceptions from discharge reflect Congress' conclusion that the creditors' interest in recovering full payment of debts in these categories outweighs the debtors' interest in a complete fresh start, see Grogan v. Garner, 498 U. S. 279, 287. But petitioner's construction of the fraud exception would leave creditors short of being made whole whenever the loss to the creditor from the fraud exceeds the value obtained by the debtor. Because, under New Jersey law, the debt for fraudulently obtaining $31,382.50 in rent payments includes treble damages and attorney's fees and costs, petitioner's entire debt of $94,147.50 (plus attorney's fees and costs) is nondischargeable in bankruptcy. Pp. 217-223.106 F.3d 52, affirmed.O'CONNOR, J., delivered the opinion for a unanimous Court.Donald B. Ayer argued the cause for petitioner. With him on the briefs were James E. Anklam, Howard J. Bashman, and John Francis Gough.Gregory G. Diebold argued the cause for respondents.With him on the brief was Brian Wolfman.Jeffrey A. Lamken argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, William Kanter, and Al isa B. Klein.JUSTICE O'CONNOR delivered the opinion of the Court. Section 523(a)(2)(A) of the Bankruptcy Code (Code) excepts from discharge in bankruptcy "any debt ... for money,215Full Text of Opinion

1982_81-1983

JUSTICE POWELL delivered the opinion of the Court.The issue is whether the Secretary of Health and Human Services may rely on published medical-vocational guidelines to determine a claimant's right to Social Security disability benefits.IThe Social Security Act defines "disability" in terms of the effect a physical or mental impairment has on a person's ability Page 461 U. S. 460 to function in the workplace. It provides disability benefits only to persons who are unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 81 Stat. 868, as amended, 42 U.S.C. § 423(d)(1)(A). And it specifies that a person must"not only [be] unable to do his previous work but [must be unable], considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work."42 U.S.C. § 423(d)(2)(A).In 1978, the Secretary of Health and Human Services promulgated regulations implementing this definition. See 43 Fed.Reg. 55349 (1978) (codified, as amended, at 20 CFR pt. 404, subpt. P (1982)). The regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work. See 20 CFR § 404.1520(d) (1982) (referring to impairments listed at 20 CFR pt. 404, subpt. P, app. 1). A claimant who establishes that he suffers from one of these impairments will be considered disabled without further inquiry. Ibid. If a claimant suffers from a less severe impairment, the Secretary must determine whether the claimant retains the ability to perform either his former work or some less demanding employment. If a claimant can pursue his former occupation, he is not entitled to disability benefits. See § 404.1520(e). If he cannot, the Secretary must determine whether the claimant retains the capacity to pursue less demanding work. See § 404.1520(f)(1).The regulations divide this last inquiry into two stages. First, the Secretary must assess each claimant's present job qualifications. The regulations direct the Secretary to consider the factors Congress has identified as relevant: physical ability, age, education, and work experience. [Footnote 1] See 42 Page 461 U. S. 461 U.S.C. § 423(d)(2)(A); 20 CFR § 404.1520(f) (1982). Second, she must consider whether jobs exist in the national economy that a person having the claimant's qualifications could perform. 20 CFR §§ 404.1520(f), 404.1566-404.1569 (1982).Prior to 1978, the Secretary relied on vocational experts to establish the existence of suitable jobs in the national economy. After a claimant's limitations and abilities had been determined at a hearing, a vocational expert ordinarily would testify whether work existed that the claimant could perform. Although this testimony often was based on standardized guides, see 43 Fed.Reg. 9286 (1978), vocational experts frequently were criticized for their inconsistent treatment of similarly situated claimants. See Santise v. Schweiker, 676 F.2d 925, 930 (CA3 1982); J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 78-79 (1978). To improve both the uniformity and efficiency [Footnote 2] of this determination, the Secretary promulgated medical-vocational guidelines as part of the 1978 regulations. See 20 CFR pt. 404, subpt. P, app. 2 (1982).These guidelines relieve the Secretary of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy. They consist of a matrix of the four factors identified by Congress Page 461 U. S. 462 -- physical ability, age, education, and work experience [Footnote 3] -- and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. [Footnote 4] Where a claimant's qualifications correspond to the job requirements identified by a rule, [Footnote 5] the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled.IIIn 1979, Calmen Campbell applied for disability benefits because a back condition and hypertension prevented her from continuing her work as a hotel maid. After her application was denied, she requested a hearing de novo before an Administrative Law Judge. [Footnote 6] He determined that her back Page 461 U. S. 463 problem was not severe enough to find her disabled without further inquiry, and accordingly considered whether she retained the ability to perform either her past work or some less strenuous job. App. to Pet. for Cert. 28a. He concluded that, even though Campbell's back condition prevented her from returning to her work as a maid, she retained the physical capacity to do light work. Ibid. In accordance with the regulations, he found that Campbell was 52 years old, that her previous employment consisted of unskilled jobs, and that she had a limited education. Id. at 28a-29a. He noted that Campbell, who had been born in Panama, experienced difficulty in speaking and writing English. She was able, however, to understand and read English fairly well. App. 42. Relying on the medical-vocational guidelines, the Administrative Law Judge found that a significant number of jobs existed that a person of Campbell's qualifications could perform. Accordingly, he concluded that she was not disabled. [Footnote 7] App. to Pet. for Cert. 29a.This determination was upheld by both the Social Security Appeals Council, id. at 16a, and the District Court for the Eastern District of New York, id. at 15a. The Court of Appeals for the Second Circuit reversed. Campbell v. Secretary of Dept. of Health and Human Services, 665 F.2d 48 (1981). It accepted the Administrative Law Judge's determination that Campbell retained the ability to do light work. And it did not suggest that he had classified Campbell's age, Page 461 U. S. 464 education, or work experience incorrectly. The court noted, however, that it"has consistently required that "the Secretary identify specific alternative occupations available in the national economy that would be suitable for the claimant," and that "these jobs be supported by a job description clarifying the nature of the job, [and] demonstrating that the job does not require' exertion or skills not possessed by the claimant."" Id. at 53 (quoting Decker v. Harris, 647 F.2d 291, 298 (CA2 1981)). The court found that the medical-vocational guidelines did not provide the specific evidence that it previously had required. It explained that, in the absence of such a showing,"the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines."665 F.2d at 53. The court concluded that, because the Secretary had failed to introduce evidence that specific alternative jobs existed, the determination that Campbell was not disabled was not supported by substantial evidence. Id. at 54.We granted certiorari to resolve a conflict among the Courts of Appeals. [Footnote 8] Schweiker v. Campbell, 457 U.S. 1131 (1982). We now reverse. Page 461 U. S. 465IIIThe Secretary argues that the Court of Appeals' holding effectively prevents the use of the medical-vocational guidelines. By requiring her to identify specific alternative jobs in every disability hearing, the court has rendered the guidelines useless. An examination of both the language of the Social Security Act and its legislative history clearly demonstrates that the Secretary may proceed by regulation to determine whether substantial gainful work exists in the national economy. Campbell argues in response that the Secretary has misperceived the Court of Appeals' holding. Campbell reads the decision as requiring only that the Secretary give disability claimants concrete examples of the kinds of factual determinations that the administrative law judge will be making. This requirement does not defeat the guidelines' purpose; it ensures that they will be applied only where appropriate. Accordingly, respondent argues that we need not address the guidelines' validity.AThe Court of Appeals held that,"[i]n failing to show suitable available alternative jobs for Ms. Campbell, the Secretary's finding of 'not disabled' is not supported by substantial evidence."665 F.2d at 54. It thus rejected the proposition that "the guidelines provide adequate evidence of a claimant's ability to perform a specific alternative occupation," id. at 53, and remanded for the Secretary to put into evidence "particular types of jobs suitable to the capabilities of Ms. Campbell," id. at 54. The court's requirement that additional evidence be introduced on this issue prevents the Secretary from putting the guidelines to their intended use and implicitly calls their validity into question. [Footnote 9] Accordingly, Page 461 U. S. 466 we think the decision below requires us to consider whether the Secretary may rely on medical-vocational guidelines in appropriate cases.The Social Security Act directs the Secretary to"adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same"in disability cases. 42 U.S.C. § 405(a). As we previously have recognized, Congress has "conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act." Schweiker v. Gray Panthers, 453 U. S. 34, 453 U. S. 43 (1981); see Batterton v. Francis, 432 U. S. 416, 432 U. S. 425 (1977). Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, [Footnote 10] our review is limited to determining whether the regulations promulgated exceeded the Secretary's statutory authority and whether they are arbitrary and capricious. Herweg v. Ray, 455 U. S. 265, 455 U. S. 275 (1982); Schweiker v. Gray Panthers, supra, at 453 U. S. 44. Page 461 U. S. 467We do not think that the Secretary's reliance on medical-vocational guidelines is inconsistent with the Social Security Act. It is true that the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing. See 42 U.S.C. § 423(d)(2)(A) (specifying consideration of each individual's condition); 42 U.S.C. § 405(b) (1976 ed., Supp. V) (disability determination to be based on evidence adduced at hearing). But this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The Court has recognized that, even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration. See FPC v. Texaco Inc., 377 U. S. 33, 377 U. S. 41-44 (1964); United States v. Storer Broadcasting Co., 351 U. S. 192, 351 U. S. 205 (1956). A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding. See FPC v. Texaco Inc., supra, at 377 U. S. 44.The Secretary's decision to rely on medical-vocational guidelines is consistent with Texaco and Storer. As noted above, in determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must assess each claimant's individual abilities and then determine whether jobs exist that a person having the claimant's qualifications could perform. The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them. [Footnote 11] The second Page 461 U. S. 468 inquiry requires the Secretary to determine an issue that is not unique to each claimant -- the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (1966) (en banc).As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary's use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious.BWe now consider Campbell's argument that the Court of Appeals properly required the Secretary to specify alternative available jobs. Campbell contends that such a showing informs claimants of the type of issues to be established at the hearing, and is required by both the Secretary's regulation, 20 CFR § 404.944 (1982), and the Due Process Clause.By referring to notice and an opportunity to respond, see 665 F.2d at 53-54, the decision below invites the interpretation given it by respondent. But we do not think that the decision fairly can be said to present the issues she raises. [Footnote 12] Page 461 U. S. 469 The Court of Appeals did not find that the Secretary failed to give sufficient notice in violation of the Due Process Clause or any statutory provision designed to implement it. See 42 U.S.C. § 405(b) (1976 ed., Supp. V) (requiring that disability claimants be given "reasonable notice and [an] opportunity for a hearing"). Nor did it find that the Secretary violated any duty imposed by regulation. See 20 CFR § 404.944 (1982) (requiring the administrative law judge to "loo[k] fully into the issues"). Rather, the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law -- that, when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond. [Footnote 13] See 5 U.S.C. § 556(e); McDaniel v. Celebrezze, 331 F.2d 426 (CA4 1964). Page 461 U. S. 470This principle is inapplicable, however, when the agency has promulgated valid regulations. Its purpose is to provide a procedural safeguard: to ensure the accuracy of the facts of which an agency takes notice. But when the accuracy of those facts already has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection. [Footnote 14] See, e.g., Rivers v. Schweiker, 684 F.2d 1144, 1156 (CA5 1982); Broz v. Schweiker, 677 F.2d 1351, 1362 (CA11 1982); Torres v. Secretary of Health and Human Services, 677 F.2d 167, 169 (CA1 1982).IVThe Court of Appeals' decision would require the Secretary to introduce evidence of specific available jobs that respondent could perform. It would limit severely her ability to rely on the medical-vocational guidelines. We think the Secretary reasonably could choose to rely on these guidelines in appropriate cases, rather than on the testimony of a vocational expert in each case. Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtHeckler v. Campbell, 461 U.S. 458 (1983)Heckler v. CampbellNo. 81-1983Argued February 28, 1983Decided May 16, 1983461 U.S. 458SyllabusTo be entitled to disability benefits under the Social Security Act, a person must not only be unable to perform his former work but must also be unable, considering his age, education, and work experience, to perform any other kind of gainful work that exists in the national economy. Prior to 1978, in cases where a claimant was found unable to pursue his former occupation, but his disability was not so severe as to prevent his pursuing any gainful work, the Secretary of Health and Human Services (Secretary) relied on vocational experts to determine whether jobs existed in the national economy that the claimant could perform. In 1978, to improve the uniformity and efficiency of such determinations, the Secretary promulgated medical-vocational guidelines setting forth rules to establish whether such jobs exist. If a claimant's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant can perform. If such work exists, the claimant is not considered disabled. After respondent's application for disability benefits was denied, she requested a hearing before an Administrative Law Judge, who, relying on the guidelines, found that jobs existed that a person of respondent's qualifications could perform, and accordingly concluded that she was not disabled. Both the Social Security Appeals Council and the District Court upheld this determination. But the Court of Appeals reversed, holding that the guidelines did not provide adequate evidence of specific alternative jobs that respondent could perform, that, in the absence of such evidence, respondent was deprived of any chance to present evidence that she could not perform the types of jobs identified by the guidelines, and that therefore the determination that she was not disabled was not supported by substantial evidence.Held: The Secretary's use of the medical-vocational guidelines to determine a claimant's right to disability benefits does not conflict with the Social Security Act, nor are the guidelines arbitrary or capricious. Pp. 461 U. S. 465-470.(a) While the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence, this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The determination as to whether jobs exist that a person having Page 461 U. S. 459 the claimant's qualifications could perform requires the Secretary to determine a factual issue that is not unique to each claimant, and may be resolved as fairly through rulemaking as by introducing testimony of vocational experts at each disability hearing. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder an already overburdened agency. Pp. 461 U. S. 465-468.(b) The principle of administrative law that, when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond is inapplicable where, as in this case, the agency has promulgated valid regulations. When the accuracy of such facts has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection. Pp. 461 U. S. 468-470.665 F.2d 48, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 461 U. S. 470. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 461 U. S. 473

1964_111

MR. JUSTICE HARLAN delivered the opinion of the Court.Mrs. Auguste Schaeche was adjudged incompetent in 1953 and committed to a California state mental institution operated by petitioner. California Welfare and Institutions Code, § 6650 provides in pertinent part:"The husband, wife, father, mother, or children of a mentally ill person or inebriate, and the administrators of their estates, and the estate of such mentally ill person or inebriate, shall be liable for his care, support, and maintenance in a state institution of which he is an inmate. The liability of such persons and estates shall be a joint and several liability. . . ."Ellinor Vance, the daughter of Mrs. Schaeche, died in 1960, and respondent was appointed administratrix of her estate. Petitioner filed a claim for $7,554.22 with respondent, that being the cost of support furnished to the incompetent from 1956 to 1960, which was rejected by respondent. Petitioner then filed suit for that amount, and obtained judgment on the pleadings. The District Page 380 U. S. 196 Court of Appeal affirmed, 29 Cal. Rptr. 312, but the Supreme Court of California reversed, finding that § 6650 "violates the basic constitutional guaranty of equal protection of the law. . . ." 60 Cal. 2d 716, 717, 36 Cal. Rptr. 488, 388 P.2d 720. We granted certiorari to consider the important questions involved, 379 U.S. 811. After plenary briefing and argument, however, we are unable to say with requisite assurance that this Court has jurisdiction in the premises.The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, [Footnote 1] or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with Page 380 U. S. 197 any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. [Footnote 2] Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was, in fact, based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow, we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co., 309 U. S. 551.The first mention of any specific constitutional provision in this case appears to have been made in respondent's reply brief in the State District Court of Appeal, and it related solely to the State Constitution. [Footnote 3] That court disposed of the constitutional claim in one paragraph, [Footnote 4] citing Department of Mental Hygiene v. McGilvery, 50 Cal. 2d 742, 754-761, 329 P.2d 689, 695-699. In McGilvery, rehearing was granted by the California Supreme Court to consider the claim that"an absolute liability on a mother to pay for the care, support and maintenance of her mentally ill daughter in a state institution, Page 380 U. S. 198 is a deprivation of property without equal protection of law and without just compensation in violation of the state and federal Constitutions."50 Cal. 2d at 747, 329 P.2d at 691. On the pages cited by the District Court of Appeal, the California Supreme Court, in McGilvery, had concluded:"Article I, section 11 of the California Constitution requires that all laws of a general nature have a uniform operation. This has been held generally to require a reasonable classification of persons upon whom the law is to operate. The classification must be one that is founded upon some natural or intrinsic or constitutional distinction. [Citations.] Likewise, those within the class, that is, those persons similarly situated with respect to that law, must be subjected to equal burdens. [Citation.] The clause of the Fourteenth Amendment to the federal Constitution which prohibits a state from denying to 'any person within its jurisdiction the equal protection of the laws' has been similarly construed. [Footnote 5]"An examination of the opinion of the California Supreme Court in the case before us does not indicate whether that court relied on the State Constitution alone, the Federal Constitution alone, or both; and we would have jurisdiction to review only if the federal ground had been the sole basis for the decision or the State Constitution was interpreted under what the state court deemed the compulsion of the Federal Constitution. [Footnote 6]The court first discussed Department of Mental Hygiene v. Hawley, 59 Cal. 2d 247, 28 Cal. Rptr. 718, 379 P.2d 22, a case decided under the Fourteenth Amendment, and then stated, Page 380 U. S. 199 "This holding is dispositive of the issue before us." 60 Cal. 2d at 720, 36 Cal. Rptr. at 490, 388 P.2d at 722.The court went on, however, to discuss other cases. After noting that, in Department of Mental Hygiene v. Shane, 142 Cal. App. 2d Supp. 881, 299 P.2d 747 (relied on in McGilvery), there was no "mention of either the United States or the California Constitutions," the court distinguished both Shane and McGilvery as cases in which the constitutional claims were not presented. 60 Cal. 2d at 721, 36 Cal. Rptr. at 491, 388 P.2d at 723. It then discussed Hoeper v. Tax Comm'n, 284 U. S. 206, which dealt with reasonable classification, and compared a similar treatment in Estate of Tetsubumi Yano, 188 Cal. 645, 656-657 [14], 206 P. 995. In Yano, the California Supreme Court found an alien land law in violation of the Equal Protection Clause of the Fourteenth Amendment, the Privileges and Immunities Clause, and of the California Constitution. The court's discussion of the Equal Protection Clause, however, was confined to pp. 654-656 of the opinion, 206 P. pp. 999-1000, and, in headnote [14] on page 656 (cited by the court in the present case) the court dealt principally with the state constitutional ground.After examining the statutory framework of the support statutes, the court in this case finally concluded with the following statement:"A statute obviously violates the equal protection clause if it selects one particular class of persons for a species of taxation, and no rational basis supports such classification. (See Blumenthal v. Board of Medical Examiners (1962) 57 Cal. 2d 228, 237 [13], 18 Cal. Rptr. 501, 368 P.2d 101; Bilyeu v. State Employees' Retirement System (1962) 58 Cal. 2d 618, 623 [2], 25 Cal. Rptr. 562, 375 P.2d 442.) Such a concept for the state's taking of a free man's Page 380 U. S. 200 property manifestly denies him equal protection of the law."60 Cal. 2d at 722-723, 36 Cal. Rptr. at 492, 388 P.2d at 724. Blumenthal v. Board of Medical Examiners, 57 Cal. 2d 228, 18 Cal. Rptr. 501, 368 P.2d 101, involved an attack on a licensing statute under both the Fourteenth Amendment and §§ 11 and 21 of Article I of the California Constitution. See 57 Cal. 2d at 232, 18 Cal. Rptr. at 503, 368 P.2d at 103. The court did not specifically rely on one constitutional provision, but merely held the statute unconstitutional. Bilyeu v. State Employees' Retirement System, 58 Cal. 2d 618, 25 Cal. Rptr. 562, 375 P.2d 442, involved an attack on a classification of state employees subject to retirement benefits. At headnote [2] of the opinion, cited by the court in Kirchner, appears the following language:"There is no constitutional requirement of uniform treatment, but only that there be a reasonable basis for each classification. [Footnote 7]"The use of such language suggests that the court may have been adverting to the California constitutional provision that "[a]ll laws of a general nature shall have a uniform operation." Calif.Const. Art. I, § 11.On the basis of the foregoing, it is clear that we cannot say with the requisite certainty that the California judgment rested solely on the Fourteenth Amendment, or, amounting to the same thing, that, in striking the statute down under the State Constitution, the court below acted under what it conceived to be the compulsion of the Federal Constitution (cf. Jankovich v. Indiana Toll Road Comm'n, 379 U. S. 487, 379 U. S. 492); one or the other determination would be necessary to our exercising jurisdiction. While the ambiguity of the opinion might normally lead us to dismiss the writ of certiorari as improvidently granted, we think the preferable course is to leave the way Page 380 U. S. 201 open for obtaining clarification from the California Supreme Court (Minnesota v. National Tea Co., supra), in view of the importance of and widespread interest in the case. [Footnote 8] Unfortunately, because of California law, we cannot hold the case on our calendar until the parties submit a clarifying certificate from the California Supreme Court, see Dixon v. Duffy, 344 U. S. 143, 344 U. S. 145, but we can obviate undue delay by vacating the judgment of the California Supreme Court, directing that our mandate issue forthwith, and giving leave to the parties to file a new petition for certiorari incorporating by reference the record and briefs now on file in this Court, supplemented by such additional papers as may be necessary or appropriate if, on further proceedings, the California Supreme Court holds that its judgment does not rest on an adequate independent nonfederal ground.The judgment of the Supreme Court of California is vacated, and the cause remanded to that court for such further proceedings as may be appropriate under state law. The judgment and mandate of this Court shall issue forthwith.Vacated and remanded

U.S. Supreme CourtDepartment of Mental Hygiene v. Kirchner, 380 U.S. 194 (1965)Department of Mental Hygiene of California v. KirchnerNo. 111Argued January 19, 1965Decided March 8, 1965380 U.S. 194SyllabusPetitioner sued the administratrix of the estate of a deceased daughter of an adjudged incompetent for the cost of support furnished the incompetent in a state mental institution, and recovered a judgment which was reversed by the Supreme Court of California. That court found that the state statute creating support liability "violates the basic constitutional guaranty of equal protection of the law. . . ."Held: since the California court did not specify whether its holding was based on the Equal Protection Clause of the United States Constitution or the equivalent provision of the state constitution, or both, this Court cannot be certain that the judgment below was not based on an adequate and independent nonfederal ground. In light of the doubt as to this Court's jurisdiction, the judgment is vacated and the case remanded. Pp. 380 U. S. 195-201.60 Cal. 2d 716, 381 P.2d 720, judgment vacated and case remanded. Page 380 U. S. 195

1967_796

MR. JUSTICE DOUGLAS delivered the opinion of the Court.One Holder, a member of respondent unions, filed with the National Labor Relations Board an unfair labor practice charge, alleging that Local 22 had violated § 8(b)(1)(A) of the National Labor Relations Act, [Footnote 1] 61 Page 391 U. S. 420 Stat. 141, 29 U.S.C. § 158(b)(1)(A), by causing his employer to discriminate against him because he had engaged in protected activity with respect to his employment. [Footnote 2] The filing of this charge followed an accusation by Holder to Local 22 that its president had violated the constitution of the International. The local decided in favor of its president, but Holder did not pursue the intra-union appeals procedure that was available to him, and filed the unfair labor practice charge instead, based on the same alleged violations by the president.Section 5 of Article V of the constitution of the International Union, which was binding on Local 22, contained the following provision relative to grievances of union members:"Every member . . . considering himself . . . aggrieved by any action of this Union, the [General Page 391 U. S. 421 Executive Board], a National Officer, a Local or other subdivision of this Union shall exhaust all remedies and appeals within the Union, provided by this Constitution, before he shall resort to any court or other tribunal outside of the Union."While Holder's charge was pending before the Board, Local 22 lodged a complaint in internal union proceedings against Holder alleging he had violated § 5 of Article V of the International's constitution by filing his charge with the Board before he had exhausted his internal remedies. After a hearing before Local 22, Holder was found guilty and expelled from both respondent unions. He then appealed to the General Executive Board of the International, which affirmed the local's action on October 7, 1964.On October 28, 1964, Holder filed a second charge with the Board, claiming his expulsion for filing the first charge was unlawful. That charge is the basis of the instant case.A complaint issued, and the Board found that the respondent unions had violated § 8(b)(1)(A) of the Act by expelling Holder for filing a charge with the Board without first having exhausted the intra-union procedures. 159 N.L.R.B. 1065. It issued a remedial order, which the Court of Appeals refused to enforce. 379 F.2d 702. The case is here on writ of certiorari. 389 U.S. 1034.The important question is whether, consistent with the applicable federal statutes, a union may penalize one of its members for seeking the aid of the Board without exhausting all internal union remedies. There is a threshold question, however, concerning the adequacy of Holder's first or original charge to the Board against respondents. Holder charged discrimination practiced against him because, to use the words of the Regional Director as he paraphrased the charge in the complaint, Page 391 U. S. 422 Holder had engaged "in certain protected activity" of an unspecified nature "with respect to his employment." It is pointed out that § 8(b)(1)(A) protects only "the exercise of rights guaranteed by section 7"; [Footnote 3] and that § 7 "says nothing about any right to file charges with the Board." 379 F.2d at 706. That, however, is not the issue. The charge by Holder that he was discriminated against because he had engaged "in certain protected activity" was a sufficient way to allege an impairment of § 7 rights. "The charge is not proof. It merely sets in motion the machinery of an inquiry." NLRB v. Indiana & Michigan Electric Co., 318 U. S. 9, 318 U. S. 18. Moreover, no issue was raised before the Board concerning the nature of the "protected activity." The answer of respondents, insofar as the original charge is concerned, said only that the charge made by Holder to the Board was based upon precisely the same facts as those on which his internal union charges against the president of the Local had been based. We must, therefore, assume that the initial charge was one within the ambit of § 7, and so plainly within it that no party undertook to question it.The main issue in the case is whether Holder could be expelled for filing the charge with the Board without first having exhausted "all remedies and appeals within the Union" [Footnote 4] as provided in § 5 of Article V of the constitution, already quoted. Page 391 U. S. 423Section 8(b)(1)(A) in its proviso [Footnote 5] preserves to a union "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein."The Court of Appeals concluded that, while this proviso would not permit a union to expel a member because he filed an unfair labor practice charge against the union, it permits a rule which gives the union "a fair opportunity to correct its own wrong before the injured member should have recourse to the Board." 379 F.2d at 707.We held in NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, that § 8(b)(1)(A) does not prevent a union from imposing fines on members who cross a picket line created to implement an authorized strike. The strike, we said, "is the ultimate weapon in labor's arsenal for achieving agreement upon its terms" and the power to fine or expel a strike-breaker "is essential if the union is to be an effective bargaining agent.'" Id. at 388 U. S. 181. Page 391 U. S. 424Thus, § 8(b) (1)(A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned. But where a union rule penalizes a member for filing an unfair labor practice charge with the Board, other considerations of public policy come into play.Section 10(b) of the Act, 61 Stat. 146, 29 U.S.C. § 160(b), forbids issuance of a complaint based on conduct occurring more than six months prior to filing of the charge -- a provision promoting promptness. A proceeding by the Board is not to adjudicate private rights, but to effectuate a public policy. The Board cannot initiate its own proceedings; implementation of the Act is dependent "upon the initiative of individual persons." Nash v. Florida Industrial Comm'n, 389 U. S. 235, 389 U. S. 238. The policy of keeping people "completely free from coercion," ibid., against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. A restriction such as we find in § 5 of Article V of the International's constitution is contrary to that policy, as it is applied here. A healthy interplay of the forces governed and protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances. [Footnote 6] Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization. That was the philosophy of the Board in the Skura case, Local 18, International Union of Operating Engineers, 148 N.L.R.B. 679, and we agree that the overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are involved. Page 391 U. S. 425In the present case, a whole complex of public policy issues was raised by Holder's original charge. It implicated not only the union, but the employer. The employer might also have been made a party and comprehensive and coordinated remedies provided. Those issues cannot be fully explored in an internal union proceeding. There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached, and an airing of the grievance never had. The Court of Appeals recognized that this might be the consequence, and said that resort to an intra-union remedy would not be required if it "would impose unreasonable delay or hardship upon the complainant." 379 F.2d at 707.The difficulty is that a member would have to guess what a court ultimately would hold. If he guessed wrong and filed the charge with the Board without exhausting internal union procedures, he would have no recourse against the discipline of the union. That risk alone is likely to chill the exercise of a member's right to a Board remedy and induce him to forgo his grievance or pursue a futile union procedure. That is the judgment of the Board, and we think it comports with the policy of the Act. That is to say, the proviso in § 8(b)(1)(A) that unions may design their own rules respecting "the acquisition or retention of membership" is not so broad as to give the union power to penalize a member who invokes the protection of the Act for a matter that is in the public domain and beyond the internal affairs of the union.The Court of Appeals found support for its contrary position in § 101(a)(4) of the Labor-Management Reporting Page 391 U. S. 426 and Disclosure Act of 1959. [Footnote 7] 7 Stat. 522, 29 U.S.C. § 411(a)(4). While that provision prohibits a union from limiting the right of a member to institute an action in any court or in a proceeding before any administrative agency, it provides that a member "may be required to exhaust reasonable hearing procedures" "not to exceed a four-month lapse of time."We conclude that "may be required" is not a grant of authority to unions more firmly to police their members, but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency. [Footnote 8] Page 391 U. S. 427The legislative history is not very illuminating. Some members of the House who spoke indicated that there was room for judicial discretion whether to remit the member to available internal union remedies. [Footnote 9] In the Senate, the fear was expressed that the new section would give unions power to punish their members for filing charges with the Board prior to exhaustion of their internal remedies. [Footnote 10] In the Senate, the continuance of union grievance procedures under the new section was emphasized. [Footnote 11] It was indeed expressly stated by Senator John F. Kennedy reporting from the Conference Committee: [Footnote 12]"The 4-month limitation in the House bill also relates to restrictions imposed by unions, rather than the rules of judicial administration or the action of Government agencies."Yet it plainly appears from those speaking for the Conference Report that a member was to be permitted to complain to the Board even before the end of the four-month period. Congressman Griffin reported: [Footnote 13]"[T]he proviso was not intended to limit in any way the right of a union member under the Labor-Management Relations Act of 1947, as amended, to file unfair labor practice charges against a union, or the right of the NLRB to entertain such charges, even though a 4-month period may not have elapsed."And, on the Senate side, Senator Kennedy said that the proviso was not intended"to invalidate the considerable Page 391 U. S. 428 body of State and Federal court decisions of many years standing which require, or do not require, the exhaustion of internal remedies prior to court intervention depending upon the reasonableness of such requirements in terms of the facts and circumstances of a particular case."(Emphasis added.) Nor, he said, was it intended to prohibit "the National Labor Relations Board . . . from entertaining charges by a member against a labor organization even though 4 months has not elapsed." [Footnote 14]We conclude that unions were authorized to have hearing procedures for processing grievances of members, provided those procedures did not consume more than four months of time; but that a court or agency might consider whether a particular procedure was "reasonable" and entertain the complaint even though those procedures had not been "exhausted." We also conclude, for reasons stated earlier in this opinion, that, where the complaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance procedure is not ground for expulsion from a union. We hold that the Board properly entertained the complaint of Holder and that its order should be enforced.Reversed

U.S. Supreme CourtNLRB v. Marine Workers, 391 U.S. 418 (1968)National Labor Relations Board v. Industrial Union ofMarine & Shipbuilding Workers of AmericaNo. 796Argued April 30, 1968Decided May 27, 1968391 U.S. 418SyllabusHolder, a member of respondent unions, submitted charges to Local 22 that its president had violated the International's constitution. The local decided in its president's favor. Holder, without pursuing the intra-union appeals procedure contained in § 5 of the International's constitution, filed with the NLRB an unfair labor practice complaint claiming violation of § 8(b)(1)(A) of the National Labor Relations Act based on the same alleged violations of the president and charging that Local 22 had caused his employer to discriminate against him because he had engaged in "protected activity" with respect to his employment. While Holder's complaint was pending before the NLRB, Local 22 brought intra-union charges that Holder had violated § 5 of the International's constitution by filing the charge with the NLRB before exhausting his internal remedies, held a hearing, found Holder guilty, and expelled him from respondent unions. Holder then filed a second charge with the NLRB (the basis of this case), which found that respondent unions had violated § 8(b)(1)(A) by expelling Holder for filing the charge with the NLRB without having first exhausted intra-union procedures. The NLRB issued a remedial order. The Court of Appeals refused to enforce that order, relying on § 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959, which, while prohibiting a union from limiting a member's right to resort to a tribunal, provides that a member "may be required to exhaust reasonable hearing procedures" before doing so, "not to exceed a four-month lapse of time."Held:1. Holder's charge that he was discriminated against because he had engaged "in certain protected activity" constituted a sufficient allegation of impairment of § 7 rights. Pp. 391 U. S. 421-422.2. Where a union member's complaint of grievance does not concern an internal union matter, but, as in this case, touches a Page 391 U. S. 419 part of the public domain covered by the National Labor Relations Act, failure to resort to any intra-union grievance procedure before filing an unfair labor practice complaint with the NLRB is not ground for expulsion from the union. Pp. 391 U. S. 422-425, 391 U. S. 428.3. Though § 101(a)(4) of the Labor-Management Reporting and Disclosure Act authorizes union hearing procedures for processing members' grievances, provided those procedures do not consume more than four months, a court or agency may consider whether a particular procedure is "reasonable" and entertain the complaint even though those procedures have not been "exhausted." Pp. 391 U. S. 425-428.379 F.2d 702, reversed.

1986_85-998

JUSTICE WHITE delivered the opinion of the Court.We granted the Government's petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house's curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials' intrusion onto the area immediately surrounding the barn. 782 F.2d 1226 (1986). We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals.IRespondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U.S.C. § 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent's apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or "beepers," in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by Page 480 U. S. 297 Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the "beeper" a few days later. The agents were able to track the "beeper" in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter's pickup truck, which was carrying the container, arrived at respondent's ranch. Aerial photographs of the ranch property showed Carpenter's truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the "beeper" in the hot plate stirrer that they had lost in early September, and determined that the stirrer was on respondent's ranch property.Respondent's ranch comprised approximately 198 acres, and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates.On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent's ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns -- crossing over a barbed wire fence -- and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another Page 480 U. S. 298 barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn. [Footnote 1] At this point, the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory.On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent's ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980. [Footnote 2] The officers arrested respondent Page 480 U. S. 299 and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house.The District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant, and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent's conviction. United States v. Dunn, 674 F.2d 1093. The court concluded that the search warrant had been issued based on information obtained during the officers' unlawful warrantless entry onto respondent's ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court's reasoning that "the barn in question was within the curtilage of the residence, and was within the protective ambit of the fourth amendment." Id. at 1100. We granted the Government's petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of Oliver v. United States, 466 U. S. 170 (1984). 467 U.S. 1201 (1984). On remand, the Court of Appeals reaffirmed its judgment that the evidence seized pursuant to the warrant should have been suppressed, but altered the legal basis supporting this conclusion: the large barn was not within the curtilage of the house, but, by standing outside the barn and peering into the structure, the officers nonetheless violated respondent's "reasonable expectation of privacy in his barn and its contents." 766 F.2d 880, 886 (1985). The Government again filed a petition for certiorari. On January 17, 1986, before this Court acted on the petition, the Court of Appeals recalled and vacated its judgment issued on remand, stating that it would enter a new judgment in due course. 781 F.2d 52. On February 4, 1986, the Court of Appeals reinstated the original opinion rendered in 1982, asserting that "[u]pon studied reflection, we now conclude and hold that the barn was inside the protected curtilage." 782 F.2d at 1227. The Government thereupon submitted a supplement to its petition for certiorari, revising the question presented Page 480 U. S. 300 to whether the barn lay within the curtilage of the house. We granted the petition, 477 U.S. 903, and now reverse.IIThe curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States, 265 U. S. 57, 265 U. S. 59 (1924), held that the Fourth Amendment's protection accorded "persons, houses, papers, and effects" did not extend to the open fields, the Court observing that the distinction between a person's house and open fields "is as old as the common law. 4 Bl. Comm. 223, 225, 226." [Footnote 3]We reaffirmed the holding of Hester in Oliver v. United States, supra. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. 466 U.S. at 466 U. S. 180. We identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the sanctity of a man's home and the privacies of life.'" Ibid. (quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886)). Page 480 U. S. 301Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See California v. Ciraolo, 476 U. S. 207, 476 U. S. 221 (1986) (POWELL, J., dissenting) (citing Care v. United States, 231 F.2d 22, 25 (CA10), cert. denied, 351 U.S. 932 (1956); United States v. Van Dyke, 643 F.2d 992, 993-994 (CA4 1981)). [Footnote 4] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration -- whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. Page 480 U. S. 302First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. 766 F.2d at 882-883; 782 F.2d at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house.Second. It is also significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in Oliver, supra, that"for most homes, the boundaries of the curtilage will be clearly marked, and the conception defining the curtilage -- as the area around the home to which the activity of home life extends -- is a familiar one easily understood from our daily experience."466 U.S. at 466 U. S. 182, n. 12. Viewing the physical layout of respondent's ranch in its entirety, see 782 F.2d at 1228, it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn -- the front portion itself enclosed by a fence -- and the area immediately surrounding it, stands out as a distinct portion of respondent's ranch, quite separate from the residence.Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, "apparently," in the words of the Court of Appeals, "for the unloading of its contents." 674 F.2d at 1096. When on respondent's property, the officers' suspicion was further directed toward the barn because of "a very strong odor" of phenylacetic acid. App. 15. As the DEA agent approached the barn, he "could hear a motor running, like a pump motor of some sort. . . ." Id. at 17. Furthermore, the officers detected an "extremely strong" odor of phenylacetic acid coming from a small crack in the Page 480 U. S. 303 wall of the barn. Ibid. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong . . . [and the officers] could hear the motor running very loudly." Id. at 18. When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home.Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent's property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.IIIRespondent submits an alternative basis for affirming the judgment below, one that was presented to, but ultimately not relied upon by, the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of Oliver v. United States, 466 U. S. 170 (1984).We may accept, for the sake of argument, respondent's submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers' conduct and the ensuing search and seizure violated the Constitution. Oliver reaffirmed the precept, established in Hester, that an open field is neither a "house" nor an "effect," and, therefore,"the government's intrusion upon the open fields is not one of those 'unreasonable searches' Page 480 U. S. 304 proscribed by the text of the Fourth Amendment."466 U.S. at 466 U. S. 177. The Court expressly rejected the argument that the erection of fences on an open field -- at least of the variety involved in those cases and in the present case -- creates a constitutionally protected privacy interest. Id. at 466 U. S. 182-183."[T]he term 'open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither 'open' nor a 'field' as those terms are used in common speech."Id. at 466 U. S. 180, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions.Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in California v. Ciraolo, 476 U. S. 207 (1986), we held that warrantless naked-eye aerial observation of a home's curtilage did not violate the Fourth Amendment. We based our holding on the premise that the Fourth Amendment "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." Id. at 476 U. S. 213. Importantly, we deemed it irrelevant that the police observation at issue Page 480 U. S. 305 was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Ibid. Finally, the plurality opinion in Texas v. Brown, 460 U. S. 730, 460 U. S. 739-740 (1983), notes that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured . . . by the Fourth Amendment." The holding in United States v. Lee, 274 U. S. 559, 274 U. S. 563 (1927), is of similar import. Here, the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment.The officers lawfully viewed the interior of respondent's barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent's premises. Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtUnited States v. Dunn, 480 U.S. 294 (1987)United States v. DunnNo. 85-998Argued January 20, 1987Decided March 3, 1987480 U.S. 294SyllabusIn 1980, Drug Enforcement Administration agents, having discovered that one Carpenter had bought large quantities of chemicals and equipment used to make controlled substances, placed tracking "beepers" in some of the equipment and one of the chemical containers, which, when transported in Carpenter's truck, led the agents to respondent's ranch. Aerial photographs of the ranch showed the truck backed up to a barn behind the ranch house. The ranch was completely encircled by a perimeter fence, and contained several interior barbed wire fences, including one around the house approximately 50 yards from the barn, and a wooden fence enclosing the front of the barn, which had an open overhang and locked, waist-high gates. Without a warrant, officers crossed the perimeter fence, several of the barbed wire fences, and the wooden fence in front of the barn. They were led there by the smell of chemicals, and, while there, could hear a motor running inside. They did not enter the barn but stopped at the locked gate and shined a flashlight inside, observing what they took to be a drug laboratory. They then left the ranch, but entered it twice the next day to confirm the laboratory's presence. They obtained a search warrant and executed it, arresting respondent and seizing chemicals and equipment, as well as bags of amphetamines they discovered in the house. After the District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant, respondent and Carpenter were convicted of conspiracy to manufacture controlled substances and related offenses. However, the Court of Appeals reversed, holding that the barn was within the residence's curtilage, and therefore within the Fourth Amendment's protective ambit.Held:1. The area near the barn is not within the curtilage of the house for Fourth Amendment purposes. Extent-of-curtilage questions should be resolved with particular reference to the following four factors, at least to the extent that they bear upon whether the area claimed to be curtilage is so intimately tied to the home itself that it should be placed under the home's "umbrella" of protection: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken Page 480 U. S. 295 by the resident to protect the area from observation by passersby. Applying the first factor to the instant case, the barn's substantial distance from the fence surrounding the house (50 yards) and from the house itself (60 yards) supports no inference that it should be treated as an adjunct of the house. Second, the barn did not lie within the fence surrounding the house, which plainly demarks the area that is part and parcel of the house, but stands out as a distinct and separate portion of the ranch. Third, it is especially significant that the officers possessed objective data indicating that the barn was not being used as part of respondent's home, in that the aerial photographs showed that Carpenter's truck was backed up to the barn, apparently to unload its contents, which included the chemical container, and the officers detected strong chemical odors coming from, and heard a motor running in, the barn. Fourth, respondent did little to protect the barn area from observation by those standing outside, the ranch's fences being of the type used to corral livestock, not to ensure privacy. Pp. 480 U. S. 300-303.2. Respondent's contention that, because the barn is essential to his business, he possessed an expectation of privacy in it and its contents independent from his home's curtilage, is without merit. Even assuming that the barn could not be entered lawfully without a warrant, respondent's argument ignores the fact that, prior to obtaining the warrant, the officers never entered the barn, but conducted their observations from the surrounding open fields after crossing over respondent's ranch-style fences. The Court's prior decisions have established that the Government's intrusion upon open fields is not an unreasonable search; that the erection of fences on an open field -- at least of the type involved here -- does not create a constitutionally protected privacy interest; that warrantless naked-eye observation of an area protected by the Fourth Amendment is not unconstitutional; and that shining a flashlight into a protected area, without probable cause to search the area, is permissible. Pp. 480 U. S. 303-305.782 F.2d 1226, reversed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, and in all but the paragraph headed "Third" in Part II of which SCALIA, J., joined. SCALIA, J., filed an opinion concurring in part, post, p. 480 U. S. 305. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 480 U. S. 305. Page 480 U. S. 296

1983_82-792

JUSTICE WHITE delivered the opinion of the Court.Section 901(a) of Title IX of the Education Amendments of 1972, Pub.L. 92-318, 86 Stat. 373, 20 U.S.C. § 1681(a), prohibits sex discrimination in "any education program or activity receiving Federal financial assistance," [Footnote 1] and § 902 directs agencies awarding most types of assistance to promulgate regulations to ensure that recipients adhere to that prohibition. Compliance with departmental regulations may be secured by termination of assistance "to the particular program, or part thereof, in which . . . noncompliance has Page 465 U. S. 558 been . . . found" or by "any other means authorized by law." § 902, 20 U.S.C. § 1682. [Footnote 2]This case presents several questions concerning the scope and operation of these provisions and the regulations established by the Department of Education. We must decide, first, whether Title IX applies at all to Grove City College, which accepts no direct assistance but enrolls students who receive federal grants that must be used for educational purposes. If so, we must identify the "education program or activity" at Grove City that is "receiving Federal financial assistance" and determine whether federal assistance to that Page 465 U. S. 559 program may be terminated solely because the College violates the Department's regulations by refusing to execute an Assurance of Compliance with Title IX. Finally, we must consider whether the application of Title IX to Grove City infringes the First Amendment rights of the College or its students.IPetitioner Grove City College is a private, coeducational, liberal arts college that has sought to preserve its institutional autonomy by consistently refusing state and federal financial assistance. Grove City's desire to avoid federal oversight has led it to decline to participate, not only in direct institutional aid programs, but also in federal student assistance programs under which the College would be required to assess students' eligibility and to determine the amounts of loans, work-study funds, or grants they should receive. [Footnote 3] Grove City has, however, enrolled a large number of students who receive Basic Educational Opportunity Grants (BEOG's), 20 U.S.C. § 1070a (1982 ed.), under the Department of Education's [Footnote 4] Alternate Disbursement System (ADS). [Footnote 5] Page 465 U. S. 560The Department concluded that Grove City was a "recipient" of "Federal financial assistance" as those terms are defined in the regulations implementing Title IX, 34 CFR §§ 106.2(g)(1), (h) (1982), [Footnote 6] and, in July, 1977, it requested that the College execute the Assurance of Compliance required by 34 CFR § 106.4 (1983). If Grove City had signed the Assurance, it would have agreed to"[c]omply, to the extent applicable to it, with Title IX . . . and all applicable requirements imposed by or pursuant to the Department's regulation . . . to the end that . . . no person in the United States shall, on the basis of sex, be . . . subjected to discrimination under any education program or activity for which [it] receives or benefits Page 465 U. S. 561 from Federal financial assistance from the Department."App. to Pet. for Cert. A-12 - A-127. [Footnote 7] When Grove City persisted in refusing to execute an Assurance, the Department initiated proceedings to declare the College and its students ineligible to receive BEOG's. [Footnote 8] The Administrative Law Judge held that the federal financial assistance received by Grove City obligated it to execute an Assurance of Compliance and entered an order terminating assistance until Grove City "corrects its noncompliance with Title IX and satisfies the Department that it is in compliance" with the applicable regulations. App. to Pet. for Cert. A-97.Grove City and four of its students then commenced this action in the District Court for the Western District of Pennsylvania, which concluded that the students' BEOG's constituted "Federal financial assistance" to Grove City but held, on several grounds, that the Department could not terminate the students' aid because of the College's refusal to execute an Assurance of Compliance. Grove City College v. Harris, 500 F. Supp. 253 (1980). [Footnote 9] The Court of Appeals reversed. Page 465 U. S. 562 687 F.2d 684 (CA3 1982). It first examined the language and legislative history of Title IX and held that indirect, as well as direct, aid triggered coverage under § 901(a), and that institutions whose students financed their educations with BEOG's were recipients of federal financial assistance within the meaning of Title IX. Although it recognized that Title IX's provisions are program-specific, the court likened the assistance flowing to Grove City through its students to nonearmarked aid, and, with one judge dissenting, declared that,"[w]here the federal government furnishes indirect or non-earmarked aid to an institution, it is apparent to us that the institution itself must be the 'program.'"687 F.2d at 700. [Footnote 10] Finally, the Court of Appeals concluded that the Department could condition financial aid upon the execution of an Assurance of Compliance, and that the Department had acted properly in terminating federal financial assistance to the students and Grove City despite the lack of evidence of actual discrimination. Page 465 U. S. 563We granted certiorari, 459 U.S. 1199 (1983), and we now affirm the Court of Appeals' judgment that the Department could terminate BEOG's received by Grove City's students to force the College to execute an Assurance of Compliance.IIIn defending its refusal to execute the Assurance of Compliance required by the Department's regulations, Grove City first contends that neither it nor any "education program or activity" of the College receives any federal financial assistance within the meaning of Title IX by virtue of the fact that some of its students receive BEOG's and use them to pay for their education. We disagree.Grove City provides a well-rounded liberal arts education and a variety of educational programs and student services. The question is whether any of those programs or activities "receiv[es] Federal financial assistance" within the meaning of Title IX when students finance their education with BEOG's. The structure of the Education Amendments of 1972, in which Congress both created the BEOG program and imposed Title IX's nondiscrimination requirement, strongly suggests an affirmative conclusion. BEOG's were aptly characterized as a "centerpiece of the bill," 118 Cong.Rec. 20297 (1972) (Rep. Pucinski), and Title IX "relate[d] directly to [its] central purpose." 117 Cong.Rec. 30412 (1971) (Sen. Bayh). In view of this connection and Congress' express recognition of discrimination in the administration of student financial aid programs, [Footnote 11] it would indeed be anomalous to discover that one of the primary components of Congress' comprehensive "package of federal aid," id. at 2007 (Sen. Pell), was not intended to trigger coverage under Title IX. Page 465 U. S. 564It is not surprising to find, therefore, that the language of § 901(a) contains no hint that Congress perceived a substantive difference between direct institutional assistance and aid received by a school through its students. The linchpin of Grove City's argument that none of its programs receives any federal assistance is a perceived distinction between direct and indirect aid, a distinction that finds no support in the text of § 901(a). [Footnote 12] Nothing in § 901(a) suggests that Congress elevated form over substance by making the application of the nondiscrimination principle dependent on the manner in which a program or activity receives federal assistance. There is no basis in the statute for the view that only institutions that themselves apply for federal aid or receive checks directly from the Federal Government are subject to regulation. Cf. Bob Jones University v. Johnson, 396 F. Supp. 597, 601-604 (SC 1974), affirmance order, 529 F.2d 514 (CA4 1975). As the Court of Appeals observed, "by its all inclusive terminology, [§ 901(a)] appears to encompass all forms of federal aid to education, direct or indirect." 687 F.2d at 691 (emphasis in original). We have recognized the need to "accord [Title IX] a sweep as broad as its language,'" North Haven Board of Education v. Bell, 456 U. S. 512, 456 U. S. 521 (1982) (quoting United States v. Price, 383 U. S. 787, 383 U. S. 801 (1966)), and we are reluctant to read into § 901(a) a limitation not apparent on its face. Page 465 U. S. 565Our reluctance grows when we pause to consider the available evidence of Congress' intent. The economic effect of direct and indirect assistance often is indistinguishable, see Mueller v. Allen, 463 U. S. 388, 463 U. S. 397, n. 6 (1983); id. at 463 U. S. 412 (MARSHALL, J., dissenting); Committee for Public Education v. Nyquist, 413 U. S. 756, 413 U. S. 783 (1973); Norwood v. Harrison, 413 U. S. 455, 413 U. S. 463-465 (1973), and the BEOG program was structured to ensure that it effectively supplements the College's own financial aid program. [Footnote 13] Congress undoubtedly comprehended this reality in enacting the Education Amendments of 1972. The legislative history of the Amendments is replete with statements evincing Congress' awareness that the student assistance programs established by the Page 465 U. S. 566 Amendments would significantly aid colleges and universities. [Footnote 14] In fact, one of the stated purposes of the student aid provisions was to "provid[e] assistance to institutions of higher education." Pub.L. 92-318, § 1001(c)(1), 86 Stat. 381, 20 U.S.C. § 1070(a)(5).Congress' awareness of the purpose and effect of its student aid programs also is reflected in the sparse legislative history of Title IX itself. Title IX was patterned after Title VI of the Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d et seq. (1976 ed. and Supp. V). Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 684-685 (1979); 118 Cong.Rec. 5807 (1972) (Sen. Bayh). The drafters of Title VI envisioned that the receipt of student aid funds would trigger coverage, [Footnote 15] and, since they approved identical language, we discern no reason to believe that the Congressmen who voted for Title IX intended a different result.The few contemporaneous statements that attempted to give content to the phrase "receiving Federal financial assistance," while admittedly somewhat ambiguous, are consistent with Senator Bayh's declaration that Title IX authorizes the Page 465 U. S. 567 termination of "all aid that comes through the Department of Health, Education, and Welfare." 117 Cong.Rec. 30408 (1971). [Footnote 16] Such statements by individual legislators should not be given controlling effect, but, at least in instances where they are consistent with the plain language of Title IX, Senator Bayh's remarks are "an authoritative guide to the statute's construction." North Haven Board of Education v. Bell, 456 U.S. at 456 U. S. 527. The contemporaneous legislative history, in short, provides no basis for believing that Title IX's broad language is somehow inconsistent with Congress' underlying intent. See also 20 U.S.C. § 1094(a)(3) (1982 ed.).Persuasive evidence of Congress' intent concerning student financial aid may also be gleaned from its subsequent treatment of Title IX. We have twice recognized the probative value of Title IX's unique postenactment history, North Haven Board of Education v. Bell, supra, at 456 U. S. 535; Cannon v. University of Chicago, supra, at 441 U. S. 687, n. 7, 441 U. S. 702-703, and we Page 465 U. S. 568 do so once again. The Department's sex discrimination regulations made clear that "[s]cholarships, loans, [and] grants . . . extended directly to . . . students for payment to" an institution constitute federal financial assistance to that entity. 40 Fed.Reg. 24137 (1975); see n 6, supra. Under the statutory "laying before" procedure of the General Education Provisions Act, Pub.L. 93-380, 88 Stat. 567, as amended, 20 U.S.C. § 1232(d)(1) (1982 ed.), Congress was afforded an opportunity to invalidate aspects of the regulations it deemed inconsistent with Title IX. [Footnote 17] The regulations were clear, and Secretary Weinberger left no doubt concerning the Department's position that "the furnishing of student assistance to a student who uses it at a particular institution . . . [is] Federal aid which is covered by the statute." [Footnote 18] Yet neither House passed a disapproval resolution. Congress' failure to disapprove the regulations is not dispositive, but, as we recognized in North Haven Board of Education v. Bell, supra, at 456 U. S. 533-534, it strongly implies that the regulations accurately reflect congressional intent. Congress has never disavowed this implication, and in fact has acted consistently with it on a number of occasions. [Footnote 19] Page 465 U. S. 569With the benefit of clear statutory language, powerful evidence of Congress' intent, and a longstanding and coherent administrative construction of the phrase "receiving Federal financial assistance," we have little trouble concluding that Title IX coverage is not foreclosed because federal funds are Page 465 U. S. 570 granted to Grove City's students, rather than directly to one of the College's educational programs. There remains the question, however, of identifying the "education program or activity" of the College that can properly be characterized as "receiving" federal assistance through grants to some of the students attending the College. [Footnote 20]IIIAn analysis of Title IX's language and legislative history led us to conclude in North Haven Board of Education v. Bell, 456 U.S. at 456 U. S. 538, that "an agency's authority under Title IX both to promulgate regulations and to terminate funds is subject to the program-specific limitations of §§ 901 and 902." Although the legislative history contains isolated suggestions that entire institutions are subject to the nondiscrimination Page 465 U. S. 571 provision whenever one of their programs receives federal assistance, see 1975 Hearings 178 (Sen. Bayh), we cannot accept the Court of Appeals' conclusion that, in the circumstances present here, Grove City itself is a "program or activity" that may be regulated in its entirety. Nevertheless, we find no merit in Grove City's contention that a decision treating BEOG's as "Federal financial assistance" cannot be reconciled with Title IX's program-specific language, since BEOG's are not tied to any specific "education program or activity."If Grove City participated in the BEOG program through the RDS, we would have no doubt that the "education program or activity receiving Federal financial assistance" would not be the entire College; rather, it would be its student financial aid program. [Footnote 21] RDS institutions receive federal funds directly, but can use them only to subsidize or expand their financial aid programs and to recruit students who might otherwise be unable to enroll. In short, the assistance is earmarked for the recipient's financial aid program. Only by ignoring Title IX's program-specific language could we conclude that funds received under the RDS, awarded to eligible students, and paid back to the school when tuition comes due represent federal aid to the entire institution.We see no reason to reach a different conclusion merely because Grove City has elected to participate in the ADS. Although Grove City does not itself disburse students' awards, BEOG's clearly augment the resources that the College itself Page 465 U. S. 572 devotes to financial aid. As is true of the RDS, however, the fact that federal funds eventually reach the College's general operating budget cannot subject Grove City to institution-wide coverage. Grove City's choice of administrative mechanisms, we hold, neither expands nor contracts the breadth of the "program or activity" -- the financial aid program -- that receives federal assistance and that may be regulated under Title IX.To the extent that the Court of Appeals' holding that BEOG's received by Grove City's students constitute aid to the entire institution rests on the possibility that federal funds received by one program or activity free up the College's own resources for use elsewhere, the Court of Appeals' reasoning is doubly flawed. First, there is no evidence that the federal aid received by Grove City's students results in the diversion of funds from the College's own financial aid program to other areas within the institution. [Footnote 22] Second, and more important, the Court of Appeals' assumption that Title IX applies to programs receiving a larger share of a school's own limited resources as a result of federal assistance earmarked for use elsewhere within the institution is inconsistent with the program-specific nature of the statute. Most federal educational assistance has economic ripple effects throughout the aided institution, and it would be difficult, if not impossible, to determine which programs or activities derive such indirect benefits. Under the Court of Appeals' Page 465 U. S. 573 theory, an entire school would be subject to Title IX merely because one of its students received a small BEOG or because one of its departments received an earmarked federal grant. This result cannot be squared with Congress' intent.The Court of Appeals' analogy between student financial aid received by an educational institution and nonearmarked direct grants provides a more plausible justification for its holding, but it too is faulty. Student financial aid programs, we believe, are sui generis. In neither purpose nor effect can BEOG's be fairly characterized as unrestricted grants that institutions may use for whatever purpose they desire. The BEOG program was designed, not merely to increase the total resources available to educational institutions, but to enable them to offer their services to students who had previously been unable to afford higher education. It is true, of course, that substantial portions of the BEOG's received by Grove City's students ultimately find their way into the College's general operating budget, and are used to provide a variety of services to the students through whom the funds pass. However, we have found no persuasive evidence suggesting that Congress intended that the Department's regulatory authority follow federally aided students from classroom to classroom, building to building, or activity to activity. In addition, as Congress recognized in considering the Education Amendments of 1972, the economic effect of student aid is far different from the effect of nonearmarked grants to institutions themselves, since the former, unlike the latter, increases both an institution's resources and its obligations. See Pub.L. 92-318, § 1001(a), 86 Stat. 375, 20 U.S.C. § 1070e; S.Rep. No. 92-346, p. 43 (1971); 118 Cong.Rec. 20331 (1972) (Rep. Badillo). In that sense, student financial aid more closely resembles many earmarked grants.We conclude that the receipt of BEOG's by some of Grove City's students does not trigger institution-wide coverage under Title IX. In purpose and effect, BEOG's represent Page 465 U. S. 574 federal financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX.IVSince Grove City operates an "education program or activity receiving Federal financial assistance," the Department may properly demand that the College execute an Assurance of Compliance with Title IX. 34 CFR § 106.4 (1983). Grove City contends, however, that the Assurance it was requested to sign was invalid, both on its face and as interpreted by the Department, in that it failed to comport with Title IX's program-specific character. Whatever merit that objection might have had at the time, it is not now a valid basis for refusing to execute an Assurance of Compliance.The Assurance of Compliance regulation itself does not, on its face, impose institution-wide obligations. Recipients must provide assurance only that "each education program or activity operated by . . . [them] and to which this part applies will be operated in compliance with this part." 34 CFR § 106.4 (1983) (emphasis added). The regulations apply, by their terms,"to every recipient and to each education program or activity operated by such recipient which receives or benefits from Federal financial assistance."34 CFR § 106.11 (1983) (emphasis added). These regulations, like those at issue in North Haven Board of Education v. Bell, 456 U. S. 512 (1982), "conform with the limitations Congress enacted in §§ 901 and 902." Id. at 456 U. S. 539. Nor does the Department now claim that its regulations reach beyond the College's student aid program. Furthermore, the Assurance of Compliance currently in use, like the one Grove City refused to execute, does not, on its face, purport to reach the entire College; it certifies compliance with respect to those "education programs and activities receiving Federal financial assistance." See n 2, supra. Under this opinion, consistent with the program-specific requirements of Title IX, Page 465 U. S. 575 the covered education program is the College's financial aid program.A refusal to execute a proper program-specific Assurance of Compliance warrants termination of federal assistance to the student financial aid program. The College's contention that termination must be preceded by a finding of actual discrimination finds no support in the language of § 902, which plainly authorizes that sanction to effect "[c]ompliance with any requirement adopted pursuant to this section." Regulations authorizing termination of assistance for refusal to execute an Assurance of Compliance with Title VI had been promulgated, 45 CFR § 80.4 (Supp., Jan. 1, 1965), and upheld, Gardner v. Alabama, 385 F.2d 804 (CA5 1967), cert. denied, 389 U.S. 1046 (1968), long before Title IX was enacted, and Congress no doubt anticipated that similar regulations would be developed to implement Title IX. 118 Cong.Rec. 5807 (1972) (Sen. Bayh). We conclude, therefore, that the Department may properly condition federal financial assistance on the recipient's assurance that it will conduct the aided program or activity in accordance with Title IX and the applicable regulations.VGrove City's final challenge to the Court of Appeals' decision -- that conditioning federal assistance on compliance with Title IX infringes First Amendment rights of the College and its students -- warrants only brief consideration. Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. E.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 451 U. S. 17 (1981). Grove City may terminate its participation in the BEOG program, and thus avoid the requirements of § 901(a). Students affected by the Department's action may either take their BEOG's elsewhere or attend Grove City without federal financial assistance. Requiring Grove City to comply with Title IX's Page 465 U. S. 576 prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students.Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtGrove City Coll. v. Bell, 465 U.S. 555 (1984)Grove City College v. BellNo. 82-792Argued November 29, 1983Decided February 28, 1984465 U.S. 555SyllabusSection 901(a) of Title IX of the Education Amendments of 1972 prohibits sex discrimination in "any education program or activity receiving Federal financial assistance," and § 902 provides that a recipient's compliance with regulations of a federal agency awarding assistance may be secured by termination of assistance "to the particular program, or part thereof, in which . . . noncompliance has been . . . found." Under the statute, a federally assisted program must be identified before Title IX coverage is triggered. Petitioner Grove City College (College), a private, coeducational, liberal arts college, accepts no direct federal assistance, nor does it participate in the Regular Disbursement System (RDS) of the Department of Education (Department), whereby amounts for federal grants to students are advanced to the institution, which then itself selects eligible students and calculates and distributes the grants. However, the College enrolls students who receive direct federal Basic Educational Opportunity Grants (BEOG's) under the Department's Alternative Disbursement System (ADS). The Department concluded that, under applicable regulations, the College was a "recipient" of "Federal financial assistance," and when the College refused to execute an Assurance of Compliance with Title IX's nondiscrimination provisions, as required by the regulations, the Department initiated administrative proceedings, which resulted in an order terminating assistance until the College executed an Assurance of Compliance and satisfied the Department that it was in compliance with the regulations. The College and four of its students then filed suit in Federal District Court, which held that the students' BEOG's constituted "Federal financial assistance" to the College, but that the Department could not terminate the students' aid because of the College's refusal to execute an Assurance of Compliance. The Court of Appeals reversed, holding that the Department could terminate the students' BEOG's to force the College to execute an Assurance of Compliance.Held:1. Title IX coverage is triggered because some of the College's students receive BEOG's to pay for their education. In view of the structure of the Education Amendments of 1972, the clear statutory language, Page 465 U. S. 556 the legislative history (including postenactment history) showing Congress' awareness that the student assistant programs established by the Amendments significantly aided colleges and universities, and the longstanding administrative construction of the phrase "receiving Federal financial assistance" as including assistance to a student who uses it at a particular institution, Title IX coverage is not foreclosed merely because federal funds are granted to the students, rather than to the College's educational programs. Pp. 465 U. S. 563-570.2. However, the receipt of BEOG's by some of the College's students does not trigger institution-wide coverage under Title IX. In purpose and effect, BEOG's represent financial assistance to the College's own financial aid program, and it is that program that may properly be regulated under Title IX's nondiscrimination provision. Under the program-specific limitations of §§ 901 and 902, the College's choice of participating in the ADS, rather than the RDS, mechanism for administering the BEOG program neither expands nor contracts the breadth of the "program or activity receiving Federal financial assistance." The fact that federal funds eventually reach the College's general operating budget cannot subject it to institution-wide coverage. Pp. 465 U. S. 570-574.3. A refusal to execute a proper program-specific Assurance of Compliance warrants the Department's termination of federal assistance to the student financial aid program. The College's contention that termination must be preceded by a finding of actual discrimination is not supported by § 902's language. Pp. 465 U. S. 574-575.4. Requiring the College to comply with Title IX's prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students. Pp. 465 U. S. 575-576.687 F.2d 684, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined, and in all but Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, in which BURGER, C.J., and O'CONNOR, J., joined, post, p. 465 U. S. 576. STEVENS, J., filed an opinion concurring in part and concurring in the result,post, p. 465 U. S. 579. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined,post, p. 465 U. S. 581. Page 465 U. S. 557

1983_82-960

JUSTICE BRENNAN delivered the opinion of the Court.James Brown, a truckdriver employed by respondent, was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. Article XXI of the collective bargaining agreement between respondent and Local 247 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which covered Brown, provides:"The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances Page 465 U. S. 825 prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified. [Footnote 1]"The question to be decided is whether Brown's honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks constituted "concerted activit[y]" within the meaning of § 7 of the National Labor Relations Act (NLRA or Act), 61 Stat. 140, 29 U.S.C. § 157. [Footnote 2] The National Labor Relations Board (NLRB or Board) held that Brown's refusal was concerted activity within § 7, and that his discharge was, therefore, an unfair labor practice under § 8(a)(1) of the Act, 61 Stat. 140, 29 U.S.C. § 158(a). [Footnote 3] 256 N.L.R.B. 451 (1981). The Court of Appeals disagreed, and declined enforcement. 683 F.2d 1005 (CA6 1982). At least three other Courts of Appeals, however, have accepted the Board's interpretation of "concerted activities" as including the assertion by an individual employee of a right grounded in a collective bargaining agreement. [Footnote 4] We granted certiorari Page 465 U. S. 826 to resolve the conflict, 460 U.S. 1050 (1983), and now reverse.IThe facts are not in dispute in the current posture of this case. [Footnote 5] Respondent, City Disposal Systems, Inc. (City Disposal), hauls garbage for the city of Detroit. Under the collective bargaining agreement with Local Union No. 247, respondent's truckdrivers haul garbage from Detroit to a landfill about 37 miles away. Each driver is assigned to operate a particular truck, which he or she operates each day of work, unless that truck is in disrepair.James Brown was assigned to truck No. 245. On Saturday, May 12, 1979, Brown observed that a fellow driver had difficulty with the brakes of another truck, truck No. 244. As a result of the brake problem, truck No. 244 nearly collided with Brown's truck. After unloading their garbage at the landfill, Brown and the driver of truck No. 244 brought No. 244 to respondent's truck-repair facility, where they were told that the brakes would be repaired either over the weekend or in the morning of Monday, May 14.Early in the morning of Monday, May 14, while transporting a load of garbage to the landfill, Brown experienced difficulty with one of the wheels of his own truck -- No. 245 -- and brought that truck in for repair. At the repair facility, Page 465 U. S. 827 Brown was told that, because of a backlog at the facility, No. 245 could not be repaired that day. Brown reported the situation to his supervisor, Otto Jasmund, who ordered Brown to punch out and go home. Before Brown could leave, however, Jasmund changed his mind and asked Brown to drive truck No. 244 instead. Brown refused, explaining that"there's something wrong with that truck. . . . [S]omething was wrong with the brakes . . . there was a grease seal or something leaking, causing it to be affecting the brakes."Brown did not, however, explicitly refer to Article XXI of the collective bargaining agreement or to the agreement in general. In response to Brown's refusal to drive truck No. 244, Jasmund angrily told Brown to go home. At that point, an argument ensued and Robert Madary, another supervisor, intervened, repeating Jasmund's request that Brown drive truck No. 244. Again, Brown refused, explaining that No. 244 "has got problems, and I don't want to drive it." Madary replied that half the trucks had problems, and that, if respondent tried to fix all of them, it would be unable to do business. He went on to tell Brown that "[w]e've got all this garbage out here to haul and you tell me about you don't want to drive." Brown responded, "Bob, what you going to do, put the garbage ahead of the safety of the men?" Finally, Madary went to his office and Brown went home. Later that day, Brown received word that he had been discharged. He immediately returned to work in an attempt to gain reinstatement, but was unsuccessful.On May 15, the day after the discharge, Brown filed a written grievance, pursuant to the collective bargaining agreement, asserting that truck No. 244 was defective, that it had been improper for him to have been ordered to drive the truck, and that his discharge was therefore also improper. The union, however, found no objective merit in the grievance, and declined to process it.On September 7, 1979, Brown filed an unfair labor practice charge with the NLRB, challenging his discharge. The Administrative Page 465 U. S. 828 Law Judge (ALJ) found that Brown had been discharged for refusing to operate truck No. 244, that Brown's refusal was covered by § 7 of the NLRA, and that respondent had therefore committed an unfair labor practice under § 8(a)(1) of the Act. The ALJ held that an employee who acts alone in asserting a contractual right can nevertheless be engaged in concerted activity within the meaning of § 7:"'[W]hen an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attempting to enforce such contract provisions in the interest of all the employees covered under that contract. Such activity we have found to be concerted, and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1) [of the Act].'"256 N.L.R.B. at 454 (quoting Roadway Express, Inc., 217 N.L.R.B. 278, 279 (1975)). The NLRB adopted the findings and conclusions of the ALJ and ordered that Brown be reinstated with backpay.On a petition for enforcement of the Board's order, the Court of Appeals disagreed with the ALJ and the Board. Finding that Brown's refusal to drive truck No. 244 was an action taken solely on his own behalf, the Court of Appeals concluded that the refusal was not a concerted activity within the meaning of § 7. This holding followed the court's prior decision in ARO, Inc. v. NLRB, 596 F.2d 713 (CA6 1979), in which the Court of Appeals had held:"For an individual claim or complaint to amount to concerted action under the Act, it must not have been made solely on behalf of an individual employee, but it must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement."Id. at 718. Page 465 U. S. 829IISection 7 of the NLRA provides that"[e]mployees shall have the right to . . . join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."29 U.S.C. § 157. The NLRB's decision in this case applied the Board's longstanding "Interboro doctrine," under which an individual's assertion of a right grounded in a collective bargaining agreement is recognized as "concerted activit[y]," and therefore accorded the protection of § 7. [Footnote 6] See Interboro Contractors, Inc., 157 N.L.R.B. 1295, 1298 (1966), enf'd, 388 F.2d 495 (CA2 1967); Bunney Bros. Construction Co., 139 N.L.R.B. 1516, 1519 (1962). The Board has relied on two justifications for the doctrine: first, the assertion of a right contained in a collective bargaining agreement is an extension of the concerted action that produced the agreement, Bunney Bros. Construction, supra, at 1519; and second, the assertion of such a right affects the rights of all employees covered by the collective bargaining agreement. Interboro Contractors, supra, at 1298.We have often reaffirmed that the task of defining the scope of § 7 "is for the Board to perform in the first instance as it considers the wide variety of cases that come before it," Eastex, Inc. v. NLRB, 437 U. S. 556, 437 U. S. 568 (1978), and, on an issue that implicates its expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference, NLRB v. Iron Workers, 434 U. S. 335, 434 U. S. 350 (1978); Page 465 U. S. 830 NLRB v. Hearst Publications, Inc., 322 U. S. 111, 322 U. S. 130-131 (1944). The question for decision today is thus narrowed to whether the Board's application of § 7 to Brown's refusal to drive truck No. 244 is reasonable. [Footnote 7] Several reasons persuade us that it is.ANeither the Court of Appeals nor respondent appears to question that an employee's invocation of a right derived from a collective bargaining agreement meets § 7's requirement that an employee's action be taken "for purposes of collective bargaining or other mutual aid or protection." As the Board first explained in the Interboro case, a single employee's invocation of such rights affects all the employees that are covered by the collective bargaining agreement. Interboro Contractors, Inc., supra, at 1298. This type of generalized effect, as our cases have demonstrated, is sufficient to bring the actions of an individual employee within the "mutual aid or protection" standard, regardless of whether the employee has his own interests most immediately in mind. See, e.g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 420 U. S. 260-261 (1975).The term "concerted activit[y]" is not defined in the Act, but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals. See, e.g., Meyers Industries, Inc., 268 N.L.R.B. 493, 494495 (1984). What is not self-evident from the language of Page 465 U. S. 831 the Act, however, and what we must elucidate, is the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity. We now turn to consider the Board's analysis of that question as expressed in the Interboro doctrine.Although one could interpret the phrase, "to engage in other concerted activities," to refer to a situation in which two or more employees are working together at the same time and the same place toward a common goal, the language of § 7 does not confine itself to such a narrow meaning. In fact, § 7 itself defines both joining and assisting labor organizations -- activities in which a single employee can engage -- as concerted activities. [Footnote 8] Indeed, even the courts that have rejected the Interboro doctrine recognize the possibility that an individual employee may be engaged in concerted activity when he acts alone. They have limited their recognition of this type of concerted activity, however, to two situations: (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee. See, e.g., ARO, Inc. v. NLRB, 596 F.2d at 717; NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971). The disagreement over the Interboro doctrine, therefore, merely reflects differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for § 7 to apply. We cannot say that the Board's view of that relationship, as applied in the Interboro doctrine, is unreasonable.The invocation of a right rooted in a collective bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That process -- beginning with the organization of a union, continuing into the negotiation Page 465 U. S. 832 of a collective bargaining agreement, and extending through the enforcement of the agreement -- is a single, collective activity. [Footnote 9] Obviously, an employee could not invoke a right grounded in a collective bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would it make sense for a union to negotiate a collective bargaining agreement if individual employees could not invoke the rights thereby created against their employer. Moreover, when an employee invokes a right grounded in the collective bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees. When, for instance, James Brown refused to drive a truck he believed to be unsafe, he was in effect reminding his employer that he and his fellow employees, at the time their collective bargaining agreement was signed, had extracted a promise from City Disposal that they would not be asked to drive unsafe trucks. He was also reminding his employer that, if it persisted in ordering him to drive an unsafe truck, he could reharness the power of that group to ensure the enforcement of that promise. It was just as though James Brown was reassembling his fellow union members to reenact their decision not to drive unsafe trucks. A lone employee's invocation of a right grounded in his collective bargaining agreement is, therefore, a concerted activity in a very real sense.Furthermore, the acts of joining and assisting a labor organization, which § 7 explicitly recognizes as concerted, are related to collective action in essentially the same way that the invocation of a collectively bargained right is related to collective action. When an employee joins or assists a labor Page 465 U. S. 833 organization, his actions may be divorced in time, and in location as well, from the actions of fellow employees. Because of the integral relationship among the employees' actions, however, Congress viewed each employee as engaged in concerted activity. The lone employee could not join or assist a labor organization were it not for the related organizing activities of his fellow employees. Conversely, there would be limited utility in forming a labor organization if other employees could not join or assist the organization once it is formed. Thus, the formation of a labor organization is integrally related to the activity of joining or assisting such an organization in the same sense that the negotiation of a collective bargaining agreement is integrally related to the invocation of a right provided for in the agreement. In each case, neither the individual activity nor the group activity would be complete without the other. [Footnote 10]The Interboro doctrine is also entirely consistent with the purposes of the Act, which explicitly include the encouragement Page 465 U. S. 834 of collective bargaining and other"practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions."29 U.S.C. § 151. Although, as we have said, there is nothing in the legislative history of § 7 that specifically expresses the understanding of Congress in enacting the "concerted activities" language, the general history of § 7 reveals no inconsistency between the Interboro doctrine and congressional intent. That history begins in the early days of the labor movement, when employers invoked the common law doctrines of criminal conspiracy and restraint of trade to thwart workers' attempts to unionize. See Automobile Workers v. Wisconsin Employment Relation Board (Briggs & Stratton), 336 U. S. 245, 336 U. S. 257-258 (1949). As this Court recognized in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 33 (1937), a single employee at that time"was helpless in dealing with an employer; . . . he was dependent ordinarily on his daily wage for the maintenance of himself and family; . . . if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; . . . union was essential to give laborers opportunity to deal on an equality with their employer."Congress' first attempt to equalize the bargaining power of management and labor, and its first use of the term "concert" in this context, came in 1914 with the enactment of §§ 6 and 20 of the Clayton Act, which exempted from the antitrust laws certain types of peaceful union activities. 15 U.S.C. § 17; 29 U.S.C. § 52. [Footnote 11] There followed, in 1932, the Norris-La Guardia Act, which declared that"the individual . . . worker . . . shall be free from the interference, restraint, or coercion, of employers . . . in self-organization or in other Page 465 U. S. 835 concerted activities for the purpose of collective bargaining or other mutual aid or protection."29 U.S.C. § 102 (emphasis added). This was the source of the language enacted in § 7. It was adopted first in § 7(a) of the National Industrial Recovery Act and then, in 1935, in § 7 of the NLRA. See generally Gorman & Finkin, The Individual and the Requirement of "Concert" Under the National Labor Relations Act, 130 U.Pa.L.Rev. 286, 331-346 (1981).Against this background, it is evident that, in enacting § 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. There is no indication that Congress intended to limit this protection to situations in which an employee's activity and that of his fellow employees combine with one another in any particular way. Nor, more specifically, does it appear that Congress intended to have this general protection withdrawn in situations in which a single employee, acting alone, participates in an integral aspect of a collective process. Instead, what emerges from the general background of § 7 -- and what is consistent with the Act's statement of purpose -- is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective bargaining agreements.The Board's Interboro doctrine, based on a recognition that the potential inequality in the relationship between the employee and the employer continues beyond the point at which a collective bargaining agreement is signed, mitigates that inequality throughout the duration of the employment relationship, and is, therefore, fully consistent with congressional intent. Moreover, by applying § 7 to the actions of individual employees invoking their rights under a collective bargaining agreement, the Interboro doctrine preserves the integrity of the entire collective bargaining process; for by invoking a Page 465 U. S. 836 right grounded in a collective bargaining agreement, the employee makes that right a reality, and breathes life not only into the promises contained in the collective bargaining agreement, but also into the entire process envisioned by Congress as the means by which to achieve industrial peace.To be sure, the principal tool by which an employee invokes the rights granted him in a collective bargaining agreement is the processing of a grievance according to whatever procedures his collective bargaining agreement establishes. No one doubts that the processing of a grievance in such a manner is concerted activity within the meaning of § 7. See, e.g., NLRB v. Ford Motor Co., 683 F.2d 156, 159 (CA6 1982); Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (CA5 1970). Indeed, it would make little sense for § 7 to cover an employee's conduct while negotiating a collective bargaining agreement, including a grievance mechanism by which to protect the rights created by the agreement, but not to cover an employee's attempt to utilize that mechanism to enforce the agreement.In practice, however, there is unlikely to be a bright-line distinction between an incipient grievance, a complaint to an employer, and perhaps even an employee's initial refusal to perform a certain job that he believes he has no duty to perform. It is reasonable to expect that an employee's first response to a situation that he believes violates his collective bargaining agreement will be a protest to his employer. Whether he files a grievance will depend in part on his employer's reaction and in part upon the nature of the right at issue. In addition, certain rights might not be susceptible of enforcement by the filing of a grievance. In such a case, the collective bargaining agreement might provide for an alternative method of enforcement, as did the agreement involved in this case, see supra at 465 U. S. 825, or the agreement might be silent on the matter. Thus, for a variety of reasons, an employee's initial statement to an employer to the effect that he believes a collectively bargained right is being violated, or the employee's Page 465 U. S. 837 initial refusal to do that which he believes he is not obligated to do, might serve as both a natural prelude to, and an efficient substitute for, the filing of a formal grievance. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the Board's judgment that the employee is engaged in concerted activity, just as he would have been had he filed a formal grievance.The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of § 7. See, e.g., Crown Central Petroleum Corp. v. NLRB, supra, at 729; Yellow Freight System, Inc., 247 N.L.R.B. 177, 181 (1980). Cf. Eastex, Inc. v. NLRB, 437 U. S. 556 (1978); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). Furthermore, if an employer does not wish to tolerate certain methods by which employees invoke their collectively bargained rights, he is free to negotiate a provision in his collective bargaining agreement that limits the availability of such methods. No-strike provisions, for instance, are a common mechanism by which employers and employees agree that the latter will not invoke their rights by refusing to work. In general, if an employee violates such a provision, his activity is unprotected even though it may be concerted. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956). Whether Brown's action in this case was unprotected, however, is not before us.BRespondent argues that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair Page 465 U. S. 838 labor practice claim. Brief for Respondent 34-42. This argument, however, misses the mark for several reasons. First, an employee who purposefully follows this route would run the risk that the Board would find his actions concerted, but nonetheless unprotected, as discussed above.Second, the Interboro doctrine does not shift dispute resolution from the grievance and arbitration process to NLRB adjudication in any way that is different from the alternative position adopted by the Court of Appeals, and pressed upon us by respondent. As stated above, see supra at 465 U. S. 828, the Court of Appeals would allow a finding of concerted activity if two employees together invoke a collectively bargained right, if a lone employee represents another employee in addition to himself when he invokes the right, or if the lone employee invokes the right in a manner that is intended to induce at least one other employee to join him. In each of these situations, however, the underlying substance of the dispute between the employees and the employer is the same as when a single employee invokes a collectively bargained right by himself. In each case, the employees are claiming that their employer violated their collective bargaining agreement, and if the complaining employee or employees in those situations are discharged, their unfair labor practice action would be identical to an action brought by an employee who has been discharged for invoking a collectively bargained right by himself. Because the employees in each of these situations are equally well positioned to go through the grievance and arbitration process, there is no basis for singling out the Interboro doctrine as undermining that process any more than would the approach of respondent and the Courts of Appeals that have rejected the doctrine.Finally, and most importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the Board may defer to that process. See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971); Spielberg Manufacturing Page 465 U. S. 839 Co., 112 N.L.R.B. 1080 (1955). There is no reason, therefore, for the Board's interpretation of "concerted activit[y]" in § 7 to be constrained by a concern for maintaining the integrity of the grievance and arbitration process.IIIIn this case, the Board found that James Brown's refusal to drive truck No. 244 was based on an honest and reasonable belief that the brakes on the truck were faulty. Brown explained to each of his supervisors his reason for refusing to drive the truck. Although he did not refer to his collective bargaining agreement in either of these confrontations, the agreement provided not only that "[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition," but also that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment, unless such refusal is unjustified." See supra at 465 U. S. 825. There is no doubt, therefore, nor could there have been any doubt during Brown's confrontations with his supervisors, that, by refusing to drive truck No. 244, Brown was invoking the right granted him in his collective bargaining agreement to be free of the obligation to drive unsafe trucks. Moreover, there can be no question but that Brown's refusal to drive the truck was reasonably well directed toward the enforcement of that right. Indeed, it would appear that there were no other means available by which Brown could have enforced the right. If he had gone ahead and driven truck No. 244, the issue may have been moot.Respondent argues that Brown's action was not concerted, because he did not explicitly refer to the collective bargaining agreement as a basis for his refusal to drive the truck. Brief for Respondent 21-22. The Board, however, has never held that an employee must make such an explicit reference for his actions to be covered by the Interboro doctrine, and we find that position reasonable. We have often recognized the importance Page 465 U. S. 840 of "the Board's special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 236 (1963). As long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the participants are likely to be unsophisticated in collective bargaining matters, a requirement that the employee explicitly refer to the collective bargaining agreement is likely to serve as nothing more than a trap for the unwary.Respondent further argues that the Board erred in finding Brown's action concerted based only on Brown's reasonable and honest belief that truck No. 244 was unsafe. Brief for Respondent 38. Respondent bases its argument on the language of the collective bargaining agreement, which provides that an employee may refuse to drive an unsafe truck "unless such refusal is unjustified." In the view of respondent, this language allows a driver to refuse to drive a truck only if the truck is objectively unsafe. Regardless of whether respondent's interpretation of the agreement is correct, a question as to which we express no view, this argument confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated. See 465 U. S. supra. No one would suggest, for instance, that the filing of a grievance is concerted only if the grievance turns out to be meritorious. As long as the grievance is based on an honest and reasonable belief that a right had been violated, its filing is a concerted activity because it is an integral part of the process by which the collective bargaining agreement is enforced. Page 465 U. S. 841 The same is true of other methods by which an employee enforces the agreement. On the other hand, if the collective bargaining agreement imposes a limitation on the means by which a right may be invoked, the concerted activity would be unprotected if it went beyond that limitation. See supra at 465 U. S. 837.In this case, because Brown reasonably and honestly invoked his right to avoid driving unsafe trucks, his action was concerted. It may be that the collective bargaining agreement prohibits an employee from refusing to drive a truck that he reasonably believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown's action was concerted, but unprotected. As stated above, however, the only issue before this Court and the only issue passed upon by the Board or the Court of Appeals is whether Brown's action was concerted, not whether it was protected.IVThe NLRB's Interboro doctrine recognizes as concerted activity an individual employee's reasonable and honest invocation of a right provided for in his collective bargaining agreement. We conclude that the doctrine constitutes a reasonable interpretation of the Act. Accordingly, we accept the Board's conclusion that James Brown was engaged in concerted activity when he refused to drive truck No. 244. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion, including an inquiry into whether respondent may continue to defend this action on the theory that Brown's refusal to drive truck No. 244 was unprotected, even if concerted.It is so ordered

U.S. Supreme CourtNLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984)National Labor Relations Board v. City Disposal Systems, Inc.No. 82-960Argued November 7, 1983Decided March 21, 1984465 U.S. 822SyllabusSection 7 of the National Labor Relations Act provides that employees shall have the right to join or assist labor organizations, to bargain collectively, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The collective bargaining agreement between respondent and the union representing its truckdrivers provides that respondent shall not require employees to operate any vehicle that is not in safe operating condition, and that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified." One of respondent's employees (James Brown) was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. After the union declined to process Brown's grievance under the bargaining agreement, he filed an unfair labor practice charge with the National Labor Relations Board (NLRB), challenging his discharge. An Administrative Law Judge concluded that, even though Brown acted alone in asserting a contractual right, his refusal to operate the truck constituted "concerted activit[y]" protected by § 7, and that respondent had therefore committed an unfair labor practice in discharging him. The NLRB adopted the Administrative Law Judge's findings and conclusions and ordered Brown's reinstatement with backpay, applying its longstanding "Interboro doctrine," which was based on the conclusions that an individual's reasonable and honest assertion of a right contained in a collective bargaining agreement is an extension of the concerted action that produced the agreement, and that the assertion of such a right affects the rights of all employees covered by the agreement. However, the Court of Appeals denied enforcement of the NLRB's order, finding that Brown's refusal to drive the truck was an action taken solely on his own behalf, and thus was not a concerted activity within § 7's meaning.Held:1. The NLRB's Interboro doctrine is a reasonable interpretation of the Act. Pp. 465 U. S. 829-839.(a) The language of § 7 does not confine itself to situations where two or more employees are working together at the same time and the Page 465 U. S. 823 same place toward a common goal, or to situations where a lone employee intends to induce group activity or acts as a representative of at least one other employee. The invocation of a right rooted in a collective bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. The Interboro doctrine is entirely consistent with the Act's purposes, which include the encouragement of collective bargaining and other practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions. Moreover, § 7's general history reveals no inconsistency between the Interboro doctrine and congressional intent to equalize the bargaining power of management and labor. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the NLRB's judgment that the employee is engaged in concerted activity. Pp. 465 U. S. 830-837.(b) The fact that an activity is concerted does not necessarily mean that an employee may engage in the activity with impunity. If an employee engages in concerted activity in a manner that is overly abusive or violative of his collective bargaining agreement, his actions would be unprotected. P. 465 U. S. 837.(c) There is no merit to the argument that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair labor practice claim. An employee who purposefully follows this route would run the risk that the NLRB would find his actions concerted but nonetheless unprotected. More importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the NLRB may defer to that process. Pp. 465 U. S. 837-839.2. The NLRB reasonably concluded that Brown's honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks, even though he did not explicitly refer to the collective bargaining agreement when he refused to drive the truck, constituted concerted activity within the meaning of § 7. As long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicated, and the complaint in fact refers to a reasonably perceived violation of the collective bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. Respondent's argument that the NLRB erred in finding Brown's action concerted based only on Brown's reasonable and honest belief that the truck was Page 465 U. S. 824 unsafe, because the bargaining agreement required that the truck be objectively unsafe, confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The latter question should be considered on remand. Pp. 465 U. S. 839-841.683 F.2d 1005, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. 465 U.S. 841.

1991_90-6297

propriate sentence from within the guideline range and the decision to depart from that range are left solely to the sentencing court. Thus, when only some of the district court's reasons for departure are invalid, an appellate court may not affirm a sentence on the ground that the district court could have based its departure on the remaining factors, since the district court, once apprised of the errors in its interpretation of the Guidelines, may have chosen a different sentence. Pp. 204-205.2. This Court declines to review the Court of Appeals' determination regarding the reliability of Williams' outdated convictions, because the propriety of the District Court's consideration of nonsimilar outdated convictions was not clearly presented in the petition for certiorari and was not briefed by either party. Pp. 205-206.3. The case is remanded for a determination whether the sentence was imposed "as a result of" the District Court's erroneous consideration of Williams' prior arrests, since it cannot be ascertained whether the Court of Appeals concluded that the District Court would have imposed the same sentence even without relying upon Williams' prior arrest record or whether it affirmed simply on the basis that the sentence was reasonable under §3742(f)(2). P.206.910 F.2d 1574, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined. WHITE, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p.207.Kenneth H. Hanson, by appointment of the Court, 499 U. S. 973, argued the cause and filed briefs for petitioner.Amy L. Wax argued the cause for the United States.With her on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Kathleen A. Felton.JUSTICE O'CONNOR delivered the opinion of the Court. The Sentencing Reform Act of 1984 (Act), as amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. §§ 991-998, created the United States Sentencing Commission and empowered it to promulgate guidelines establishing sentencing ranges for different categories of federal offenses and defendants. The196Act permits a district court to depart from the presumptive sentencing range prescribed by the Sentencing Guidelines only in certain circumstances. 18 U. S. C. § 3553(b). The Act also provides for limited appellate review of sentences in order to ensure the proper application of the Guidelines. § 3742. In this case, we consider the scope of appellate review, under the Act, of a sentence in which a district court has departed from the guideline sentencing range.IPetitioner Joseph Williams, a previously convicted felon, was the subject of an investigation conducted by the Bureau of Alcohol, Tobacco and Firearms in 1988 and 1989. He was indicted and convicted after a jury trial in the United States District Court for the Western District of Wisconsin for possession of a firearm while a convicted felon in violation of 18 U. S. C. § 922(g)(1).The presentence report assigned Williams a criminal history category of V. App. 48. Combined with an offense level of 9, the applicable sentencing range under the Guidelines was 18 to 24 months. Ibid. The District Court departed upward from this range pursuant to § 4A1.3 of the Guidelines Manual, which allows a district court to increase a criminal history classification if "reliable information" indicates that the criminal history category does not adequately reflect the seriousness of the defendant's criminal background or propensity for future criminal conduct. United States Sentencing Commission, Guidelines Manual § 4A1.3, p. s. (Nov. 1991) (USSG). The District Court determined that Williams' criminal history category was inadequate because it did not include two convictions that were too old to be counted in the Guidelines' criminal history calculation, see § 4A1.2(e)(1), and because it did not reflect several prior arrests. App. 53-54. Citing these two factors, the court looked to the next highest criminal history category, for197which the guideline range was 21 to 27 months. Id., at 5354. The court then sentenced Williams to 27 months' imprisonment and explained that it was selecting a sentence at the high end of the guideline range because Williams had previously been convicted for the same offense and because he had threatened an undercover agent in this case. Id., at 55-56.1The United States Court of Appeals for the Seventh Circuit upheld the conviction and the sentence. 910 F.2d 1574 (1990). It agreed with the District Court that, under the circumstances of this case, the two outdated convictions were "reliable information" indicating more extensive criminal conduct than was reflected by Williams' criminal history category. Id., at 1579. It rejected, however, the District Court's reliance upon Williams' prior arrests not resulting in prosecution. Although the Guidelines allow a court to consider "prior similar adult criminal conduct not resulting in a criminal conviction" in determining whether a departure is warranted, they prohibit a court from basing a departure on a prior arrest record alone. USSG § 4A1.3, p. s. The Court of Appeals asserted that "the determination that the arrests indicated similar criminal conduct must be based on facts apart from the arrest record itself," 910 F. 2d, at 1580, and held that the District Court had not adequately explained the factual basis for its use of Williams' prior arrests as a ground for departure. Ibid.Although it invalidated one of the two grounds mentioned by the District Court in its decision to depart, the Court of Appeals nevertheless affirmed Williams' sentence. It relied upon the Seventh Circuit precedent of United States v. Franklin, 902 F.2d 501 (CA7), cert. denied sub nom. MannlOur reading of the sentencing transcript thus does not accord with the dissent's understanding that the District Court also considered Williams' prior conviction for the same offense in its decision to depart. See post, at 208.198v. United States, 498 U. S. 906 (1990), which held that when a sentencing court uses both proper and improper factors to justify a departure, the sentence can be affirmed if it is reasonable in light of the proper factors standing alone. 902 F. 2d, at 508-509. Applying Franklin, the Court of Appeals concluded that, despite the District Court's error in considering Williams' prior arrest record, the court had "correctly determined that Mr. Williams' criminality was not reflected properly in the criminal history category and that the relevant evidence justified the rather modest increase in sentence." 910 F. 2d, at 1580.We granted certiorari, 499 U. S. 918 (1991), to resolve a conflict among the Circuits on whether a reviewing court may affirm a sentence in which a district court's departure from the guideline range is based on both valid and invalid factors. Compare United States v. Zamarripa, 905 F.2d 337, 342 (CAlO 1990) (when one or more of the stated grounds for departure is invalid, the case must be remanded for resentencing); United States v. Hernandez-Vasquez, 884 F. 2d 1314, 1315-1316 (CA9 1989) (same), with United States v. Franklin, supra, at 508-509 (when one or more of the stated grounds for departure is invalid, appellate court may affirm if sentence is still reasonable in light of remaining factors); United States v. Rodriguez, 882 F.2d 1059, 1066-1068 (CA6 1989) (same), cert. denied, 493 U. S. 1084 (1990); United States v. Hummer, 916 F.2d 186, 195, n. 8 (CA4 1990) (same), cert. denied, 499 U. S. 970 (1991).IIThe Act provides that a district court may depart from the sentencing range set by the Guidelines only when it finds that "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U. S. C. § 3553(b). A defendant may file an appeal if a sentence was imposed in violation of law or as a199result of an incorrect application of the Guidelines, or if the district court departed upward from the guideline range. § 3742(a). Similarly, the Government may file an appeal if a sentence was imposed in violation of law or as a result of an incorrect application of the Guidelines, or if the district court departed downward from the guideline range. §3742(b).For both types of appeal, § 3742(f) delineates the following narrow scope of review:"If the court of appeals determines that the sentence-"(1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate;"(2) is outside the applicable guideline range and is unreasonable or was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable, it shall state specific reasons for its conclusions and-"(A) if it determines that the sentence is too high and the appeal has been filed [by the defendant], it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate;"(B) if it determines that the sentence is too low and the appeal has been filed [by the Government], it shall set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate;"(3) is not described in paragraph (1) or (2), it shall affirm the sentence."AIn the case before us, Williams urges that the District Court's use of his arrest record as a ground for departure was a misapplication of the Guidelines and that the "incor-200rect application" standard of § 3742(f)(1) means that once a departure ground is invalidated, a remand is always in order. The Government does not dispute that a district court's reliance upon an invalid factor in departing from the guideline sentencing range is appropriately characterized as an "incorrect application" of the Guidelines, but contends that a remand is only required when the error was determinative in the decision to depart.We agree with both parties that a sentencing court's use of an invalid departure ground is an incorrect application of the Guidelines. The Guidelines echo the Act's instruction that a district court may depart from the applicable guideline range only when it finds an aggravating or mitigating circumstance "'not adequately taken into consideration by the Sentencing Commission'" in formulating the Guidelines. USSG § lA4(b), p. s., § 5K2.0, p. s. (both quoting 18 U. S. C. § 3553(b)). Construing the plain language of the Guidelines Manual and the governing statute, we conclude that it is an incorrect application of the Guidelines for a district court to depart from the applicable sentencing range based on a factor that the Commission has already fully considered in establishing the guideline range or, as in this case, on a factor that the Commission has expressly rejected as an appropriate ground for departure.Congress has defined "guidelines" as "the guidelines promulgated by the commission pursuant to section 994(a)." 28 U. S. C. § 998(c). Section 994(a) grants the Commission the authority to promulgate both "guidelines," § 994(a)(1), and "general policy statements regarding application of the guidelines," § 994(a)(2). The dissent draws a distinction between the "actual" guidelines and the policy statements that "interpre[t]" and "explai[n]" them; in the dissent's view, only the former can be incorrectly applied within the meaning of 18 U. S. C. § 3742(f)(1). Post, at 211-212. But to say that guidelines are distinct from policy statements is not to say that their meaning is unaffected by policy statements.201Where, as here, a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable Guideline. An error in interpreting such a policy statement could lead to an incorrect determination that a departure was appropriate. In that event, the resulting sentence would be one that was "imposed as a result of an incorrect application of the sentencing guidelines" within the meaning of § 3742(f)(1).2 Similarly, an erroneous calculation under the Sentencing Table, from which all Guidelines sentencing ranges are derived, could properly be reviewed as an "incorrect application of the sentencing guidelines" under § 3742(f)(1) even though the Table itself is not officially designated as a "guideline." See USSG ch. 5, pt. A.Because use of a departure ground prohibited by a policy statement can be an "incorrect application" of the Guidelines under § 3742(f)(1), we also agree with both Williams and the Government that, when a district court relies upon an improper ground in departing from the guideline range, a reviewing court may not affirm a sentence based solely on its independent assessment that the departure is reasonable under § 3742(f)(2). Section 3742(f) specifies two circum-2 The dissent states that an error in interpreting a policy statement governing departures "is not, in itself, subject to appellate review." Post, at 212. The dissent believes that all departure decisions must be reviewed under the "reasonableness" standard of §3742(f)(2) and that the "reasonableness" determination includes an assessment of whether the district court properly found an "'aggravating or mitigating circumstance ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.''' Post, at 218 (quoting 18 U. S. C. § 3553(b)). But, in determining whether a circumstance was adequately taken into consideration, a court must consider "the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." § 3553(b). Thus, the dissent would appear to agree that an appellate court can review the validity of a district court's reasons for departure for consistency with the Commission's policy statements; it simply considers that inquiry to go to the "reasonableness" of the decision to depart rather than to the correct application of the Guidelines.202stances in which a court of appeals must remand for resentencing: if the sentence was imposed as a result of an incorrect application of the Guidelines or if the sentence is an unreasonable departure from the applicable guideline range. The statute does not allow a court to focus on one remand provision to the exclusion of the other.We do not believe that the dissent's contrary conclusion is supported by declarations from Congress and the Sentencing Commission which state that departure sentences are reviewable under § 3742(f)(2). Post, at 209-210, 212-213. We are unable to find any indication in those statements that departures from the Guidelines are to be reviewed exclusively under § 3742(f)(2). Thus, we believe that, while departure decisions are properly reviewed under § 3742(f)(2), they are also properly reviewed under §3742(f)(1) when they are the result of an incorrect application of the Guidelines (considered in light of the relevant policy statements) that govern departure decisions. In order to give full effect to both provisions, therefore, the reviewing court is obliged to conduct two separate inquiries. First, was the sentence imposed either in violation of law or as a result of an incorrect application of the Guidelines? If so, a remand is required under § 3742(f)(1). If the court concludes that the departure is not the result of an error in interpreting the Guidelines, it should proceed to the second step: is the resulting sentence an unreasonably high or low departure from the relevant guideline range? If so, a remand is required under § 3742(f)(2).Williams argues further that whenever a court of appeals finds that a district court considered an erroneous factor in sentencing, a remand is automatically required under § 3742(f)(1) in order to rectify an "incorrect application" of the Guidelines. We disagree. Section 3742(f)(1) does not call for a remand every time a sentencing court might misapply a provision of the Guidelines; rather, remand is required only if the sentence was "imposed as a result of an incorrect203application" of the Guidelines. When a district court has not intended to depart from the Guidelines, a sentence is imposed "as a result of" an incorrect application of the Guidelines when the error results in the district court selecting a sentence from the wrong guideline range. When a district court has intended to depart from the guideline range, a sentence is imposed "as a result of" a misapplication of the Guidelines if the sentence would have been different but for the district court's error. Accordingly, in determining whether a remand is required under §3742(f)(1), a court of appeals must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors.We conclude that the party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i. e., that the error did not affect the district court's selection of the sentence imposed. See Fed. Rule Crim. Proc. 52(a).BIf the party defending the sentence persuades the court of appeals that the district court would have imposed the same sentence absent the erroneous factor, then a remand is not required under § 3742(f)(1), and the court of appeals may affirm the sentence as long as it is also satisfied that the departure is reasonable under § 3742(f)(2). The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing. In assessing reasonableness under § 3742(f)(2), the Act directs a court of appeals to examine the factors to be considered in imposing a204sentence under the Guidelines, as well as the district court's stated reasons for the imposition of the particular sentence. § 3742(e). A sentence thus can be "reasonable" even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.cThe dissent interprets the "reasonableness" standard of § 3742(f)(2) to be the sole provision governing appellate review of departure decisions. The dissent also posits a twostep test of reasonableness: the appellate court must determine the reasonableness of the district court's decision to depart based on the court's stated reasons for departure, post, at 218, and the appellate court must determine the reasonableness of the amount or extent of departure, post, at 218-220. This is similar to our two-step inquiry, see supra, at 201-202, for determining when a remand is required. The dissent thus agrees that "[w]here all the reasons enunciated by the district court to support departure are found to be invalid," the appellate court "must set aside the sentence and remand the case," post, at 218, although it would find such a remand necessary because "the departure is per se unreasonable," ibid., and not because it was imposed "as a result of" an incorrect application of the Guidelines. When some but not all of the district court's reasons for departure are invalid, however, the dissent's position requires the appellate court to consider whether the district court could have based its departure on the remaining factors, post, at 219, and not whether it would still have chosen so to act, supra, at 203.In practical effect, therefore, the divergence of the dissent's interpretation of the statute from our own is in the degree of an appellate court's authority to affirm a sentence when the district court, once made aware of the errors in its interpretation of the Guidelines, may have chosen a different205sentence. Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals' traditional deference to a district court's exercise of its sentencing discretion. The selection of the appropriate sentence from within the guideline range, as well as the decision to depart from the range in certain circumstances, are decisions that are left solely to the sentencing court. USSG § 5K2.0, p. s. The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, "it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence." Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983).Significantly, Congress amended the Act in 1986 to delete certain provisions that authorized an appellate court to correct a sentence determined to have been imposed as a result of an incorrect application of the Guidelines. See Criminal Law and Procedure Technical Amendments Act of 1986, § 73, 100 Stat. 3617. That action confirms our belief that it is the prerogative of the district court, not the court of appeals, to determine, in the first instance, the sentence that should be imposed in light of certain factors properly considered under the Guidelines.III AAt oral argument in this Court, petitioner's counsel contended that both of the District Court's stated grounds for departure were invalid and therefore that Williams' sentence must have resulted from an incorrect application of the Guidelines. Tr. of Oral Arg. 42-43. Counsel argued that not only was it improper for the District Court to rely upon Williams' prior arrest record, but also that the Guidelines prevented the court from considering convictions more than 15 years old. Id., at 43. The Guidelines explicitly authorize206a district court to base a departure on outdated convictions that are "evidence of similar misconduct," see USSG § 4A1.2, comment., n. 8, but the Circuits are divided as to whether, by implication, they prohibit a departure based on nonsimilar outdated convictions. Compare, e. g., United States v. Aymelek, 926 F.2d 64, 72-73 (CA1 1991) (nonsimilar outdated convictions may be appropriate grounds for departure); United States v. Russell, 905 F.2d 1439, 1444 (CAlO 1990) (same), with United States v. Leake, 908 F.2d 550, 554 (CA9 1990) (upward departure can never be based on nonsimilar outdated convictions). In this case, the propriety of the District Court's consideration of Williams' nonsimilar outdated convictions was not clearly presented in the petition for certiorari and was not briefed by either party. Accordingly, we decline to review the Court of Appeals' determination that Williams' outdated convictions were reliable information that his criminal history category understated the extent of his criminal background. See 910 F. 2d, at 1578-1579.BThe Court of Appeals was obliged to review, under both remand provisions of § 3742(f), a departure from the guideline range in which it found one of the two stated grounds for departure to be valid and the other to be invalid. We are unable to ascertain from its opinion whether the Court of Appeals concluded that the District Court would have imposed the same sentence even without relying upon Williams' prior arrest record, see § 3742(f)(1), or whether it affirmed simply on the basis that the sentence was reasonable under § 3742(f)(2). We therefore vacate the judgment below affirming Williams' sentence, and remand the case for a determination whether the sentence was imposed "as a result of" the District Court's erroneous consideration of his prior arrests not resulting in prosecution.It is so ordered

OCTOBER TERM, 1991SyllabusWILLIAMS v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 90-6297. Argued November 6, 1991-Decided March 9, 1992Under the Sentencing Reform Act of 1984, the United States Sentencing Commission has promulgated Guidelines establishing sentencing ranges for different categories of federal offenses and defendants. The Act allows a district court to depart from a guideline range under certain circumstances, 18 U. S. C. § 3553(b), and provides for limited appellate review of sentences, requiring a remand for resentencing if a sentence (1) was imposed in violation of law or "as a result of an incorrect application" of the Guidelines, § 3742(f)(1), or (2) is an unreasonable departure from the applicable guideline range, §3742(f)(2). Petitioner Williams was convicted in the Federal District Court of possession of a firearm by a convicted felon. The applicable sentencing range for someone in his criminal history category and at his offense level is 18 to 24 months. However, the District Court departed upward from that range and sentenced him to 27 months' imprisonment, determining that his criminal history category was inadequate because it did not include two convictions that were too old to be counted in the Guidelines' criminal history calculation and because it did not reflect several prior arrests. The Court of Appeals agreed that the convictions were reliable information indicating more extensive criminal conduct than was reflected by Williams' criminal history category, but it rejected the District Court's reliance upon the prior arrests, finding that the Guidelines prohibit a court from basing a departure on a prior arrest record alone and that the District Court had not adequately explained the factual basis for its use of those arrests as a ground for departure. Although the District Court had used both proper and improper factors to justify departure, the Court of Appeals affirmed the sentence on the ground that it was reasonable in light of the proper factors standing alone.Held:1. A reviewing court may, in appropriate circumstances, affirm a sentence in which a district court's departure from a guideline range is based on both valid and invalid factors. Pp. 197-202.(a) Construing the plain language of the Guidelines and the Act, it is an incorrect application of the Guidelines for a district court to depart from the applicable sentencing range based on a factor that the Commission has already fully considered in establishing a guideline range or, as194Syllabusin this case, on a factor that the Commission has expressly rejected as a ground for departure. An "incorrect application of the sentencing guidelines" occurs when the departure ground is prohibited either by the Guidelines or by general policy statements regarding the Guidelines' application, which the Commission is also authorized to promulgate, 28 U. S. C. § 994(a)(2). A policy statement is an authoritative guide to the meaning of the applicable Guideline, and an error in the statement's interpretation could lead to an incorrect determination that departure was appropriate. Pp. 199-20l.(b) When a district court relies upon an improper ground in departing from a guideline range, a reviewing court may not affirm a sentence based solely on its independent assessment that the departure is reasonable under § 3742(f)(2). In order to give full effect to both § 3742(f)(1) and §3742(f)(2), the reviewing court must conduct separate inquiries under each provision to determine whether a remand is required. It may not focus on one provision to the exclusion of the other. pp. 201-202.(c) Williams' argument that a remand is automatically required under § 3742(f)(1) in order to rectify any "incorrect application" of the Guidelines is rejected. A remand is required only if a sentence is "imposed as a result of an incorrect application" of the Guidelines, i. e., if the sentence would have been different but for the district court's error. The party challenging the sentence bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, but not the burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals finds that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court determines that the error was harmless. Pp. 202-203.(d) If the court of appeals determines that a remand is not required under § 3742(f)(1), it may affirm the sentence as long as it is also satisfied that the departure is reasonable under §3742(f)(2). The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing. In assessing reasonableness, a court must examine the factors to be considered in imposing a sentence under the Guidelines and the district court's stated reasons for the sentence's imposition. §3742(e). A sentence can be "reasonable" even if some of the district court's reasons justifying departure are invalid, provided the remaining reasons are sufficient to justify the departure's magnitude. Pp. 203-204.(e) The limited appellate review of sentencing decisions does not alter the traditional deference a court of appeals owes to a district court's exercise of its sentencing discretion, and the selection of the ap-195Full Text of Opinion

1963_368

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Immigration and Nationality' Act of 1952, 66 Stat. 163, 269, 8 U.S.C. §§ 1101, 1484, provides by § 352:"(a) A person who has become a national by naturalization shall lose his nationality by --""(1) having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated, except as provided in section 353 of this title, [Footnote 1] whether such residence commenced before or after the effective date of this Act. . . ."(Italics added.)Appellant, a German national by birth, came to this country with her parents when a small child, acquired derivative American citizenship at the age of 16 through her mother, and, after graduating from Smith College, went abroad for postgraduate work. In 1956, while in France, she became engaged to a German national, returned here briefly, and departed for Germany, where she married and where she has resided ever since. Since her marriage, she has returned to this country on two occasions for visits. Her husband is a lawyer in Cologne, where appellant has been living. Two of her four sons, born in Germany, are dual nationals, having acquired American citizenship under § 301(a)(7) of the 1952 Act. The American citizenship of the other two turns on this case. In 1959, the United States denied her a passport, the State Department certifying that she had lost her American citizenship under § 352(a)(1), quoted above. Appellant sued for a declaratory judgment that she still is an American citizen. The District Court held against her, 218 F.Supp. Page 377 U. S. 165 302, and the case is here on appeal. [Footnote 2] 375 U.S. 893.The Solicitor General makes his case along the following lines.Over a period of many years, this Government has been seriously concerned by special problems engendered when naturalized citizens return for a long period to the countries of their former nationalities. It is upon this premise that the argument derives that Congress, through its power over foreign relations, has the power to deprive such citizens of their citizenship.Other nations, it is said, frequently attempt to treat such persons as their own citizens, thus embroiling the United States in conflicts when it attempts to afford them protection. It is argued that expatriation is an alternative to withdrawal of diplomatic protection. It is also argued that Congress reasonably can protect against the tendency of three years' residence in a naturalized citizen's former homeland to weaken his or her allegiance to this country. The argument continues that it is not invidious discrimination for Congress to treat such naturalized citizens differently from the manner in which it treats native-born citizens, and that Congress has the right to legislate with respect to the general class without regard to each factual violation. It is finally argued that Congress here, unlike the situation in Kennedy v. Mendoza-Martnez, 372 U. S. 144, was aiming only to regulate, and not to punish, and that what Congress did had been deemed appropriate not only by this country, but by many others, and is in keeping with traditional American concepts of citizenship.We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1. Page 377 U. S. 166While the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted,"becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual."Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827. And see Luria v. United States, 231 U. S. 9, 231 U. S. 22; United States v. MacIntosh, 283 U. S. 605, 283 U. S. 624; Knauer v. United States, 328 U. S. 654, 328 U. S. 658.Views of the Justices have varied when it comes to the problem of expatriation.There is one view that the power of Congress to take away citizenship for activities of the citizen is nonexistent absent expatriation by the voluntary renunciation of nationality and allegiance. See Perez v. Brownell, 356 U. S. 44, 356 U. S. 79 (dissenting opinion of JUSTICES BLACK and DOUGLAS); Trop v. Dulles, 356 U. S. 86 (opinion by CHIEF JUSTICE WARREN). That view has not yet commanded a majority of the entire Court. Hence, we are faced with the issue presented and decided in Perez v. Brownell, supra, i.e., whether the present Act violates due process. That, in turn, comes to the question put in the following words in Perez:"Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign relations . . . ?"356 U.S. at 356 U. S. 60. Page 377 U. S. 167 In that case, where an American citizen voted in a foreign election, the answer was in the affirmative. In the present case, the question is whether the same answer should be given merely because the naturalized citizen lived in her former homeland continuously for three years. We think not.Speaking of the provision in the Nationality Act of 1940, which was the predecessor of § 352(a)(1), Chairman Dickstein of the House said that the bill would "relieve this country of the responsibility of those who reside in foreign lands and only claim citizenship when it serves their purpose." 86 Cong.Rec. 11944. And the Senate Report on the 1940 bill stated:"These provisions for loss of nationality by residence abroad would greatly lessen the task of the United States in protecting through the Department of State nominal citizens of this country who are abroad but whose real interests, as shown by the conditions of their foreign stay, are not in this country."S.Rep. No. 2150, 76th Cong., 3d Sess., p. 4.As stated by Judge Fahy, dissenting below, such legislation, touching as it does on the "most precious right" of citizenship (Kennedy v. Mendoza-Martinez, 372 U.S. at 372 U. S. 159), would have to be justified under the foreign relations power"by some more urgent public necessity than substituting administrative convenience for the individual right of which the citizen is deprived."218 F. Supp. 302, 320.In Kennedy v. Mendoza-Martinez, supra, a divided Court held that it was beyond the power of Congress to deprive an American of his citizenship automatically and without any prior judicial or administrative proceedings because he left the United States in time of war to evade or avoid training or service in the Armed Forces. The Court held that it was an unconstitutional use of Page 377 U. S. 168 congressional power because it took away citizenship as punishment for the offense of remaining outside the country to avoid military service without, at the same time, affording him the procedural safeguards granted by the Fifth and Sixth Amendments. Yet even the dissenters, who felt that flight or absence to evade the duty of helping to defend the country in time of war amounted to manifest nonallegiance, made a reservation. JUSTICE STEWART stated:"Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction -- a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible.""This Court has never held that Congress' power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country."372 U.S. at 372 U. S. 214.This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable, and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is "so unjustifiable as to be violative of due process." Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499. A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live Page 377 U. S. 169 and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance, and in no way evidences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons.Reversed

U.S. Supreme CourtSchneider v. Rusk, 377 U.S. 163 (1964)Schneider v. RuskNo. 368Argued April 2, 1964Decided May 18, 1964377 U.S. 163SyllabusAppellant, who was born in Germany, came to this country with her parents as a child and acquired derivative American citizenship. She lived abroad since graduation from college, became married to a German national, and, except for two visits back to this country, has lived in Germany for the past eight years. The State Department denied her a passport, certifying that she had lost her American citizenship under § 352(a)(1) of the Immigration and Nationality Act of 1952, which provides that a naturalized citizen, with exceptions not material here, loses citizenship by continuous residence for three years in the country of origin. She thereupon sued in the District Court for a declaratory judgment that she is still an American citizen and has appealed from that court's adverse decision.Held by a majority of this Court, that § 352(a)(1) is discriminatory, and therefore violative of due process under the Fifth Amendment of the Constitution, since no restriction against the length of foreign residence applies to native-born citizens, though some members of that majority believe that Congress lacks constitutional power to effect involuntary divestiture of citizenship. Pp. 377 U. S. 164-169.218 F. Supp. 302, reversed. Page 377 U. S. 164

1979_79-81

MR. JUSTICE MARSHALL delivered the opinion of the Court.The Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq., provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for reemployment within 90 days of being discharged from the military must be reinstated to the former job without loss of seniority. This case presents the question whether supplemental unemployment benefits provided pursuant to the steel industry collective bargaining agreement are perquisites of seniority to which a returning veteran is entitled under the statute.IPetitioner Thomas Coffy was employed by respondent Republic Steel Corp. (Republic) from April 30, 1968, until September 17, 1968, and again from January 24, 1969, until September 9, 1969, when he entered military service. He served in the military until he was honorably discharged on August 16, 1971. He made timely application for reinstatement on September 14, 1971. Because Republic was then in the process of laying off employees and Coffy would already have been laid off if he had remained continuously employed during his period of military service, he was reinstated in layoff status. Coffy was recalled to work on July 1, 1972.While Coffy was laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the collective bargaining agreement between the major steel companies, including Republic, and the United Steelworkers of America (Steelworkers). Coffy received SUB payments for 25 weeks. [Footnote 1] If he had been employed by Republic during his period of military service, he would have been Page 447 U. S. 194 entitled to 52 weeks of SUB payments. Coffy, represented by the Department of Justice pursuant to 38 U.S.C. § 2022, filed this action in the United States District Court for the Northern District of Ohio, alleging that Republic violated his statutory reemployment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled. [Footnote 2]The District Court, relying on Foster v. Dravo Corp., 420 U. S. 92 (1975), entered judgment for respondent. The court held that the plan was "a bona fide effort to relate qualification for weekly benefits . . . to work actually performed," App. to Pet. for Cert. 24a, and therefore the benefits were not a perquisite of seniority. While the case was pending on petitioner's appeal to the United States Court of Appeals for the Sixth Circuit, we held in Alabama Power Co. v. Davis, 431 U. S. 581 (1977), that pension benefits are perquisites of seniority protected under the statute. The Court of Appeals sua sponte vacated the District Court's judgment and remanded for reconsideration in light of Alabama Power.On remand, the District Court adhered to its decision that SUB credits are not seniority rights entitled to statutory protection. 461 F. Supp. 344 (1978). The Court of Appeals affirmed on the opinion of the District Court. 590 F.2d 334 (1978). We granted certiorari, 444 U.S. 924 (1979), to resolve a conflict among the Circuits concerning this important question in the interpretation of the statute. [Footnote 3] We now reverse. Page 447 U. S. 195IIThe Vietnam Era Veterans' Readjustment Assistance Act of 1974 (Act), 38 U.S.C. § 2021 et seq., requires that returning veterans be reinstated to the jobs they left for military service "or to a position of like seniority, status, and pay." § 2021(a)(b)(i). [Footnote 4] The Act further provides that the veteran Page 447 U. S. 196 be reinstated "without loss of seniority." § 2021(b)(1). We interpreted the predecessor of § 2021 [Footnote 5] to mean that the returning veteran"does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war."Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 328 U. S. 284-285 (1946). Congress incorporated this principle into the present statute by providing that any person reinstated under the Act should be given "such status in the person's employment as the person would have enjoyed if such person had continued in such employment continuously" during the period of military service. § 2021(b)(2). The statute is to be liberally construed for the benefit of the returning veteran. Fishgold v. Sullivan Drydock & Repair Corp, supra, at 328 U. S. 285.We have several times had occasion to consider whether a particular type of benefit is a perquisite of seniority. Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), involved a claim for severance pay. The amount of the payment depended on the employee's length of "compensated service." Id. at 383 U. S. 228. We rejected the employer's argument that the payment was not based on seniority, but on total service to the company. Rather, we held, the "real nature" of the payments was compensation for the loss of the job. Id. at 383 U. S. 230. Because "the cost to an employee of losing his job is not measured by how much work he did in the past . . . but by the rights and benefits he forfeits by giving up his job" -- rights and benefits that Page 447 U. S. 197 are largely determined by seniority -- the severance payment was "just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall." Ibid.We reached a different result in evaluating a claim for vacation benefits in Foster v. Dravo Corp., 420 U. S. 92 (1975). The real nature of that benefit, we observed, was reflected in "the common conception of a vacation as a reward for and respite from a lengthy period of labor," id. at 420 U. S. 101. The contractual provisions for additional vacation credits and higher benefits for overtime work and for pro rata vacations for employees laid off before achieving the necessary number of weeks worked supported that conception. Accordingly, we held that vacation pay was intended as a form of deferred short-term compensation for work actually performed, and was not, therefore, a seniority right protected by the statute.Most recently, in Alabama Power Co. v. Davis, 431 U. S. 581 (1977), we held that pension benefits were perquisites of seniority for purposes of the Act. Although the amount of the payment was directly dependent on the years of accredited service, the true nature of the benefits was "a reward for length of service," id. at 431 U. S. 593. The lengthy period required for vesting, the use of payment formulas based on earnings at the time of retirement, and "the function of pension plans in the employment system" -- namely, to provide financial security to employees, assure a sable workforce, and increase efficiency -- all led to the conclusion that pension payments "are predominantly rewards for continuous employment with the same employer." Id. at 431 U. S. 594. In Alabama Power, we summarized the principles that have emerged from the cases and concluded that they establish a two-pronged test for determining whether a benefit is a perquisite of seniority under the Act. First, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service. Id. at 431 U. S. 589. Second, the nature of the benefit must be "a reward for length of service," rather Page 447 U. S. 198 than a form of "short-term compensation for services rendered." Ibid.Our task, then, is to evaluate the SUB plan at issue in this case in light of these principles.IIIAThe first SUB plan for the steel industry was established through collective bargaining in 1956. The revised plan which is the subject of this action became effective January 1, 1969. The plan provides three types of benefits: a "weekly benefit," a "short week benefit," [Footnote 6] and a relocation allowance. Petitioner's claim involves weekly benefits, which are provided to employees laid off from work as a supplement to unemployment compensation benefits provided under state law. The amount of an employee's weekly SUB payment is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which the employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off.Section 2.0 of the plan provides that an employee accrues one-half credit for each week in which he worked any hours, or was paid for any hours not worked (such as for vacation or jury duty), or lost any hours because he was performing certain union duties or was on disability leave. [Footnote 7] A maximum of 52 credit units may be accrued by an employee at any one time. An employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to Page 447 U. S. 199 being laid off. An employee who meets this threshold requirement may receive one week of supplemental unemployment benefits for each credit unit he has accumulated.The plan also provides, in § 7.2:"If an employee enters the armed services directly from the employment of the Company, he shall, while in service, be deemed for the purposes of the Plan to be on leave of absence and shall not be entitled to any Benefit. Only the credit units credited to him at the time of his entry into such service shall be credited to him upon his reinstatement as an employee of the Company with unbroken continuous service, except as may otherwise be required by law."Under this provision, Republic declined to credit petitioner for his military service time in calculating the number of SUB payments to which he was entitled. [Footnote 8] We must determine whether the provision is in conflict with the Act.BThe SUB plan satisfies the reasonable certainty prong of the Alabama Power test, since, if Coffy had remained continuously employed by Republic instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. We conclude that the plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred short-term compensation, but are a reward for length of service closely analogous to traditional forms of seniority. Page 447 U. S. 200The concept of supplemental unemployment benefits evolved from the demand by organized labor for a guaranteed annual wage. When it became evident that a guaranteed annual wage was impractical in their industries, unions such as the Steelworkers and the United Auto Workers transformed their guaranteed annual wage demands into proposals to supplement existing unemployment compensation programs. These proposals ultimately were adopted in several industries in the form of SUB plans. See J. Becker, Guaranteed Income for the Unemployed: The Story of SUB 9-20 (1968); A. Freedman, Security Bargains Reconsidered: SUB, Severance Pay, Guaranteed Work 4-5 (The Conference Board 1978). From the beginning, then, the purpose of SUB plans was to provide employment security regardless of the hours worked, rather than to afford additional compensation for work actually performed. From the employer's standpoint SUB's, like pension benefits, help to assure a stable workforce through periods of short-term layoffs and, like severance payments, may increase management flexibility in implementing technological advances. See Becker, supra at 55-57, 248.The essential function of SUB plans is to provide economic security for regular employees in the event they are laid off. Protection against layoff is, of course, one of the traditional attributes of seniority. SUB payments provide a second-level protection against layoff. If an employee does not have sufficient seniority to avoid being laid off, he may still have achieved the minimum level of seniority necessary to receive SUB payments during his layoff. Unlike vacations, SUB's cannot be compensation for work performed, a "reward for and respite from a lengthy period of labor," Foster v. Dravo Corp., 420 U.S. at 420 U. S. 101, for they are contingent on the employee's being thrown out of work; unless the employee is laid off, he will never receive SUB payments. In this sense, SUB's are analogous to severance payments: they are "compensation for loss of jobs." Accardi, 383 U.S. at 383 U. S. 230. See Freedman, supra at 2. Page 447 U. S. 201We turn now to the specific provisions of the steel industry SUB plan to determine whether they support or contradict our understanding of the general purpose of SUB programs. The District Court held that the availability of SUB payments was so closely related to hours actually worked as to demonstrate that the plan was a "bona fide effort to compensate for work actually performed.'" 461 F. Supp. at 346. That conclusion is at odds with the literal terms of the plan, which provide that SUB credits are earned for all weeks in which an employee has any hours in one of the three categories specified in § 2.0. This provision was the result of a 1962 modification of the original 1956 plan, which had directly correlated hours worked with credits earned by providing that 1/10 credit would be earned for every eight hours worked, up to a maximum of 1/2 unit per week. The District Court recognized that the present plan did not expressly relate entitlement to benefits to hours worked, but found this fact to be of no significance because"'[c]ircumstances existing in the steel industry, as revealed by the uncontradicted evidence in this case, demonstrate that, in practice, the minimum workweek is 32 hours. . . . The plan must be construed in light of actual conditions in the steel industry. The possibility of an employee working only one hour during any week does not exist.'"Id. at 347. [Footnote 9] Page 447 U. S. 202We of course accept the District Court's factual findings concerning the practice in the industry. We do not agree, however, that a de facto 32-hour minimum workweek means that SUB's are intended as deferred compensation for work performed. Credits are also earned for weeks in which the employee is paid for any hours not worked, as for jury duty, or in which any hours are lost because the employee is disabled or performing certain union duties. These hours, even if considered similar to hours worked because the employee receives "wage substitutes" for them, are not subject to the 32-hour industry custom.We observe also that the normal workweek in the industry, as provided by Art. 6, § 1, of the collective bargaining agreement, is 40 hours, not 32. The SUB plan makes no provision for accrual of additional credits for hours worked over 32 per week, or for overtime work. This omission is not suggestive of a desire to compensate work actually performed.Further, a major reason that it is rare for an employee who works at all to work fewer than 32 hours in a week is the "short week benefit" provided under the SUB plan. [Footnote 10] Qualified Page 447 U. S. 203 employees who work some hours, but fewer than 32, receive benefits under the short-week provisions of the plan; those who do not work at all receive weekly benefits. The union's success in effectively achieving a guaranteed 32-hour week through the mechanism of the short-week benefit does not logically alter the nature of the weekly benefit negotiated as part of the same plan.Even if eligibility for SUB payments were closely related to hours worked, that fact would not, by itself, render them compensation, rather than seniority rights. We emphasized in Alabama Power that it is the nature of the benefit, not the formula by which it is calculated, that is the crucial factor, for"[e]ven the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee."431 U.S. at 431 U. S. 592. As we have explained, the specific provisions of the steel industry plan support, rather than contradict, our conclusion that SUB payments are in the nature of a reward for length of service.The District Court concluded that SUB payments could not be perquisites of seniority for the further reason that the benefits are not proportionate to the length of service. Under the plan, an employee must have a minimum of two years' seniority to be eligible for SUB payments, no employee may accumulate more than 52 units of SUB credits, and the amount of the benefit does not increase with the length of service as would a pension benefit. Thus, an employee who has worked continuously for two years will have met the threshold requirement and will also have accumulated 52 units Page 447 U. S. 204 of credit; [Footnote 11] he is eligible for benefits for the same length of time, and computed according to the same formula, as an employee with 20 years' seniority. [Footnote 12] According to the District Court, the facts that no benefits are available to employees whose seniority is less than two years and that after 52 credits have been accumulated additional seniority does not lead to increased benefits were evidence that the benefit is not a reward for longevity of service. [Footnote 13] Page 447 U. S. 205A benefit need not be meticulously proportioned to longevity of service to constitute a perquisite of seniority, however, as long as it performs a function akin to traditional forms of seniority. In fact, the very factors the District Court cited to show that SUB's are not forms of seniority benefits are equally relevant to demonstrate that they are not compensation for services rendered. An employee receives no benefits if he has worked for fewer than two years when he is laid off or if he voluntarily terminates his employment. Such a threshold requirement is more characteristic of seniority provisions than of compensation; in fact, other seniority benefits of the collective bargaining agreement between Republic and the Steelworkers are also available only to employees with two years' seniority. [Footnote 14] Similarly, an employee cannot accumulate more than 52 credits at a time; any work performed after that ceiling is reached goes "uncompensated." Moreover, the amount of the benefit payment is determined by four factors, none of which appears designed to compensate for hours actually worked: the wage rate at the time of layoff (not at the time the credits were earned); the number of dependents of the employee; the amount of state unemployment compensation received; and the financial position of the benefit fund.IVWe conclude that the purpose and function of the steel industry SUB plan is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period. Thus, the benefits are in the nature of a reward for length of service, and do not represent deferred short-term compensation for services actually rendered. Accordingly, SUB payments are perquisites Page 447 U. S. 206 of seniority to which returning veterans are entitled under the Act. 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 CourtCoffy v. Republic Steel Corp., 447 U.S. 191 (1980)Coffy v. Republic Steel Corp.No. 79-81Argued February 27, 1980Decided June 10, 1980447 U.S. 191SyllabusThe Vietnam Era Veterans' Readjustment Assistance Act of 1974 (Act) provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for re-employment within 90 days of being discharged from the military must be reinstated to the former job "without loss of seniority," 38 U.S.C. § 2021(b)(1). Upon being honorably discharged from military service, petitioner made timely application for reinstatement with respondent, his former employer. Because respondent was then in the process of laying off employees, petitioner was reinstated in layoff status. While laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the applicable steel industry collective bargaining agreement. Under the plan, an employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to being laid off, and the amount of the weekly benefit is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which an employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off, with one-half credit being accrued for each week in which he worked "any" hours, or was paid for "any" hours not worked (such as for vacation or jury duty), or lost "any" hours because he was performing certain union duties or was on disability leave. The plan also provides that, if an employee enters the Armed Services, only the credit units credited to him at the time of his entry into the service shall be credited to him upon reinstatement as an employee with unbroken continuous service, except as may otherwise be required by law. Petitioner received SUB payments for only 25 weeks, whereas, if he had been employed by respondent during his period of military service, he would have been entitled to 52 weeks of payments. Alleging that respondent violated his statutory reemployment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled, petitioner, represented by the Department of Justice pursuant to the Act, filed an action Page 447 U. S. 192 in Federal District Court, which ultimately held that SUB payments were not a perquisite of seniority entitled to statutory protection. The Court of Appeals affirmed.Held: SUB payments provided pursuant to the steel industry collective bargaining agreement are perquisites of seniority to which a returning veteran is entitled under the Act. Pp. 447 U. S. 195-206.(a) Under the Act, which is to be liberally construed for the returning veteran's benefit, the veteran steps back on the seniority escalator at the precise point he would have occupied had he kept his position with his employer continuously during the period of military service. Cf. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275. In determining whether a particular benefit qualifies as a perquisite of seniority under the Act, first, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service, and, second, the "real nature" of the benefit must be "a reward for length of service," rather than "a form of short-term compensation for services rendered." Alabama Power Co. v. Davis, 431 U. S. 581, 431 U. S. 589. Pp. 447 U. S. 195-198.(b) The SUB plan satisfies the reasonable certainty prong of the Alabama Power test, since, if petitioner had remained continuously employed by respondent instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. The plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred short-term compensation, but are a reward for length of service closely analogous to traditional forms of seniority. The purpose and function of SUB plans is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period, and the specific provisions of the steel industry SUB plan support this general purpose of SUB programs. Pp. 447 U. S. 199-206.590 F.2d 334, reversed and remanded. MARSHALL, J., delivered the opinion for a unanimous Court. Page 447 U. S. 193

1973_72-1570

DOUGLAS, J., filed a dissenting opinion, in Part II of which BRENNAN and MARSHALL, JJ., joined, post, p. 416 U. S. 648.MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent was tried before a jury in Massachusetts Superior Court and convicted of first-degree murder. [Footnote 1] The jury recommended that the death penalty not be imposed, and respondent was sentenced to life imprisonment. He appealed to the Supreme Judicial Court of Massachusetts, contending, inter alia, that certain of the prosecutor's remarks during closing argument deprived him of his constitutional right to a fair trial. The Supreme Judicial Court affirmed. [Footnote 2] That court acknowledged that the prosecutor had made improper remarks, but determined that they were not so prejudicial as to require reversal.Respondent then sought habeas corpus relief in the United States District Court for the District of Massachusetts. Page 416 U. S. 639 The District Court denied relief, stating: "[T]he prosecutor's arguments were not so prejudicial as to deprive [DeChristoforo] of his constitutional right to a fair trial." [Footnote 3] The Court of Appeals for the First Circuit reversed by a divided vote. [Footnote 4] The majority held that the prosecutor's remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process. We granted certiorari, 414 U.S. 974 (1973), to consider whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent's due process rights. We hold they were not, and so reverse.IRespondent and two companions were indicted for the first-degree murder of Joseph Lanzi, a passenger in the car in which the defendants were riding. Police had stopped the car at approximately 4 a.m. on April 18, 1967, and had discovered Lanzi's dead body along with two firearms, one of which had been fired. A second gun, also recently fired, was found a short distance away. Respondent and one companion avoided apprehension at that time, but the third defendant was taken into custody. He later pleaded guilty to second-degree murder.Respondent and the other defendant, Gagliardi, were finally captured and tried jointly. The prosecutor made little claim that respondent fired any shots, but argued that he willingly assisted in the killing. Respondent, on the other hand, maintained that he was an innocent passenger. At the close of the evidence, but before final argument, Gagliardi elected to plead guilty to a charge of second-degree murder. The court advised the jury that Page 416 U. S. 640 Gagliardi had pleaded guilty and that respondent's trial would continue. [Footnote 5] Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given.Respondent's claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt, [Footnote 6] perhaps offered to rebut a somewhat personalized argument by respondent's counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark. [Footnote 7] It turned to a second remark that it deemed "more serious."The prosecutor's second challenged comment was directed at respondent's motives in standing trial:"They [the respondent and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder. [Footnote 8]"Respondent's counsel objected immediately to the statement, and later sought an instruction that the remark was improper, and should Page 416 U. S. 641 be disregarded. [Footnote 9] The Court then gave the following instruction:"Closing arguments are not evidence for your consideration. . . .""Now, in his closing, the District Attorney, I noted, made a statement:""I don't know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.""There is no evidence of that whatsoever, of course; you are instructed to disregard that statement made by the District Attorney.""Consider the case as though no such statement was made. [Footnote 10]"The majority of the Supreme Judicial Court of Massachusetts, though again not disputing that the remark was improper, held that it was not so prejudicial as to require a mistrial, and further stated that the trial judge's instruction "was sufficient to safeguard the defendant's rights." [Footnote 11] Despite this decision and the District Court's denial of a writ of habeas corpus, the Court of Appeals found that the comment was potentially so misleading and prejudicial that it deprived respondent of a constitutionally fair trial. Page 416 U. S. 642The Court of Appeals reasoned that the jury would be naturally curious about respondent's failure to plead guilty, and that this curiosity would be heightened by Gagliardi's decision to plead guilty at the close of the evidence. In this context, the court thought, the prosecutor's comment that respondent hoped for conviction on a lesser offense would suggest to the jury that respondent had sought to plead guilty, but had been refused. Since the prosecutor was in a position to know such facts, the jury may well have surmised that respondent had already admitted guilt in an attempt to secure reduced charges. This, said the Court of Appeals, is the inverse of, but a parallel to, intentional suppression of favorable evidence. The prosecutor had deliberately misled the jury, and even if the statement was made thoughtlessly, "in a first degree murder case, there must be some duty on a prosecutor to be thoughtful." [Footnote 12] Therefore, the District Court had erred in denying respondent's petition.IIThe Court of Appeals in this case noted, as petitioner urged, that its review was "the narrow one of due process, and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court." [Footnote 13] We regard this observation as important, for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a "failure to observe that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U. S. 219, 314 U. S. 236 (1941). We stated only this Term in Cupp v. Naughten, 414 U. S. 141 (1973), when reviewing an instruction given in a state court:"Before a federal court may overturn a conviction Page 416 U. S. 643 resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. [Footnote 14]"This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersingner v. Hamlin, 407 U. S. 25 (1972), or in which the prosecutor's remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U. S. 609 (1965). [Footnote 15] When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor's remark about respondent's expectations at trial, by itself, so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention.Conflicting inferences have been drawn from the prosecutor's statement by the courts below. Although the Court of Appeals stated flatly that "the prosecuting attorney turned Gagliardi's plea into a telling stroke against [DeChristoforo]" [Footnote 16] by implying respondent had Page 416 U. S. 644 offered to plead guilty as well, the dissent found the inference to be "far less obvious." [Footnote 17] The Supreme Judicial Court of Massachusetts stated that it considered the same argument illogical:"It is not logical to conclude that the jury would accept any implied argument of the prosecutor that, because one of the men whom the defendant blamed for the murder had pleaded guilty, the defendant was any less firm in his assertion that he himself was not guilty of any crime whatsoever. [Footnote 18]"Thus, it is by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it. Five Justices of the Supreme Judicial Court of Massachusetts, and at least one federal judge, have all confessed difficulty in making this speculative connection.In addition, the trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case. The prosecutor, as is customary, had previously told the jury that his argument was not evidence, [Footnote 19] and the trial judge specifically reemphasized that point. Then the judge directed the jury's attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it. [Footnote 20] Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character. Page 416 U. S. 645In Cupp v. Naughten, supra, the respondent had challenged his conviction on the ground that a "presumption of truthfulness" instruction, given by the state trial court, had deprived him of the presumption of innocence and had shifted the State's burden of proof to himself. Holding that the instruction, although perhaps not advisable, did not violate due process, we stated:"In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 271 U. S. 107 (1926). While this does not mean that an instruction, by itself, may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus, not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction. [Footnote 21]"Similarly, the prosecutor's remark here, admittedly an ambiguous one, was but one moment in an extended trial, and was followed by specific disapproving instructions. Although the process of constitutional line-drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent's trial so fundamentally unfair as to deny him due process. Page 416 U. S. 646IIIWe do not find the cases cited by the Court of Appeals to require a different result. In Miller v. Pate, 386 U. S. 1 (1967), the principal case relied upon, this Court held that a state prisoner was entitled to federal habeas relief upon a showing that a pair of stained undershorts, allegedly belonging to the prisoner and repeatedly described by the State during trial as stained with blood, was, in fact, stained with paint. In the course of its opinion, this Court said:"It was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. . . ."". . . The record of the petitioner's trial reflects the prosecution's consistent and repeated misrepresentation that People's Exhibit 3 was, indeed, 'a garment heavily stained with blood.'"Id. at 6. A long series of decisions in this Court, [Footnote 22] of course, had established the proposition that the "Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence." Id. at 7. The Court in Miller found those cases controlling.We countenance no retreat from that proposition in observing that it falls far short of embracing the prosecutor's remark in this case. The "consistent and repeated misrepresentation" of a dramatic exhibit in evidence may profoundly impress a jury, and may have a significant impact on the jury's deliberations. Isolated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion, not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed Page 416 U. S. 647 in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.The Court of Appeals' reliance on Brady v. Maryland, 373 U. S. 83 (1963), is likewise misplaced. In Brady, the prosecutor had withheld evidence, a statement by the petitioner's codefendant, which was directly relevant to the extent of the petitioner's involvement in the crime. Since the petitioner had testified that his codefendant had done the actual shooting, and since the petitioner's counsel was not contesting guilt, but merely seeking to avoid the death penalty, evidence of the degree of the petitioner's participation was highly significant to the primary jury issue. As in Miller, manipulation of the evidence by the prosecution was likely to have an important effect on the jury's determination. But here there was neither the introduction of specific misleading evidence important to the prosecution's case in chief nor the nondisclosure of specific evidence valuable to the accused's defense. There were, instead, a few brief sentences in the prosecutor's long and expectably hortatory closing argument which might or might not suggest to a jury that the respondent had unsuccessfully sought to bargain for a lesser charge. We find nothing in Brady to suggest that due process is so easily denied.The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to Page 416 U. S. 648 amount to a denial of constitutional due process. [Footnote 23] Since we believe that distinction should continue to be observed, we reverse the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtDonnelly v. DeChristoforo, 416 U.S. 637 (1974)Donnelly v. DeChristoforoNo. 72-1570Argued February 20, 1974Decided May 13, 1974416 U.S. 637SyllabusDuring the course of a joint first-degree murder trial, respondent's codefendant pleaded guilty to second-degree murder, of which the trial court advised the jury, stating that the trial against respondent would continue. In his summation, the prosecutor stated that respondent and his counsel had said that they"hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder."Respondent's counsel objected, and later sought an instruction that the remark was improper, and should be disregarded. In its instructions, the trial court, after reemphasizing the prosecutor's statement that his argument was not evidence, declared that the challenged remark was unsupported, and admonished the jury to ignore it. Respondent was convicted of first-degree murder. The State's highest court ruled that the prosecutor's remark, though improper, was not so prejudicial as to warrant a mistrial, and that the trial court's instruction sufficed to safeguard respondent's rights. The District Court denied respondent's petition for a writ of habeas corpus. The Court of Appeals reversed, concluding that the challenged comment implied that respondent, like his codefendant, had offered to plead guilty to a lesser offense, but was refused, and that the comment was thus potentially so misleading and prejudicial as to deprive respondent of a constitutionally fair trial.Held: In the circumstances of this case, where the prosecutor's ambiguous remark in the course of an extended trial was followed by the trial court's specific disapproving instructions, no prejudice amounting to a denial of constitutional due process was shown. Miler v. Pate, 386 U. S. 1; Brady v. Maryland, 373 U. S. 83, distinguished. Pp. 416 U. S. 642-648.473 F.2d 1236, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, in which WHITE, J., Page 416 U. S. 638 joined, post, p. 416 U. S. 648. DOUGLAS, J., filed a dissenting opinion, in Part II of which BRENNAN and MARSHALL, JJ., joined, post, p. 416 U. S. 648.

1982_81-1180

JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the issue whether firearms disabilities imposed by 18 U.S.C. §§ 922(g) and (h) apply with respect to a person who pleads guilty to a state offense punishable by imprisonment for more than one year when the record of the proceeding subsequently is expunged under state procedure following a successfully served term of probation.ITitle IV of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 226, was amended by the Gun Control Act of 1968, 82 Stat. 1214, and now appears as 18 U.S.C. § 921 et seq. (1976 ed. and Supp. V). Title IV makes it unlawful for any person "who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" [Footnote 1] to ship, transport, or receive any firearm or ammunition in interstate commerce. §§ 922(g) and (h). Title IV also makes it unlawful to engage in the business of importing, manufacturing, or dealing in firearms without a license from the Secretary of the Treasury. §§ 922(a) and 923(a) One ground, specified by the statute, for denial of a license is the fact that the applicant is barred by §§ 922(g) and (h) from transporting, shipping, or receiving firearms or ammunition. § 923(d)(1)(B). The same statute provides that, where the applicant is a corporation, partnership, or association, a license will be denied Page 460 U. S. 106 if an individual possessing, directly or indirectly, the power to direct the management and policies of the entity is under the prohibitions imposed by §§ 922(g) and (h). Title IV also makes it a crime to violate any of its provisions or to make a willful misrepresentation with respect to information required to be furnished. § 924(a).Although, as noted above, Title IV imposes disabilities upon any "person who has been convicted . . . of a crime punishable by imprisonment for a term exceeding one year," it does permit certain persons in that category to apply to the Secretary for relief from those disabilities. Under § 925(c), the Secretary may grant relief"if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."When the Secretary grants relief, he must publish notice of his action promptly in the Federal Register, together with a statement of reasons. Ibid.IIDavid F. Kennison, a resident of Columbia, S.C. is a director, chairman of the board, and a shareholder of respondent New Banner Institute, Inc., a corporation. In September, 1974, when Kennison was in Iowa, he was arrested and charged with kidnaping his estranged wife. After plea negotiation, see Tr. of Oral Arg. 40-41, he pleaded guilty to the state crime of carrying a concealed handgun, and the kidnaping charge was dismissed. The concealed weapon offense, under then Iowa law, see Iowa Code §§ 695.2 and .3 (1977), was punishable by a fine of not more than $1,000 or by imprisonment for not more than five years, or both. [Footnote 2] In accord Page 460 U. S. 107 with the provisions of Iowa Code § 789 A. 1 (1977), then in effect, [Footnote 3] the state court entered an order reciting that Kennison had "entered a plea of guilty to the charge of carrying a concealed weapon," that "the defendant has consented to a deferment of sentence in this matter," that "he has stable employment," and that there were "unusual circumstances" Page 460 U. S. 108 in the case. The order then stated that the court "deferred" entry of a formal judgment and placed Kennison on probation.Kennison returned to South Carolina, where he completed his probation term. When that term expired in February, 1976, he was discharged pursuant to Iowa Code § 789 A. 6 (1977), then in effect, [Footnote 4] and the Iowa court's record with reference to the deferred judgment was expunged.In May, 1976, respondent filed three applications with the Treasury Department's Bureau of Alcohol, Tobacco and Firearms (Bureau), for licenses as a dealer in firearms and ammunition, as a manufacturer of ammunition, and as a collector of curios and relics. On the application forms, respondent listed Kennison as a "responsible person," that is, an individual possessing direct or indirect power to control the management and policies of respondent. See 18 U.S.C. § 923(d)(1)(B). In answering an inquiry on the forms as to whether such person had been convicted of a crime punishable by a prison term exceeding one year, respondent did not disclose the Iowa events or Kennison's plea of guilty in that State. The requested licenses were issued.The Bureau, however, subsequently learned of the Iowa concealed weapon charge and the plea of guilty. In conformity with the provisions of §§ 923(e) and (f)(1) and of 27 CFR Page 460 U. S. 109 § 178.75 (1982), it mailed respondent Notices of Contemplated Revocation of Licenses. After an informal hearing, the Bureau's Regional Regulatory Administrator issued the revocation notices. Respondent, pursuant to § 923(f)(2), then requested and received a formal hearing before an Administrative Law Judge. At that hearing, the Bureau contended that respondent's licenses should be revoked because respondent had failed to reveal that Kennison had been convicted of a felony and also because respondent had not been entitled to the licenses in the first place.The Administrative Law Judge recommended against revocation. App to Pet. for Cert. 41a. Although he concluded that Kennison's plea of guilty "represented a conviction . . . within the meaning of Section 922(g) and (h)," id. at 47a, he also concluded that respondent's statements in the applications did not justify revocation because its representatives had a good faith belief that Kennison had not been convicted within the meaning of the federal statute.On review, the Director of the Bureau, petitioner here, ruled that willful misrepresentation had not been shown; that Kennison, however, possessed the power to direct respondent's management and policies; that Kennison had been convicted in Iowa of an offense that brought him within the prohibitions of §§ 922(g) and (h); and that the licenses should be revoked because respondent was ineligible for them under § 923(d)(1)(B). App. to Pet. for Cert. 23a. The Director ordered the issuance of Final Notices of Revocation. Id. at 40a.Respondent then filed a timely petition for review in the United States District Court for the District of South Carolina. See § 923(f)(3). On cross-motions for summary judgment, the Director's motion was granted. On respondent's appeal, however, the United States Court of Appeals for the Fourth Circuit reversed. 649 F.2d 216 (1981). It concluded, id. at 219, that, although Kennison indeed had been "convicted" of an offense that triggered firearms disabilities, Page 460 U. S. 110 that fact could not serve as a predicate for a Gun Control Act violation or license revocation, because the conviction had been expunged under the Iowa deferred judgment procedure. The court acknowledged, id. at 220, that other Courts of Appeals entertained contrary views. [Footnote 5] Because of the importance of the issue and the obvious need for its resolution, we granted certiorari. 455 U.S. 1015 (1982).IIIThis is not the first time the Court has examined firearms provisions of the Omnibus Crime Control and Safe Streets Act and of the Gun Control Act. See Lewis v. United States, 445 U. S. 55 (1980); Scarborough v. United States, 431 U. S. 563 (1977); Baiett v. United States, 423 U. S. 212 (1976); Huddleston v. United States, 415 U. S. 814 (1974); United States v. Bass, 404 U. S. 336 (1971).Despite the fact that the slate on which we write is thus not a clean one, we state once again the obvious when we note that, in determining the scope of a statute, one is to look first at its language. Lewis v. United States, 445 U.S. at 445 U. S. 60; United States v. Turkette, 452 U. S. 576, 452 U. S. 580 (1981). If the language is unambiguous, ordinarily it is to be regarded as conclusive unless there is "a clearly expressed legislative intent to the contrary.'" Ibid., quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). It would seem, therefore, from the clear words of the statute ("any person . . . who has been convicted"), that, for respondent to be deprived of its licenses, Kennison must have been "convicted" of the type of crime specified by the statute, and the Iowa deferred judgment procedure and "expunction" Page 460 U. S. 111 must not have operated to nullify that conviction. If Kennison was not "convicted" in the first place, or if he was and that conviction somehow was rendered a nullity, respondent should not be ineligible for licenses on the grounds asserted by the Bureau.AWe turn first to the issue of conviction. The salient fact is Kennison's plea of guilty to a state charge punishable by more than a year's imprisonment. The usual entry of a formal judgment upon a jury verdict or upon a court's specific finding of guilt after a bench trial is absent. Present, however, are (a) the charge of a crime of the disqualifying type, (b) the plea of guilty to that charge, and (c) the court's placing Kennison upon probation.In Lewis v. United States, supra, we had under consideration § 1202(a)(1) of Title VII of the 1968 Act, 18 U.S.C.App. § 1202(a)(1), a gun control statute similar to and partially overlapping §§ 922(g) and (h). The language of § 1202 (a)(1) that is pertinent for present purposes is familiar, for it concerns any person who "has been convicted . . . of a felony." The Court there characterized the language of the statute as "sweeping." 445 U.S. at 445 U. S. 60. Despite the fact that Lewis' conviction was subject to collateral attack on constitutional grounds, the Court held that conviction to be disabling. What was important to the Court was the presence or fact of the conviction. In speaking of Title VII, we said: "No modifier is present, and nothing suggests any restriction on the scope of the term convicted.'" Ibid. Still further: "`Nothing on the face of the statute suggests a congressional intent to limit its coverage. . . .'" Ibid., quoting United States v. Culbert, 435 U. S. 371, 435 U. S. 373 (1978). And, finally: "Actually, . . . we detect little significant difference between Title IV and Title VII." 445 U.S. at 445 U. S. 64. Whether one has been "convicted" within the language of the gun control statutes is necessarily, as the Court of Appeals in the present case correctly recognized, 649 F.2d at Page 460 U. S. 112 219, a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State. United States v. Benson, 605 F.2d 1093, 1094 (CA9 1979). This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of "conviction."In Lewis, the possible, and indeed probable, vulnerability of the predicate conviction to collateral attack on constitutional grounds did not affect the disqualification. This followed from the statute's plain language and from a legislative history that, as we have repeatedly observed, makes clear that""Congress sought to rule broadly -- to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.'"" 445 U.S. at 445 U. S. 63, quoting Scarborough v. United States, 431 U.S. at 431 U. S. 572. Like considerations apply here with respect to whether Kennison was one who was "convicted" within the meaning of the federal statute. [Footnote 6] He voluntarily, in negotiation, entered a plea of guilty to a disqualifying crime. In some circumstances, we have considered a guilty plea alone enough to constitute a "conviction":"A plea of guilty differs in purpose and effect from a mere Page 460 U. S. 113 admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence."Kercheval v. United States, 274 U. S. 220, 274 U. S. 223 (1927). Accord, Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242 (1969). [Footnote 7]Here, we do have more. The state judge who noted Kennison's plea placed him on probation. To be sure, there was no written adjudication of guilt and there was no formal pronouncement of a sentence of imprisonment for a specified term. But that was due to special provisions of Iowa statutory law and procedure. It was plainly irrelevant to Congress whether the individual in question actually receives a prison term; the statute imposes disabilities on one convicted of "a crime punishable by imprisonment for a term exceeding one year." § 922(g) (emphasis supplied). It is also plain that one cannot be placed on probation if the court does not Page 460 U. S. 114 deem him to be guilty of a crime [Footnote 8] -- in this case, a crime that Congress considered demonstrative of unreliability with firearms. Thus, for purposes of the federal gun control laws, we equate a plea of guilty and its notation by the state court, followed by a sentence of probation, with being "convicted" within the language of §§ 922(g) and (h). See United States v. Woods, 696 F.2d 566, 570 (CA8 1982) ("once guilt has been established, whether by plea or by verdict, and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress").BThat, however, is not an end to the matter. We still must determine whether Iowa's expunction provisions, as carried out in Kennison's case prior to respondent's license applications, nullified his conviction for purposes of the federal statute. [Footnote 9]We recognized in Lewis that a qualifying pardon, see 27 CFR § 178.142 (1982), or a consent from the Secretary of the Treasury would operate to relieve the disability. 445 U.S. at 445 U. S. 60-61. [Footnote 10] So far as the face of the statute is concerned, Page 460 U. S. 115 however, expunction under state law does not alter the historical fact of the conviction, and does not open the way to a license despite the conviction, as does positive or "affirmative action," ibid., by way of the Secretary's consent on the conditions specified by § 925(c). In Lewis, it is true, we recognized an obvious exception to the literal language of the statute for one whose predicate conviction had been vacated or reversed on direct appeal. 445 U.S. at 445 U. S. 61, n. 5; see Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum.L.Rev. 326, 334, n. 42 (1976). But, in contrast, expunction does not alter the legality of the previous conviction, and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. Clearly, firearms disabilities may be attached constitutionally to an expunged conviction, see Lewis v. United States, 445 U.S. at 445 U. S. 65-68, and an exception for such a conviction, unlike one reversed or vacated due to trial error, is far from obvious. In Lewis, we held that the exception for convictions reversed or vacated on direct appeal did not make ambiguous the statute's clear application to convictions arguably vulnerable to collateral attack. We perceive no more ambiguity in the statute here than we did in Lewis.IVOther provisions of the federal gun control laws and related federal statutes fortify our conclusion that expunction of a state conviction was not intended by Congress automatically to remove the federal firearms disability.1. Even conviction is not necessary for disqualification. The mere existence of an outstanding indictment is sufficient Page 460 U. S. 116 under §§ 922(g) and (h). Congress was reaching far and was doing so intentionally.2. Sections 922(g) and (h) impose the same disabilities upon a person who "is under indictment" for certain crimes, or who "is a fugitive from justice," or who "is" a drug addict or an unlawful user of certain drugs, or who "has been convicted in any court" of certain crimes, or who "has been adjudicated as a mental defective," or who "has been committed to a mental institution" (emphasis supplied). This use of the respective tenses is significant, and demonstrates that Congress carefully distinguished between present status and a past event. We have noted this distinction in tenses in § 922, and its significance, before:"Congress knew the significance and meaning of the language it employed. It used the present perfect tense elsewhere in the same section . . . in contrast to its use of the present tense ('who is') in §§ 922(h)(1), (2), and (3). The statute's pattern is consistent, and no unintended misuse of language or of tense is apparent."Barrett v. United States, 423 U.S. at 423 U. S. 217. And in Scarborough v. United States, 431 U.S. at 431 U. S. 570, we observed: "It is obvious that the tenses used throughout Title IV were chosen with care."3. The imposition, by §§ 922(g)(4) and (h)(4), of continuing disability on a person who "has been" adjudicated a mental defective or committed to a mental institution is particularly instructive. A person adjudicated as a mental defective may later be adjudged competent, and a person committed to a mental institution later may be deemed cured and released. Yet Congress made no exception for subsequent curative events. The past adjudication or commitment disqualifies. Congress obviously felt that such a person, though unfortunate, was too much of a risk to be allowed firearms privileges. See United States v. Bass, 404 U.S. at 404 U. S. 344-345. In the face of this fact, we cannot believe that Congress intended Page 460 U. S. 117 to have a person convicted of a firearms felony under state law become eligible for firearms automatically because of a state expunction for whatever reason.4. Section 925(c) empowers the Secretary to grant relief from these disabilities in certain cases. The Secretary may not grant such relief, however, to one convicted of a crime involving the use of a firearm or of a federal firearms offense, and may not grant relief in any event unless specific conditions are met to his satisfaction. Again, it is highly unlikely that Congress intended to permit its own circumscription of the ability of the Secretary to grant relief to be overcome by the vagaries of state law. That would be too easy a route to follow in order to circumvent the federal statute. See S.Rep. No. 666, 89th Cong., 1st Sess., 2 (1965).5. Provisions of Title VII, enacted simultaneously with Title IV, are helpful to our analysis. We have treated Titles VII and IV as in pari materia in construing statutory language identical to that at issue here. Lewis v. United States, 445 U.S. at 445 U. S. 61-62. Title 18 U.S.C.App. § 1203(2) exempts from Title VII"any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm."Thus, in that statute, even a pardon is not sufficient to remove the firearms disabilities unless there is express authorization to have the firearm. It is inconceivable that Congress could have so provided and yet have intended, as the Court of Appeals concluded, 649 F.2d at 220-221, to give a state expunction a contrary and unconditional effect. After all, expunction devices were not unknown or unusual when Title IV came into being in 1968. See Comment, Expungement in California: Legislative Neglect and Judicial Abuse of the Statutory Mitigation of Felony Convictions, 12 U.San Fran.L.Rev. 155, 161 (1977); 1909 Cal.Stats., ch. 232, § 1. And the Federal Page 460 U. S. 118 Youth Corrections Act, in which Congress itself provided for expunction in certain circumstances, see 18 U.S.C. § 5021, was enacted as far back as 1950. See 64 Stat. 1089.6. Title 21 U.S.C. § 844(b) is a federal expunction statute providing that a first offender found guilty of simple possession of a controlled substance may be placed on probation without entry of judgment, and that, upon successful completion of the probation, the court shall discharge the defendant and dismiss the proceeding against him. But Congress also specifically provided in § 844(b)(1) that such discharge or dismissal"shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime . . . or for any other purpose."This provision would be superfluous if Congress had believed that expunction automatically removes the disqualification. Congress obviously knew the plain meaning of the terms it employed in statutes of this kind, and when it wished to create an exception for an expunged conviction, it did so expressly.V"As in all cases of statutory construction, our task is to interpret the words of [the statute] in light of the purposes Congress sought to serve." Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 441 U. S. 608 (1979). In our previous cases, we have recognized and given weight to the Act's broad prophylactic purpose:"When Congress enacted [18 U.S.C. § 921 et seq.] it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. . . . The principal purpose of federal gun control legislation, therefore, was to curb crime by keeping 'firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.' "Page 460 U. S. 119Huddleston v. United States, 415 U.S. at 415 U. S. 824, quoting S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968). See also Barrett v. United States, 423 U.S. at 423 U. S. 220-221.In order to accomplish this goal, Congress obviously determined that firearms must be kept away from persons, such as those convicted of serious crimes, who might be expected to misuse them. Such persons are also barred from obtaining licenses to deal in firearms or ammunition. This latter provision is particularly important because Title IV and federal gun laws generally funnel access to firearms almost exclusively through dealers. See Huddleston v. United States, 415 U.S. at 415 U. S. 825. "The principal agent of federal enforcement is the dealer." Id. at 415 U. S. 824.Although we have searched diligently, we have found nothing in the legislative history of Title IV or related federal firearms statutes that suggests, even remotely, that a state expunction was intended automatically to remove the disabilities imposed by §§ 922(g)(1) and (h)(1). See, e.g., S.Rep. No. 1501, 90th Cong., 2d Sess. (1968); S.Rep. No. 1097, 90th Cong., 2d Sess. (1968); H.R.Rep. No. 1577, 90th Cong., 2d Sess. (1968); H.R. Conf Rep. No.1956, 90th Cong., 2d Sess. (1968); H.R.Rep. No. 488, 90th Cong., 1st Sess. (1967). This lack of evidence is significant for several reasons. First, the purpose of the statute would be frustrated by a ruling that gave effect to state expunctions; a state expunction typically does not focus upon the question with which Title IV is concerned, namely, whether the convicted person is fit to engage in the firearms business or to possess a firearm. Second,"'[i]n the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.'"NLRB v. Natural Gas Utility Dist., 402 U. S. 600, 402 U. S. 603 (1971), quoting NLRB v. Randolph Electric Membership Corp., 343 F.2d 60, 62-63 (CA4 1965). This is because the application of federal legislation is nationwide, and Page 460 U. S. 120 at times the federal program would be impaired if state law were to control. Jerome v. United States, 318 U. S. 101, 318 U. S. 104 (1943). The legislative history reveals that Congress believed a uniform national program was necessary to assist in curbing the illegal use of firearms. See S.Rep. No. 1097, 90th Cong., 2d Sess., 28, 76-77 (1968). Third, Title IV "is a carefully constructed package of gun control legislation. . . . Congress knew the significance and meaning of the language it employed.'" Scarborough v. United States, 431 U.S. at 431 U. S. 570, quoting Barrett v. United States, 423 U.S. at 423 U. S. 217. And Congress carefully crafted a procedure for removing those disabilities in appropriate cases. § 925(c).Congress, of course, did use state convictions to trigger Title IV's disabilities in the first instance. This, however, was not because Congress wanted to tie those disabilities to the intricacies of state law, but because such convictions provide a convenient, although somewhat inexact, way of identifying "especially risky people." United States v. Bass, 404 U.S. at 404 U. S. 345. There is no inconsistency in the refusal of Congress to be bound by postconviction state actions, such as expunctions, that vary widely from State to State and that provide less than positive assurance that the person in question no longer poses an unacceptable risk of dangerousness. Any potential harshness of the federal rule is alleviated by the power given the Secretary to grant relief where relief is appropriate based on uniform federal standards.The facts of the present case are illustrative. Because Kennison had "stable employment" at home in South Carolina and no previous conviction, he was placed on probation and allowed to go home. App. to Pet. for Cert. 45a-46a. Although he had no previous conviction, Kennison did have prior arrests for "assault and battery of a high and aggravated nature" and for "child abuse." Record, Govt. Exh. 13. According to him, his supervision during probation consisted of "occasionally report[ing] that [he] had not been arrested." App. to Brief in Opposition 157a. In short, the circumstances Page 460 U. S. 121 surrounding the expunction of his conviction provide little, if any, assurance that Kennison is a person who can be trusted with a dangerous weapon.VIFinally, a rule that would give effect to expunctions under varying state statutes would seriously hamper effective enforcement of Title IV. Over half the States have enacted one or more statutes that may be classified as expunction provisions that attempt to conceal prior convictions or to remove some of their collateral or residual effects. These statutes differ, however, in almost every particular. Some are applicable only to young offenders, e.g., Mich.Comp.Laws §§ 780.621 and .622 (1982). Some are available only to persons convicted of certain offenses, e.g., N.J.Stat.Ann. § 2C:52-2(b) (West 1982); others, however, permit expunction of a conviction for any crime including murder, e.g., Mass.Gen.Laws Ann., ch. 276, § 100A (West Supp.19821983). Some are confined to first offenders, e.g., Okla.Stat., Tit. 22, § 991c (Supp.1982-1983). Some are discretionary, e.g., Minn.Stat. § 638.02(2) (Supp.1982), while others provide for automatic expunction under certain circumstances, e.g., Ariz.Rev.Stat.Ann. § 13-912 (1978). The statutes vary in the language employed to describe what they do. Some speak of expunging the conviction, others of "sealing" the file or of causing the dismissal of the charge. The statutes also differ in their actual effect. Some are absolute; others are limited. Only a minority address questions such as whether the expunged conviction may be considered in sentencing for a subsequent offense or in setting bail on a later charge, or whether the expunged conviction may be used for impeachment purposes, or whether the convict may deny the fact of his conviction. Some statutes, too, clearly were not meant to prevent use of the conviction in a subsequent prosecution. See, e.g., Ariz.Rev.Stat. § 13-907 (1978); United States v. Herrell, 588 F.2d 711 (CA9 Page 460 U. S. 122 1978), cert. denied, 440 U.S. 964 (1979). These and other differences provide nothing less than a national patchwork.In this case, for example, although the Court of Appeals referred to Iowa's deferred judgment statute as "unconditional and absolute," 649 F.2d at 221, it is obvious from the face of the statute that that description is not entirely accurate. At the time of expunction, a separate record is maintained, not destroyed, by the Supreme Court administrator. Iowa Code § 907.4 (1981). See Tr. of Oral Arg. 44. In addition, all "criminal history data" may be released to "criminal justice agencies." Iowa Code §§ 692.1(5) and 692.2 (1981). In short, the record of a conviction expunged under Iowa law is not expunged completely.Under the decision below, perplexing problems would confront those required to enforce federal gun control laws, as well as those bound by their provisions. Because, as we have noted, Title IV "is a carefully constructed package of gun control legislation," Scarborough v. United States, 431 U.S. at 431 U. S. 570, Congress, in framing it, took pains to avoid the very problems that the Court of Appeals' decision inevitably would create, such as individualized federal treatment of every expunction law. Congress used unambiguous language in attaching gun control disabilities to any person "who has been convicted" of a qualifying offense. We give full effect to that language.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtDickerson v. New Banner Inst., Inc., 460 U.S. 103 (1983)Dickerson v. New Banner Institute, Inc.No. 81-1180Argued November 29, 1982Decided February 23, 1983460 U.S. 103SyllabusTitle IV of the Gun Control Act of 1968, 18 U.S.C. §§ 922(g)(1) and (h)(1), makes it unlawful for any person "who has been convicted . . . of . . . a crime punishable by imprisonment for a term exceeding one year" to ship, transport, or receive any firearm or ammunition in interstate commerce. Title IV also makes it unlawful to engage in the business of importing, manufacturing, or dealing in firearms without a license from the Secretary of the Treasury. One ground for denial of a license is where the applicant is under the prohibitions imposed by §§ 922(g)(1) and (h)(1), and if the applicant is a corporation, a license will be denied if a person with power to direct the management of the corporation is under such prohibitions. One Kennison, the chairman of the board and a shareholder of respondent corporation, after plea negotiations, pleaded guilty in an Iowa state court to the state crime of carrying a concealed handgun. This crime was punishable by a fine or imprisonment for not more than five years, or both. The state court, however, pursuant to an Iowa statute, "deferred" entry of a formal judgment and placed Kennison on probation. At the completion of his probation term, he was discharged, also pursuant to a state statute, and his record with respect to the deferred judgment was expunged. Subsequently, respondent applied to the Treasury Department's Bureau of Alcohol, Tobacco and Firearms (Bureau) for licenses as a firearms and ammunition dealer and manufacturer, but did not disclose Kennison's plea of guilty to the Iowa concealed weapon charge. The licenses were issued but were later revoked when the Bureau learned of the Iowa charge. The District Court upheld the revocation, but the Court of Appeals reversed, holding that, although Kennison had been "convicted" of an offense that triggered firearms disabilities, that fact could not serve as a predicate for a Gun Control Act violation or license revocation, because the conviction had been expunged under the Iowa deferred judgment procedure.Held: The firearms disabilities imposed by §§ 922(g)(1) and (h)(1) apply to Kennison, and were not removed by the expunction of the record of his guilty plea to the concealed weapon charge. Pp. 460 U. S. 110-122. Page 460 U. S. 104(a) For purposes of the federal gun control laws, a plea of guilty to a disqualifying crime and its notation by a state court, followed by a sentence of probation, is equivalent to being "convicted" within the language of §§ 922(g)(1) and (h)(1). Pp. 460 U. S. 111-114.(b) Iowa's expunction provisions, as carried out in Kennison's case prior to respondent's license applications, did not nullify his conviction for purposes of the federal statute. Expunction under state law does not alter the legality of the previous conviction, does not open the way to a license despite the conviction, and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. Pp. 460 U. S. 114-115.(c) Provisions of the federal gun control laws other than the provisions in question, as well as related federal statutes, support the conclusion that Congress did not intend expunction of a state conviction automatically to remove the firearms disabilities imposed by §§ 922(g)(1) and (h)(1). Pp. 460 U. S. 115-118.(d) There is nothing in the legislative history of Title IV or related federal statutes to suggest an opposite intent. Title IV's purpose to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency, would be frustrated by a ruling that gave effect to state expunctions. In the absence of a plain indication to the contrary, it is assumed that Congress did not intend to make the application of Title IV dependent on state law. Title IV is carefully constructed gun control legislation. Congress knew the significance and meaning of the language it employed. Pp. 460 U. S. 118-121.(e) A rule that would give effect to expunction under varying state statutes would seriously hamper effective enforcement of Title IV. Pp. 460 U. S. 121-122.649 F.2d 216, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN, STEVENS, and O'CONNOR, JJ., joined,post, p. 460 U. S. 122.

1985_84-1259

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to review the holding of the Court of Appeals (a) that the Environmental Protection Agency's aerial observation of petitioner's plant complex did not exceed EPA's statutory investigatory authority, and (b) that EPA's aerial photography of petitioner's 2,000-acre plant complex without a warrant was not a search under the Fourth Amendment.IPetitioner Dow Chemical Co. operates a 2,000-acre facility manufacturing chemicals at Midland, Michigan. The facility consists of numerous covered buildings, with manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. At all times, Dow has maintained elaborate security around the perimeter of the complex barring ground-level public views of these areas. It also investigates any low-level flights by aircraft over the facility. Dow has not undertaken, however, to conceal all manufacturing equipment within the complex from aerial views. Dow maintains that the cost of covering its exposed equipment would be prohibitive.In early 1978, enforcement officials of EPA, with Dow's consent, made an on-site inspection of two powerplants in this complex. A subsequent EPA request for a second inspection, however, was denied, and EPA did not thereafter seek an administrative search warrant. Instead, EPA employed a commercial aerial photographer, using a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet. At all times, the aircraft was lawfully within navigable airspace. See 49 U.S.C.App. § 1304; 14 CFR § 91. 79 (1985). Page 476 U. S. 230 EPA did not inform Dow of this aerial photography, but when Dow became aware of it, Dow brought suit in the District Court, alleging that EPA's action violated the Fourth Amendment and was beyond EPA's statutory investigative authority. The District Court granted Dow's motion for summary judgment on the ground that EPA had no authority to take aerial photographs, and that doing so was a search violating the Fourth Amendment. EPA was permanently enjoined from taking aerial photographs of Dow's premises and from disseminating, releasing, or copying the photographs already taken. 536 F. Supp. 1355 (ED Mich.1982).The District Court accepted the parties' concession that EPA's "quest for evidence'" was a "search," id. at 1358, and limited its analysis to whether the search was unreasonable under Katz v. United States, 389 U. S. 347 (1967). Proceeding on the assumption that a search in Fourth Amendment terms had been conducted, the court found that Dow manifested an expectation of privacy in its exposed plant areas because it intentionally surrounded them with buildings and other enclosures. 536 F. Supp. at 1364-1366.The District Court held that this expectation of privacy was reasonable, as reflected in part by trade secret protections restricting Dow's commercial competitors from aerial photography of these exposed areas. Id. at 1366-1369. The court emphasized that use of "the finest precision aerial camera available" permitted EPA to capture on film "a great deal more than the human eye could ever see." Id. at 1367.The Court of Appeals reversed. 749 F.2d 307 (CA6 1984). It recognized that Dow indeed had a subjective expectation of privacy in certain areas from ground-level intrusions, but the court was not persuaded that Dow had a subjective expectation of being free from aerial surveillance, since Dow had taken no precautions against such observation, in contrast to its elaborate ground-level precautions. Id. at 313. The court rejected the argument that it was not feasible to shield any of the critical parts of the exposed plant areas from aerial surveys. Id. at 312-313. The Court of Appeals, Page 476 U. S. 231 however, did not explicitly reject the District Court's factual finding as to Dow's subjective expectations.Accepting the District Court finding of Dow's privacy expectation, the Court of Appeals held that it was not a reasonable expectation"[w]hen the entity observed is a multibuilding complex, and the area observed is the outside of these buildings and the spaces in between the buildings."Id. at 313. Viewing Dow's facility to be more like the "open field" in Oliver v. United States, 466 U. S. 170 (1984), than a home or an office, it held that the common law curtilage doctrine did not apply to a large industrial complex of closed buildings connected by pipes, conduits, and other exposed manufacturing equipment. 749 F.2d at 313-314. The Court of Appeals looked to "the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home" as the basis for the curtilage protection. Id. at 314. The court did not view the use of sophisticated photographic equipment by EPA as controlling.The Court of Appeals then held that EPA clearly acted within its statutory powers even absent express authorization for aerial surveillance, concluding that the delegation of general investigative authority to EPA, similar to that of other law enforcement agencies, was sufficient to support the use of aerial photography. Id. at 315.IIThe photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them. In common with much else, the technology of photography has changed in this century. These developments have enhanced industrial processes, and indeed all areas of life; they have also enhanced law enforcement techniques. Whether they may be employed by competitors to penetrate trade secrets is not a question presented in this case. Governments do not generally seek to appropriate trade secrets of the private Page 476 U. S. 232 sector, and the right to be free of appropriation of trade secrets is protected by law.Dow nevertheless relies heavily on its claim that trade secret laws protect it from any aerial photography of this industrial complex by its competitors, and that this protection is relevant to our analysis of such photography under the Fourth Amendment. That such photography might be barred by state law with regard to competitors, however, is irrelevant to the questions presented here. State tort law governing unfair competition does not define the limits of the Fourth Amendment. Cf. Oliver v. United States, supra, (trespass law does not necessarily define limits of Fourth Amendment). The Government is seeking these photographs in order to regulate, not to compete with, Dow. If the Government were to use the photographs to compete with Dow, Dow might have a Fifth Amendment "taking" claim. Indeed, Dow alleged such a claim in its complaint, but the District Court dismissed it without prejudice. But even trade secret laws would not bar all forms of photography of this industrial complex; rather, only photography with an intent to use any trade secrets revealed by the photographs may be proscribed. Hence, there is no prohibition of photographs taken by a casual passenger on an airliner, or those taken by a company producing maps for its mapmaking purposes.Dow claims first that EPA has no authority to use aerial photography to implement its statutory authority for "site inspection" under § 114(a) of the Clean Air Act, 42 U.S.C. § 7414(a); [Footnote 1] second, Dow claims EPA's use of aerial photography Page 476 U. S. 233 was a "search" of an area that, notwithstanding the large size of the plant, was within an "industrial curtilage," rather than an "open field," and that it had a reasonable expectation of privacy from such photography protected by the Fourth Amendment.IIICongress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters relating to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may be used in the course of executing the statutory mission. Aerial observation authority, for example, is not usually expressly extended to police for traffic control, but it could hardly be thought necessary for a legislative body to tell police that aerial observation could be employed for traffic control of a metropolitan area, or to expressly authorize police to send messages to ground highway patrols that a particular over-the-road truck was traveling in excess of 55 miles per hour. Common sense and ordinary human experience teach that traffic violators are apprehended by observation.Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. Environmental standards such as clean air and clean water cannot be enforced only in libraries and laboratories, helpful as those institutions may be.Under § 114(a)(2), the Clean Air Act provides that "upon presentation of . . . credentials," EPA has a "right of entry to, upon, or through any premises." 42 U.S.C. § 7414(a)(2)(A). Dow argues this limited grant of authority to enter does not Page 476 U. S. 234 authorize any aerial observation. In particular, Dow argues that unannounced aerial observation deprives Dow of its right to be informed that an inspection will be made or has occurred, and its right to claim confidentiality of the information contained in the places to be photographed, as provided in §§ 114(a) and (c), 42 U.S.C. §§ 7414(a) and (c). It is not claimed that EPA has disclosed any of the photographs outside the agency.Section 114(a), however, appears to expand, not restrict, EPA's general powers to investigate. Nor is there any suggestion in the statute that the powers conferred by this section are intended to be exclusive. There is no claim that EPA is prohibited from taking photographs from a ground-level location accessible to the general public. EPA, as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observation commonly available to the public at large: we hold that the use of aerial observation and photography is within EPA's statutory authority. [Footnote 2]IVWe turn now to Dow's contention that taking aerial photographs constituted a search without a warrant, thereby violating Dow's rights under the Fourth Amendment. In making this contention, however, Dow concedes that a simple flyover with naked-eye observation, or the taking of a photograph from a nearby hillside overlooking such a facility, would give rise to no Fourth Amendment problem.In California v. Ciraolo, ante p. 476 U. S. 207, decided today, we hold that naked-eye aerial observation from an altitude of Page 476 U. S. 235 1,000 feet of a backyard within the curtilage of a home does not constitute a search under the Fourth Amendment.In the instant case, two additional Fourth Amendment claims are presented: whether the common law "curtilage" doctrine encompasses a large industrial complex such as Dow's, and whether photography employing an aerial mapping camera is permissible in this context. Dow argues that an industrial plant, even one occupying 2,000 acres, does not fall within the "open fields" doctrine of Oliver v. United States, but rather is an "industrial curtilage" having constitutional protection equivalent to that of the curtilage of a private home. Dow further contends that any aerial photography of this "industrial curtilage" intrudes upon its reasonable expectations of privacy. Plainly, a business establishment or an industrial or commercial facility enjoys certain protections under the Fourth Amendment. See Marshall v. Barlow's, Inc., 436 U. S. 307 (1978); See v. City of Seattle, 387 U. S. 541 (1967).Two lines of cases are relevant to the inquiry: the curtilage doctrine and the "open fields" doctrine. The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See Ciraolo, supra.As the curtilage doctrine evolved to protect much the same kind of privacy as that covering the interior of a structure, the contrasting "open fields" doctrine evolved as well. From Hester v. United States, 265 U. S. 57 (1924), to Oliver v. United States, 466 U. S. 170 (1984), the Court has drawn a line as to what expectations are reasonable in the open areas beyond the curtilage of a dwelling:"open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from governmental interference or surveillance."Oliver, 466 U.S. at 466 U. S. 179. In Oliver, we held that"an individual may not legitimately demand privacy for activities out of doors in fields, except in the area Page 476 U. S. 236 immediately surrounding the home."Id. at 466 U. S. 178. To fall within the "open fields" doctrine, the area "need be neither open' nor a `field' as those terms are used in common speech." Id. at 466 U. S. 180, n. 11.Dow plainly has a reasonable, legitimate, and objective expectation of privacy within the interior of its covered buildings, and it is equally clear that expectation is one society is prepared to observe. E.g., See v. City of Seattle, supra. Moreover, it could hardly be expected that Dow would erect a huge cover over a 2,000-acre tract. In contending that its entire enclosed plant complex is an "industrial curtilage," Dow argues that its exposed manufacturing facilities are analogous to the curtilage surrounding a home, because it has taken every possible step to bar access from ground level.The Court of Appeals held that whatever the limits of an "industrial curtilage" barring ground-level intrusions into Dow's private areas, the open areas exposed here were more analogous to "open fields" than to a curtilage for purposes of aerial observation. 749 F.2d at 312-314. In Oliver, the Court described the curtilage of a dwelling as "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life.'" 466 U.S. at 466 U. S. 180 (quoting Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886)). See California v. Ciraolo, supra. The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant.Admittedly, Dow's enclosed plant complex, like the area in Oliver, does not fall precisely within the "open fields" doctrine. The area at issue here can perhaps be seen as falling somewhere between "open fields" and curtilage, but lacking some of the critical characteristics of both. [Footnote 3] Dow's inner Page 476 U. S. 237 manufacturing areas are elaborately secured to ensure they are not open or exposed to the public from the ground. Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because"[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property."See v. City of Seattle, supra, at 387 U. S. 543. The narrow issue raised by Dow's claim of search and seizure, however, concerns aerial observation of a 2,000-acre outdoor manufacturing facility without physical entry. [Footnote 4]We pointed out in Donovan v. Dewey, 452 U. S. 594, 452 U. S. 598-599 (1981), that the Government has "greater latitude to conduct warrantless inspections of commercial property" because"the expectation of privacy that the owner of commercial property enjoys in such property differs significantly Page 476 U. S. 238 from the sanctity accorded an individual's home."We emphasized that, unlike a homeowner's interest in his dwelling, "[t]he interest of the owner of commercial property is not one in being free from any inspections." Id. at 452 U. S. 599. And with regard to regulatory inspections, we have held that "[w]hat is observable by the public is observable, without a warrant, by the Government inspector as well." Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 315 (footnote omitted).Oliver recognized that, in the open field context, "the public and police lawfully may survey lands from the air." 466 U.S. at 466 U. S. 179 (footnote omitted). Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plants, offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking. The Government asserts it has not yet enlarged the photographs to any significant degree, but Dow points out that simple magnification permits identification of objects such as wires as small as 1/2-inch in diameter.It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility's buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. [Footnote 5] Page 476 U. S. 239 An electronic device to penetrate walls or windows so as to hear and record confidential discussions of chemical formulae or other trade secrets would raise very different and far more serious questions; other protections such as trade secret laws are available to protect commercial activities from private surveillance by competitors. [Footnote 6]We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; [Footnote 7] such an industrial complex is more comparable to an open field, and, as such, it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.Affirmed

U.S. Supreme CourtDow Chemical Co. v. United States, 476 U.S. 227 (1986)Dow Chemical Co. v. United StatesNo. 84-1259Argued December 10, 1985Decided May 19, 1986476 U.S. 227SyllabusPetitioner operates a 2,000-acre chemical plant consisting of numerous covered buildings, with outdoor manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. Petitioner maintains elaborate security around the perimeter of the complex, barring ground-level public views of the area. When petitioner denied a request by the Environmental Protection Agency (EPA) for an on-site inspection of the plant, EPA did not seek an administrative search warrant, but instead employed a commercial aerial photographer, using a standard precision aerial mapping camera, to take photographs of the facility from various altitudes, all of which were within lawful navigable airspace. Upon becoming aware of the aerial photography, petitioner brought suit in Federal District Court, alleging that EPA's action violated the Fourth Amendment and was beyond its statutory investigative authority. The District Court granted summary judgment for petitioner, but the Court of Appeals reversed, holding that EPA's aerial observation did not exceed its investigatory authority and that the aerial photography of petitioner's plant complex without a warrant was not a search prohibited by the Fourth Amendment.Held:1. The fact that aerial photography by petitioner's competitors might be barred by state trade secrets law is irrelevant to the questions presented in this case. Governments do not generally seek to appropriate trade secrets of the private sector, and the right to be free of appropriation of trade secrets is protected by law. Moreover, state tort law governing unfair competition does not define the limits of the Fourth Amendment. Pp. 476 U. S. 231-233.2. The use of aerial observation and photography is within EPA's statutory authority. When Congress invests an agency such as EPA with enforcement and investigatory authority, it is not necessary to identify explicitly every technique that may be used in the course of executing the statutory mission. Although § 114(a) of the Clean Air Act, which provides for EPA's right of entry to premises for inspection purposes, Page 476 U. S. 228 does not authorize aerial observation, that section appears to expand, not restrict, EPA's general investigatory powers, and there is no suggestion in the statute that the powers conferred by § 114(a) are intended to be exclusive. EPA needs no explicit statutory provision to employ methods of observation commonly available to the public at large. Pp. 476 U. S. 233-234.3. EPA's taking, without a warrant, of aerial photographs of petitioner's plant complex from an aircraft lawfully in public navigable airspace was not a search prohibited by the Fourth Amendment. The open areas of an industrial plant complex such as petitioner's are not analogous to the "curtilage" of a dwelling, which is entitled to protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See California v. Ciraolo, ante, p. 476 U. S. 207. The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant. For purposes of aerial surveillance, the open areas of an industrial complex are more comparable to an "open field" in which an individual may not legitimately demand privacy. Oliver v. United States, 466 U. S. 170. Here, EPA was not employing some unique sensory device not available to the public, but rather was employing a conventional, albeit precise, commercial camera commonly used in mapmaking. The photographs were not so revealing of intimate details as to raise constitutional concerns. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems. Pp. 476 U. S. 234-239.749 F.2d 307, affirmed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 476 U. S. 240. Page 476 U. S. 229

1973_72-1076

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the issue whether 18 U.S.C. § 922(a)(6), [Footnote 1] declaring that it is unlawful knowingly to make a false statement "in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer," covers the redemption of a firearm from a pawnshop.On October 6, 1971, petitioner, William C. Huddleston, Jr., pawned his wife's Winchester 30-30-caliber rifle for $25 at a pawnshop in Oxnard, California. On the following October 15 and on December 28, he pawned at Page 415 U. S. 816 the same shop two other firearms, a Russian 7.62-caliber rifle and a Remington .22-caliber rifle, belonging to his wife. For these he received loans of $10 and $15, respectively. The owner of the pawnshop was a federally licensed firearms dealer.Some weeks later, on February 1, 1972, and on March 10, Huddleston redeemed the weapons. In connection with each of the redemptions, the pawnbroker required petitioner to complete Treasury Form 4473, entitled "Firearms Transaction Record." This is a form used in the enforcement of the gun control provision of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 225, as amended by the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, of which the above-cited 18 U.S.C. § 922(a)(6) is a part. Question 8b of the form is:"Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter -- a yes answer is necessary if the judge could have given a sentence of more than one year.)"The question is derived from the statutory prohibition against a dealer's selling or otherwise disposing of a firearm to any person who "has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(d)(1). [Footnote 2] Petitioner answered "no" to Question 8b on each of the three Page 415 U. S. 817 Forms. 4473. He then affixed his signature to each form's certification that the answers were true and correct, that he understood that a person who answers any of the questions in the affirmative is prohibited by federal law from "purchasing and/or possessing a firearm," and that he also understood that the making of any false statement with respect to the transaction is a crime punishable as a felony.In fact, Huddleston, six years earlier, had been convicted in a California state court for writing checks without sufficient funds, an offense punishable under California law by a maximum term of 14 years. [Footnote 3] This fact, if revealed to the pawnshop proprietor, would have precluded the proprietor from selling or otherwise disposing of any of the rifles to the petitioner because of the proscription in 18 U.S.C. § 922(d)(1).Huddleston was charged in a three-count indictment with violating 18 U.S.C. §§ 922(a)(6) and 924(a). [Footnote 4] He moved to dismiss the indictment, in part on the ground that § 922(a)(6) was never intended to apply, and should not apply, to a pawnor's redemption of a weapon he had pawned. This motion was denied. Petitioner then pleaded not guilty and waived a jury trial. Page 415 U. S. 818The Government's evidence consisted primarily of the three Treasury Forms 4473 Huddleston had signed; the record of his earlier California felony conviction; and the pawnbroker's federal license. A Government agent also testified that petitioner, after being arrested and advised of his rights, made statements admitting that he had known, when filling out the forms, that he was a felon, and that he had lied each time when he answered Question 8b in the negative.Huddleston testified in his own defense. He stated that he did not knowingly make a false statement; that he did not read the form, and simply answered "no" upon prompting from the pawnbroker; and that he was unaware that his California conviction was punishable by a term exceeding one year. [Footnote 5]The District Judge found the petitioner guilty on all counts. He sentenced Huddleston to three concurrent three-year terms. The sentences were suspended, however, except for 20 days to be served on weekends. The United States Court of Appeals for the Ninth Circuit, by a divided vote, affirmed the conviction. 472 F.2d 592 (1973). The dissenting judge agreed that the statute was constitutional as applied, but concluded that what Huddleston did was to "reacquire" the rifles, and that "reacquire" is not necessarily included within the statute's term "acquire." Id. at 593. We granted certiorari, 411 U.S. 930 (1973), to resolve an existing conflict among the circuits on the issue whether the Page 415 U. S. 819 prohibition against making false statements in connection with the acquisition of a firearm covers a firearm's redemption from a pawnshop. [Footnote 6]IIPetitioner's assault on the statute under which he was convicted is two-pronged. First, it is argued that both the statute's language and its legislative history indicate that Congress did not intend a pawnshop redemption of a firearm to be an "acquisition" covered by the statute. Second, it is said that, even if Congress did intend a pawnshop redemption to be a covered "acquisition," the statute is so ambiguous that its construction is controlled by the maxim that ambiguity in a criminal statute is to be resolved in favor of the defendant.We turn first to the language and structure of the Act. Reduced to a minimum, § 922(a)(6) relates to any false statement made "in connection with the acquisition . . . of any firearm" from a licensed dealer and intended or likely to deceive the dealer "with respect to any fact material to the lawfulness of the sale or other disposition of such firearm."Petitioner attaches great significance to the word "acquisition." He urges that it suggests only a sale-like transaction. Since Congress in § 922(a)(6) did not use words of transfer or delivery, as it did in other sections of the Act, he argues that "acquisition" must have a narrower meaning than those terms. Moreover, since a pawn transaction is only a temporary bailment of personal property, with the pawnshop having merely a security interest in the pledged property, title or ownership is constant in the pawnor, and the "pawn Page 415 U. S. 820 plus redemption" transaction is no more than an interruption in the pawnor's possession. The pawnor simply repossesses his own property, and he does not "acquire" any new title or interest in the object pawned. At most, he "reacquires" the object, and reacquisition, as the dissenting judge in the Court of Appeals noted, is not necessarily included in the statutory term "acquisition."On its face, this argument might be said to have some force. A careful look at the statutory language and at complementary provisions of the Act, however, convinces us that the asserted ambiguity is contrived. Petitioner is mistaken in focusing solely on the term "acquisition" and in enshrouding it with an extra-statutory "legal title" or "ownership" analysis. The word "acquire" is defined to mean simply "to come into possession, control, or power of disposal of." Webster's New International Dictionary (3d ed., 1966, unabridged); United States v. Laisure, 460 F.2d 709, 712 n. 3 (CA5 1972). There is no intimation here that title or ownership would be necessary for possession, or control, or disposal power, and there is nothing else in the statute that justifies the imposition of that gloss. Moreover, a full reading of § 922(a)(6) clearly demonstrates that the false statements that are prohibited are those made with respect to the lawfulness of the sale "or other disposition" of a firearm by a licensed dealer. The word "acquisition," therefore, cannot be considered apart from the phrase "sale or other disposition." As the Government suggests, and indeed as the petitioner implicitly reasoned at oral argument, Tr. of Oral Arg. 11, if the pawnbroker "sells" or "disposes" under § 922(a)(6), the transferee necessarily "acquires." These words, as used in the statute, are correlatives. The focus of our inquiry, therefore, should be to determine whether a "sale or other disposition" of a firearm by a pawnbroker encompasses the redemption of the firearm by a pawnor. Page 415 U. S. 821Clearly, a redemption is not a "sale" for the simple reason that a sale has definite connotations of ownership and title. Some "other disposition" of a firearm, however, could easily encompass a pawnshop redemption. We believe that it does.It is the dealer who sells or disposes of the firearm. The statute defines the dealer to be:"(A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker."18 U.S.C. § 921(a)(11) (emphasis supplied). It defines a "pawnbroker" as"any person whose business or occupation includes the taking or receiving, by way of pledge or pawn, of any firearm or ammunition as security for the payment or repayment of money."18 U.S.C. § 921(a)(12) (emphasis supplied).These definitions surely suggest that a "sale or other disposition" of a firearm in a pawnshop is covered by the statute. This, of course, does not of itself resolve the question as to exactly what "other disposition" by a pawnbroker is included. It should be apparent, however, that, if Congress had intended to include only a pawnbroker's default sales of pledged or pawned goods, or his wholesale and retail sales of nonpawned goods, and to exclude the redemption of pawned articles, then the explicit inclusion of the pawnbroker in the definition of "dealer" would serve no purpose, since part (A) of the definition, covering wholesale and retail sales, would otherwise reach all such sales. United States v. Rosen, 352 F. Supp. 727, 729 (Idaho 1973). At oral argument, counsel suggested that the specific reference to a pawnbroker might have been intended to include "disposition" Page 415 U. S. 822 by barter, swap, trade, or gift. Tr. of Oral Arg. 5-7. This interpretation strains belief. Trades or gifts are not peculiar to pawnbrokers. Wholesalers and retailers may indulge in such dispositions. There is nothing in the legislative history to indicate that this interpretation prompted the specific mention of a pawnbroker in part (C) of the definition. To the contrary, the committee reports indicate that part (C) "specifically provides that a pawnbroker dealing in firearms shall be considered a dealer." H.R.Rep. No. 1577, 90th Cong., 2d Sess., 11 (1968) (emphasis supplied). See also S.Rep. No. 1501, 90th Cong., 2d Sess., 30 (1968).We also cannot ignore the explicit reference to a firearm transaction "by way of pledge or pawn" in the statutory definition of "pawnbroker" in § 921(a)(12). Had Congress' desire been to exempt a transaction of this kind, it would have artfully worded the definition so as to exclude it. We are equally impressed by Congress' failure to exempt redemptive transactions from the prohibitions of the Act when it so carefully carved out exceptions for a dealer "returning a firearm" and for an individual mailing a firearm to a dealer "for the sole purpose of repair or customizing." § 922(a)(2)(A). Petitioner contends that a redemptive transaction is no different from the return of a gun left for repair. His argument is that the pawned weapon is simply "returned" to the individual who left it and represents a mere restoration to its original status. We believe, however, that it was not unreasonable for Congress to choose to view the pawn transaction as something more than the mere interruption in possession typical of repair. The fact that Congress thought it necessary specifically to exempt the repair transaction indicates that it otherwise would have been covered and, if this were so, clearly a pawn transaction likewise would be covered. Page 415 U. S. 823Other provisions of the Act also make it clear that the statute generally covers all transfers of firearms by dealers to recipients. Section 922(a)(1) makes it unlawful for any person, except a licensed importer, manufacturer, or dealer, to engage in the business of "dealing" in firearms, or in the course of such business "to ship, transport, or receive any firearm." Section 922(b)(1) makes it unlawful for a dealer "to sell or deliver" firearms of specified types to persons under 18 or 21 years of age. Section 922(b)(2) makes it unlawful for a dealer to "sell or deliver" a weapon to a person in any State where "at the place of sale, delivery or other disposition," the transfer would violate local law. Section 922(d) makes it unlawful for a dealer "to sell or otherwise dispose of" a firearm to a person under a felony indictment, a felon, a fugitive, a narcotic addict, or a mental defective. Section 923(g) requires that each licensed dealer maintain "records of importation, production, shipment, receipt, sale, or other disposition, of firearms."In sum, the word "acquisition," as used in § 922(a)(6), is not ambiguous, but clearly includes any person, by definition, who "come[s] into possession, control, or power of disposal" of a firearm. As noted above, "acquisition" and "sale or other disposition" are correlatives. It is reasonable to conclude that a pawnbroker might "dispose" of a firearm through a redemptive transaction. And because Congress explicitly included pawnbrokers in the Act, explicitly mentioned pledge and pawn transactions involving firearms, and clearly failed to include them among the statutory exceptions, we are not at liberty to tamper with the obvious reach of the statute in proscribing the conduct in which the petitioner engaged. Page 415 U. S. 824IIIThe legislative history, too, supports this reading of the statute. This is apparent from the aims and purposes of the Act and from the method Congress adopted to achieve those objectives. When Congress enacted the provisions under which petitioner was convicted, it was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest. Pub.L. 90-351, § 1201, 82 Stat. 236, as amended by Pub.L. 90-618, § 301(a)(1), 82 Stat. 1236, 18 U.S.C.App. § 1201. Congress determined that the ease with which firearms could be obtained contributed significantly to the prevalence of lawlessness and violent crime in the United States. S.Rep. No. 1097, 90th Cong., 2d Sess., 108 (1968). The principal purpose of the federal gun control legislation, therefore, was to curb crime by keeping "firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency." S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968).Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 are thus aimed at restricting public access to firearms. Commerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§ 922(a)(1) and 923(a); he is required to keep records of "sale . . . or other disposition," § 923(g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924.Section 922(a)(6), the provision under which petitioner Page 415 U. S. 825 was convicted, was enacted as a means of providing adequate and truthful information about firearms transactions. Information drawn from records kept by dealers was a prime guarantee of the Act's effectiveness in keeping"these lethal weapons out of the hands of criminals, drug addicts, mentally disordered persons, juveniles, and other persons whose possession of them is too high a price in danger to us all to allow."114 Cong.Rec. 13219 (1968) (remarks of Sen. Tydings). Thus, any false statement with respect to the eligibility of a person to obtain a firearm from a licensed dealer was made subject to a criminal penalty.From this outline of the Act, it is apparent that the focus of the federal scheme is the federally licensed firearms dealer, at least insofar as the Act directly controls access to weapons by users. Firearms are channeled through dealers to eliminate the mail order and the generally widespread commerce in them, and to insure that, in the course of sales or other dispositions by these dealers, weapons could not be obtained by individuals whose possession of them would be contrary to the public interest. Thus, the conclusion we reached above with respect to the language and structure of the Act, that firearms redemptions in pawnshops are covered, is entirely consonant with the achievement of this congressional objective and method of enforcing the Act.Moreover, as was said in United States v. Bramblett, 348 U. S. 503, 348 U. S. 507 (1955),"There is no indication in either the committee reports or in the congressional debates that the scope of the statute was to be in any way restricted."(Footnotes omitted.) Indeed, the committee reports indicate that the proscription under 922(d) on the sale or other disposition of a firearm to a felon "goes to all types of sales or dispositions -- Page 415 U. S. 826 over-the-counter as well as mail order." [Footnote 7] S.Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968). See S.Rep. No. 1501, 90th Cong., 2d Sess., 34 (1968). As far as the parties have informed us, and as far as our independent research has revealed, there is no discussion of the actual meaning of "acquisition" or of "sale or other disposition" in the legislative history. Previous legislation relating to the particular term "other disposition" sheds some light, however, and prudence calls on us to look to it in ascertaining the legislative purpose. United States v. Katz, 271 U. S. 354, 271 U. S. 357 (1926). The term apparently had its origin in § 1(k) of the National Firearms Act, Pub.L. 474, 48 Stat. 1236 (1934). That Act set certain conditions on the "transfer" of machine guns and other dangerous weapons. As defined by the Act, "transfer" meant "to sell, assign, pledge, lease, loan, give away, or otherwise dispose of." The term "otherwise dispose of" in that context was aimed at providing Page 415 U. S. 827 maximum coverage. The interpretation we adopt here accomplishes the same objective. [Footnote 8]There also can be no doubt of Congress' intention to deprive the juvenile, the mentally incompetent, the criminal, and the fugitive of the use of firearms. Senator Tydings stated:"Title IV, the concealed weapons amendment, is a very limited, stripped-down, bare-minimum gun traffic control bill, primarily designed to reduce access to handguns for criminals, juveniles, and fugitives. . . . I can fairly say that this concealed weapons amendment does not significantly inconvenience hunters and sportsmen in any way. The people it does frustrate are the juveniles, felons, and fugitives who today can, with total anonymity and impunity, obtain guns by mail or by crossing into neighboring States with lax or no gun laws at all, regardless of the law of their own State."114 Cong.Rec. 13647 (1968). Page 415 U. S. 828 Congressman Celler, the House Manager, stated:"Mr. Chairman, none of us who supports Federal firearms controls believe that any bill or any system of control can guarantee that society will be safe from firearms misuse. But we are convinced that a strengthened system can significantly contribute to reducing the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses, from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons."Id. at 21784. Congressman McCulloch, a senior member of the House Committee on the Judiciary, in referring specifically to 922(a)(6), stated,"[The bill] makes it unlawful . . . [f]or any person, in connection with obtaining a firearm or ammunition from a licensee, to make a false representation material to such acquisition."Id. at 21789. [Footnote 9] Given these statements of congressional purpose, it would be unwarranted to except pawnshop redemptions Page 415 U. S. 829 when, by virtue of the statutory language itself, such redemptions would be covered. Otherwise every evil Congress hoped to cure would continue unabated. [Footnote 10] Page 415 U. S. 830IVPetitioner urges that the intention to include pawn redemptions is so ambiguous and uncertain that the statute should be narrowly construed in his favor. Reliance is placed upon the maxim that an "ambiguity Page 415 U. S. 831 concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U. S. 808, 401 U. S. 812 (1971); United States v. Bass, 404 U. S. 336, 404 U. S. 347 (1971). This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct is criminal and punishable by deprivation of liberty or property. United States v. Wiltberger, 5 Wheat. 76, 18 U. S. 95 (1820); United States v. Bass, 404 U.S. at 404 U. S. 348. The rule is also the product of an awareness that legislators and not the courts should define criminal activity. Zeal in forwarding these laudable policies, however, must not be permitted to shadow the understanding that "[s]ound rules of statutory interpretation exist to discover, and not to direct, the Congressional will." United States ex rel. Marcus v. Hess, 317 U. S. 537, 317 U. S. 542 (1943). Although penal laws are to be construed strictly, they "ought not to be construed so strictly as to defeat the obvious intention of the legislature." American Fur Co. v. United States, 2 Pet. 358, 27 U. S. 367 (1829); United States v. Wiltberger, supra; 39 U. S. Morris, 14 Pet. 464, 39 U. S. 475 (1840); United States v. Lacher, 134 U. S. 624 (1890); United States v. Bramblett, 348 U.S. at 348 U. S. 510; United States v. Bass, 404 U.S. at 404 U. S. 351.We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner's conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that "an untruthful answer may subject you to criminal prosecution." The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a Page 415 U. S. 832 term exceeding one year, and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that "the making of any false oral or written statement . . . with respect to this transaction is a crime punishable as a felony." This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action.Our reading of the statute cannot be viewed as judicial usurpation of the legislative function. The statute's language reveals an unmistakable attempt to include pawnshop transactions, by pledge or pawn, among the transactions covered by the Act. And Congress unquestionably made it unlawful for dealers, including pawnbrokers, "to sell or otherwise dispose of any firearm" to a convicted felon, a juvenile, a drug addict, or a mental defective. § 922(d). Under these circumstances, we will not blindly incant the rule of lenity to "destroy the spirit and force of the law which the legislature intended to [and did] enact." American Tobacco Co. v. Werckmeister, 207 U. S. 284, 207 U. S. 293 (1907); United States v. Katz, 271 U.S. at 271 U. S. 357. [Footnote 11] Page 415 U. S. 833VThe petitioner suggests, lastly, that the application of § 922(a)(6) to a pawn redemption would raise constitutional questions of some moment, and that these would not arise if the statute were narrowly construed. We fail to see the presence of issues of that import. There was no taking of Huddleston's property without just compensation. The rifles, in fact, were not his, but his wife's. Moreover, Congress has determined that a convicted felon may not lawfully obtain weapons of that kind. Nor were petitioner's false answers in any way coerced. United States v. Knox, 396 U. S. 77, 396 U. S. 79 (1969); Bryson v. United States, 396 U. S. 64, 396 U. S. 72 (1969). Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that §§ 922(a)(6) and (d)(1), in contrast to 18 U.S.C.App. § 1202(a)(1), see United States v. Bass, supra, were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned, "on the theory that such transactions affect interstate commerce." 472 F.2d at 593. See also United States v. Menna, 451 F.2d 982, 984 (CA9 1971), cert. denied, 405 U. S. 963 (1972), and United States v. O'Neill, 467 F.2d 1372, 1373-1374 (CA2 1972).We affirm the judgment of the Court of Appeals.It is so ordered

U.S. Supreme CourtHuddleston v. United States, 415 U.S. 814 (1974)Huddleston v. United StatesNo. 72-1076Argued November 7, 1973Decided March 26, 1974415 U.S. 814SyllabusPetitioner, a previously convicted felon, was convicted of violating 18 U.S.C. § 922(a)(6), a part of the Gun Control Act of 1968, by falsely stating, in connection with the redemption from a pawnbroker of three guns petitioner had pawned, that he had not been convicted of a crime punishable by imprisonment for more than a year. The pawnbroker was a federally licensed firearms dealer. The Court of Appeals affirmed. Section 922(a)(6) makes it an offense knowingly to make a false statement "in connection with the acquisition . . . of any firearm . . . from a . . . licensed dealer" and"intended or likely to deceive such . . . dealer . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm. . . ."Held: Section 922(a)(6) applies to the redemption of a firearm from a pawnshop. Pp. 415 U. S. 819-833.(a) Petitioner's contention that the statute covers only a sale-like transaction is without merit, since "acquisition," as used in § 922(a)(6), clearly includes any person, by definition, who "comes into possession, control, or power of disposal" of a firearm. Moreover, the statutory terms "acquisition" and "sale or other disposition" are correlatives. It is reasonable to conclude that a pawnbroker might "dispose" of a firearm through a redemptive transaction. Finally, Congress explicitly included pawnbrokers in the Gun Control Act, specifically mentioned pledge and pawn transactions involving firearms, and did not include them in the statutory exemptions. Pp. 415 U. S. 819-823.(b) That pawnshop firearms redemptions are covered by the challenged provision comports with the legislative history of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968, which are aimed at controlling access to weapons by those whose possession thereof is contrary to the public interest, through a regulatory scheme focusing on he federally licensed firearms dealer. Pp. 415 U. S. 824-829.(c) Section 922(a)(6) contains no ambiguity warranting a narrow construction in petitioner's favor, and application of the Page 415 U. S. 815 statute to the pawn redemptions here raises no issue of constitutional dimension. Pp. 415 U. S. 830-833.472 F.2d 592, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 415 U. S. 833.

1958_583

MR. CHIEF JUSTICE WARREN, delivered the opinion of the Court.At the murder trial of petitioner, the principal state witness, then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State's Attorney that he had received no promise of consideration in return for his testimony. The Assistant State's Attorney had, in fact, promised him consideration, but did nothing to correct the witness' false testimony. The jury was apprised, however, that a public defender had promised "to do what he could" for the witness. The question presented is whether, on these facts, the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.The record in this Court contains testimony from which the following facts could have been found. The murder in question occurred early in the morning of August 21, 1938, in a Chicago, Illinois, cocktail lounge. Petitioner Henry Napue, the witness George Hamer, one Poe, and one Townsend entered the dimly lighted lounge and announced their intention to rob those present. An off-duty policeman, present in the lounge, drew his service revolver and began firing at the four men. In the melee that followed, Townsend was killed, the officer was fatally wounded, and the witness Hamer was seriously wounded. Napue and Poe carried Hamer to the car, where a fifth man, one Webb, was waiting. In due course, Hamer was apprehended, tried for the murder of the policeman, convicted on his plea of guilty, and sentenced to 199 years. Subsequently, Poe was apprehended, tried, convicted, sentenced to death, and executed. Hamer was not used as a witness.Thereafter, petitioner Napue was apprehended. He was put on trial, with Hamer being the principal witness Page 360 U. S. 266 for the State. Hamer's testimony was extremely important, because the passage of time and the dim light in the cocktail lounge made eyewitness identification very difficult and uncertain, and because some pertinent witnesses had left the state. On the basis of the evidence presented, which consisted largely of Hamer's testimony, the jury returned a guilty verdict, and petitioner was sentenced to 199 years.Finally, the driver of the car, Webb, was apprehended. Hamer also testified against him. He was convicted of murder, and sentenced to 199 years.Following the conviction of Webb, the lawyer who, as former Assistant State's Attorney, had prosecuted the Hamer, Poe, and Napue cases filed a petition in the nature of a writ of error coram nobis on behalf of Hamer. In the petition, he alleged that, as prosecuting attorney, he had promised Hamer that, if he would testify against Napue, "a recommendation for a reduction of his [Hamer's] sentence would be made, and, if possible, effectuated." [Footnote 1] The Page 360 U. S. 267 attorney prayed that the court would effect "consummation of the compact entered into between the duly authorized representatives of the State of Illinois and George Hamer."This coram nobis proceeding came to the attention of Napue, who thereafter filed a post-conviction petition in which he alleged that Hamer had falsely testified that he had been promised no consideration for his testimony, [Footnote 2] and that the Assistant State's Attorney handling the case had known this to be false. A hearing was ultimately held at which the former Assistant State's Attorney testified that he had only promised to help Hamer if Hamer's story "about being a reluctant participant" in the robbery was borne out, and not merely if Hamer would testify at petitioner's trial. He testified that in his coram nobis petition on Hamer's behalf he "probably used some language that [he] should not have used" in his "zeal to do something for Hamer," to whom he "felt a moral obligation." The lower court denied petitioner relief on the basis of the attorney's testimony.On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill. 2d 566, 150 N.E.2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner's trial, a finding which the State does not contest here. It further found that the Assistant State's Attorney knew that Hamer had lied in denying that Page 360 U. S. 268 he had been promised consideration. It held, however, that petitioner was entitled to no relief, since the jury had already been apprised that someone whom Hamer had tentatively identified as being a public defender "was going to do what he could" in aid of Hamer, and "was trying to get something did" for him. [Footnote 3] We granted certiorari Page 360 U. S. 269 to consider the question posed in the first paragraph of this opinion. 358 U.S. 919.First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Curran v. Delaware, 259 F.2d 707. See New York ex rel. Whitman v. Wilson, 318 U. S. 688, and White v. Ragen, 324 U. S. 760. Compare Jones v. Kentucky, 97 F.2d 335, 338, with In re Sawyer's Petition, 229 F.2d 805, 809. Cf. Mesarosh v. United States, 352 U. S. 1. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Alcorta v. Texas, 355 U. S. 28; United States ex rel. Thompson v. Dye, 221 F.2d 763; United States ex rel. Almeida v. Baldi, 195 F.2d 815; United States ex rel. Montgomery v. Ragen, 86 F. Supp. 382. See generally annotation, 2 L. Ed. 2d 1575.The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 887, 136 N.E.2d 853, 854-855:"It is of no consequence that the falsehood bore upon the witness' credibility, rather than directly upon defendant's guilt. A lie is a lie, no matter Page 360 U. S. 270 what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. . . . That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair."Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. As Mr. Justice Schaefer, joined by Chief Justice Davis, rightly put it in his dissenting opinion below, 13 Ill. 2d 566, 571, 150 N.E.2d 613, 616:"What is overlooked here is that Hamer clearly testified that no one had offered to help him except an unidentified lawyer from the public defender's office."Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration. That the Assistant State's Attorney himself thought it important to establish before the jury that no official source had promised Hamer consideration is made clear by his redirect examination, which was the last testimony of Hamer's heard by the jury:"Q. Mr. Hamer, has Judge Prystalski [the trial judge] promised you any reduction of sentence? "Page 360 U. S. 271"A. No, sir.""Q. Have I promised you that I would recommend any reduction of sentence to anybody?""A. You did not. [That answer was false, and known to be so by the prosecutor.]""Q. Has any Judge of the criminal court promised that they [sic] would reduce your sentence?""A. No, sir.""Q. Has any representative of the Parole Board been to see you and promised you a reduction of sentence?""A. No, sir.""Q. Has any representative of the Governor of the State of Illinois promised you a reduction of sentence?""A. No, sir."We are therefore unable to agree with the Illinois Supreme Court that "there was no constitutional infirmity by virtue of the false statement."Third, the State argues that we are not free to reach a factual conclusion different from that reached by the Illinois Supreme Court, and that we are bound by its determination that the false testimony could not in any reasonable likelihood have affected the judgment of the jury. The State relies on Hysler v. Florida, 315 U. S. 411. But, in that case, the Court held only that a state standard of specificity and substantiality in making allegations of federal constitutional deprivations would be respected, and this Court made its own "independent examination" of the allegations there to determine if they had in fact met the Florida standard. The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate. Martin v. Hunter's Lessee, 1 Wheat. 304; Cooper v. Aaron, 358 U. S. 1. Page 360 U. S. 272 This principle was well stated in Niemotko v. Maryland, 340 U. S. 268, 340 U. S. 271:"In cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded."It is now so well settled that the Court was able to speak in Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, 347 U. S. 121, of the"long course of judicial construction which establishes as a principle that the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest. [Footnote 4]"As previously indicated, our own evaluation of the record here compels us to hold that the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial. Accordingly, the judgment below must beReversed

U.S. Supreme CourtNapue v. Illinois, 360 U.S. 264 (1959)Napue v. IllinoisNo. 583Argued April 30, 1959Decided June 15, 1959360 U.S. 264SyllabusAt petitioner's trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State's Attorney that he had received no promise of consideration in return for his testimony. The Assistant State's Attorney had in fact promised him consideration, but he did nothing to correct the witness' false testimony. The jury was apprised, however, that a public defender had promised "to do what he could" for the witness.Held: The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272.(a) The established principle that a State may not knowingly use false testimony to obtain a tainted conviction does not cease to apply merely because the false testimony goes only to the credibility of the witness. Pp. 360 U. S. 269-270.(b) The fact that the jury was apprised of other grounds for believing that the witness may have had an interest in testifying against petitioner was not sufficient to turn what was otherwise a tainted trial into a fair one. Pp. 360 U. S. 270-271.(c) Since petitioner claims denial of his rights under the Federal Constitution, this Court was not bound by the factual conclusion reached by the Illinois Supreme Court, but reexamined for itself the evidentiary basis on which that conclusion was founded. Pp. 360 U. S. 271-272.13 Ill. 2d 566, 150 N.E.2d 613, reversed. Page 360 U. S. 265

1977_77-653

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.This is an appeal from a three-judge District Court for the District of Maryland. Nine minors, appellees here, brought an action under 42 U.S.C. § 1983, seeking a declaratory judgment and injunctive relief to prevent the State from filing exceptions with the Juvenile Court to proposed findings and recommendations made by masters of that court. The minors' claim was based on an alleged violation of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The District Court's jurisdiction was invoked under 28 U.S.C. §§ 1343, 2281, and 2284 (as then written); this Court's jurisdiction, under 28 U.S.C. § 1253.IIn order to understand the present Maryland scheme for the use of masters in juvenile court proceedings, it is necessary to trace briefly the history both of antecedent schemes and of this and related litigation.Prior to July 1975, the use of masters in Maryland juvenile proceedings was governed by Rule 908(e), Maryland Rules of Procedure. It provided that a master "shall hear such cases as may be assigned to him by the court." The Rule further directed that, at the conclusion of the hearing, the master transmit the case file and his "findings and recommendations" to the Juvenile Court. If no party filed exceptions to these findings and recommendations, they were to be "promptly . . . confirmed, modified or remanded by the judge." If, however, a party filed exceptions -- and in delinquency hearings, only the State had the authority to do so -- then, after notice, the Juvenile Court judge would "hear the entire matter or such specific matters as set forth in the exceptions de novo." [Footnote 1] Page 438 U. S. 207In the city of Baltimore, after the State filed a petition alleging that a minor had committed a delinquent act, [Footnote 2] the clerk of the Juvenile Court [Footnote 3] generally would assign the case to one of seven masters. [Footnote 4] In the ensuing unrecorded hearing, the State would call its witnesses and present its evidence in accordance with the rules of evidence applicable in criminal cases. The minor could offer evidence in defense. At the conclusion of the presentation of evidence, the master usually would announce his findings and contemplated recommendations. In a minority of those cases where the recommendations favored the minor's position, the State would file exceptions, whereupon the Juvenile Court judge would try the case de novo. [Footnote 5]In 1972, a Baltimore City Master concluded, after a hearing, that the State had failed to show beyond a reasonable doubt that a minor, William Anderson, had assaulted and robbed a woman. His recommendation to the Juvenile Court judge reflected that conclusion. The State filed exceptions. Anderson responded with a motion to dismiss the notice of exceptions, contending that Rule 908(e), with its provision for a de novo hearing, violated the Double Jeopardy Clause. The Juvenile Court judge ruled that juvenile proceedings as such were not outside the scope of the Double Jeopardy Clause. Page 438 U. S. 208 He then held that the proceeding before him on the State's exceptions would violate Anderson's right not to be twice put in jeopardy, and, on that basis, granted the motion to dismiss. The judge granted the same relief to similarly situated minors, including several who later initiated the present litigation.The State appealed, and the Court of Special Appeals reversed. In re Anderson, 20 Md.App. 31, 315 A.2d 540 (1974). That court assumed, for purposes of its decision, that jeopardy attached at the commencement of the initial hearing before the master. It held, however:"[T]here is no adjudication by reason of the master's findings and recommendations. The proceedings before the master and his findings and recommendations are simply the first phase of the hearing, which continues with the consideration by the juvenile judge. Whether the juvenile judge, in the absence of exceptions, accepts the master's findings or recommendations, modifies them, or remands them, or whether, when exceptions are filed, he hears the matter himself de novo, there is merely a continuance of the hearing and the initial jeopardy. In other words, the hearing, and the jeopardy thereto attaching, terminate only upon a valid adjudication by the juvenile judge, not upon the findings and recommendations of the master."Id. at 47, 315 A.2d at 549 (footnotes omitted; emphasis added). On this basis, the court concluded that the de novo hearing was not a second exposure to jeopardy.On appeal by the minors, the Court of Appeals affirmed, although on a rationale different from that of the intermediate appellate court. In re Anderson, 272 Md. 85, 321 A.2d 516 (1974). It held that "a hearing before a master is not such a hearing as places a juvenile in jeopardy." Central to this holding was the court's conclusion that masters in Maryland serve only as ministerial assistants to judges; although authorized Page 438 U. S. 209 to hear evidence, report findings, and make recommendations to the judge, masters are entrusted with none of the judicial power of the State, including the sine qua non of judicial office -- the power to enter a binding judgment. [Footnote 6]In November, 1974, five months after the Court of Appeals' decision, nine juveniles sought federal habeas corpus relief, contending that, by taking exceptions to masters' recommendations favorable to them, the State was violating their rights under the Double Jeopardy Clause. These same nine minors also initiated a class action under 42 U.S.C. § 1983 in which they sought a declaratory judgment and injunctive relief against the future operation of Rule 908(e). The sole constitutional basis for their complaint was, again, the Double Jeopardy Clause. A three-judge court was convened to hear this matter, and it is the judgment of that court we now review.Before either the three-judge District Court or the single judge reviewing the habeas corpus petitions could act, the Maryland Legislature enacted legislation which, for the first time, provided a statutory basis for the use of masters in juvenile court proceedings. In doing so, it modified slightly the scheme previously operative under Rule 908(e). The new legislation required that hearings before a master be recorded, and that, at their conclusion, the master submit to the Juvenile Court judge written findings of fact, conclusions of law, and recommendations. Either party was authorized to file exceptions, and could elect a hearing on the record or a de novo hearing before the judge. The legislature specified that the master's "proposals and recommendations . . . for juvenile causes do not constitute orders or final action of the court." Accordingly, the judge could, even in the absence of exceptions, reject a master's recommendations and conduct a de Page 438 U. S. 210 novo hearing or, if the parties agreed, a hearing on the record. Md.Cts. & Jud.Proc.Code Ann. § 813 (Supp. 1977).In June, 1975, within two months of the enactment of § 813 and before its July 1, 1975, effective date, the single-judge United States District Court held that the Rule 908(e) provision for a de novo hearing on the State's exceptions violated the Double Jeopardy Clause. Aldridge v. Dean, 395 F. Supp. 1161 (Md.1975). In that court's view, a juvenile was placed in jeopardy as soon as the State offered evidence in the hearing before a master. The court also concluded that to subject a juvenile to a de novo hearing before the Juvenile Court judge was to place him in jeopardy a second time. Accordingly, it granted habeas corpus relief to the six petitioners already subjected by the State to a de novo hearing. The petitions of the remaining three, who had not yet been brought before the Juvenile Court judge, were dismissed without prejudice as being premature.In response to both the enactment of § 3-813 and the decision in Aldridge v. Dean, supra, the Maryland Court of Appeals, in the exercise of its rulemaking power, promulgated a new rule, and the one currently in force, Rule 911, to govern the use of masters in juvenile proceedings. [Footnote 7] Rule 911 differs from the statute in significant aspects. First, in order to emphasize the nonfinal nature of a master's conclusions, it stresses that all of his "findings, conclusions, recommendations or . . . orders" are only proposed. Second, the State no longer has power to secure a de novo hearing before the Juvenile Court judge after unfavorable proposals by the master. The State still may file exceptions, but the judge can act on them only on the basis of the record made before the master and "such additional [relevant] evidence . . . to which the Page 438 U. S. 211 parties raise no objection." [Footnote 8] The judge retains his power to accept, reject, or modify the master's proposals, to remand to the master for further hearings, and to supplement the record for his own review with additional evidence to which the parties do not object. [Footnote 9] Page 438 U. S. 212Thus, Rule 911 is a direct product of the desire of the State to continue using masters to meet the heavy burden of juvenile court caseloads while at the same time assuring that their use not violate the constitutional guarantee against double jeopardy. To this end, the Rule permits the presentation and recording of evidence in the absence of the only officer authorized by the state constitution, see In re Anderson, 272 Md. at 10105, 321 A.2d at 52527, and by statute, § 3-813, to serve as the factfinder and judge.After the effective date of Rule 911, July 1, 1975, the plaintiffs in the § 1983 action amended their complaint to bring Rule 911 within its scope. They continued to challenge the state procedure, however, only on the basis of the Double Jeopardy Clause. Other juveniles intervened as the ongoing work of the juvenile court brought them within the definition of the proposed class. Their complaints in intervention likewise rested only on the Double Jeopardy Clause.The three-judge District Court certified the proposed class under Fed.Rule Civ.Proc. 23(b)(2) to consist of all juveniles involved in proceedings where the State had filed exceptions to a master's proposed findings of nondelinquency. That court then held that a juvenile subjected to a hearing before a master is placed in jeopardy, even though the master has no power to enter a final order. It also held that the Page 438 U. S. 213 Juvenile Court judge's review of the record constitutes a"second proceeding at which [the Juvenile] must once again marshal whatever resources he can against the State's, and at which the State is given a second opportunity to obtain a conviction."436 F. Supp. 1361, 1369 (Md.1977). Accordingly, the three-judge District Court enjoined the defendant state officials [Footnote 10] from taking exceptions to either a master's proposed finding of nondelinquency or his proposed disposition. We noted probable jurisdiction solely to determine whether the Double Jeopardy Clause prohibits state officials, acting in accordance with Rule 911, from taking exceptions to a master's proposed findings. [Footnote 11] 434 U.S. 963 (1977). Page 438 U. S. 214IIThe general principles governing this case are well established."A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U. S. 784. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though 'the acquittal was based upon an egregiously erroneous foundation.' . . . If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.""Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces Page 438 U. S. 215 the defendant's 'valued right to have his trial completed by a particular tribunal.' . . . Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial."Arizona v. Washington, 434 U. S. 497, 434 U. S. 503-505 (1978) (footnotes omitted).In the application of these general principles, the narrow question here [Footnote 12] is whether the State in filing exceptions to a master's proposals, pursuant to Rule 911, [Footnote 13] thereby "require[s] an accused to stand trial" a second time. We hold that it does not. Maryland has created a system with Rule 111 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge.Importantly, a Rule 911 proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose "of the prohibition against successive trials" is to bar "the Page 438 U. S. 216 prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, 437 U. S. 1, 437 U. S. 11 (1978). A Rule 911 proceeding does not provide the prosecution that forbidden "second crack." The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor.The Double Jeopardy Clause also precludes the prosecutor from "enhanc[ing] the risk that an innocent defendant may be convicted," Arizona v. Washington, supra at 434 U. S. 504, by taking the question of guilt to a series of persons or groups empowered to make binding determinations. Appellees contend that, in its operation, Rule 911 gives the State the chance to persuade two such factfinders: first the master, then the Juvenile Court judge. In support of this contention, they point to evidence that juveniles and their parents sometimes consider the master "the judge," and his recommendations "the verdict." Within the limits of jury trial rights, see McKeiver v. Pennsylvania, 403 U. S. 528 (1971), and other constitutional constraints, it is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here Maryland has conferred those roles only on the Juvenile Court judge. Thus, regardless of which party is initially favored by the master's proposals, and regardless of the presence or absence of exceptions, the judge is empowered to accept, modify, or reject those proposals. [Footnote 14]Finally, there is nothing in the record to indicate that the procedure authorized under Rule 911 unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U.S. Page 438 U. S. 217 184 (1957). Indeed, there is nothing to indicate that the juvenile is even brought before the judge while he conducts the "hearing on the record," or that the juvenile's attorney appears at the "hearing" and presents oral argument or written briefs. But even if there were such participation or appearance, the burdens are more akin to those resulting from a judge's permissible request for post-trial briefing or argument following a bench trial than to the "expense" of a full-blown second trial contemplated by the Court in Green.In their effort to characterize a Rule 911 proceeding as two trials for double jeopardy purposes, appellees rely on two decisions of this Court, Breed v. Jones, 421 U. S. 519 (1975), and United States v. Jenkins, 420 U. S. 358 (1975). [Footnote 15]In Breed, we held that a juvenile was placed twice in jeopardy when, after an adjudicatory hearing in Juvenile Court on a charge of delinquent conduct, he was transferred to adult criminal court, tried, and convicted for the same conduct. All parties conceded that jeopardy attached at the second proceeding Page 438 U. S. 218 in criminal court. The State contended, however, that jeopardy did not attach in the Juvenile Court proceeding, although that proceeding could have culminated in a deprivation of the juvenile's liberty. We rejected this contention and also the contention that somehow jeopardy "continued" from the first to the second trial. Breed is therefore inapplicable to the Maryland scheme, where juveniles are subjected to only one proceeding, or "trial."Appellees also stress this language from Jenkins:"[I]t is enough for purposes of the Double Jeopardy Clause . . . that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. . . . [To do so] would violate the Double Jeopardy Clause."420 U.S. at 420 U. S. 370 (emphasis added).Although we doubt that the Court's decision in a case can be correctly identified by reference to three isolated sentences, any language in Jenkins must now be read in light of our subsequent decision in United States v. Scott, 437 U. S. 82 (1978). In Scott, we held that it is not all proceedings requiring the making of supplemental findings that are barred by the Double Jeopardy Clause, but only those that follow a previous trial ending in an acquittal; in a conviction either not reversed on appeal or reversed because of insufficient evidence, see Burks v. United States, supra; or in a mistrial ruling not prompted by "manifest necessity," see Arizona v. Washington, 434 U. S. 497 (1978). A Juvenile Court judge's decision terminating a Rule 911 proceeding follows none of those occurrences. Furthermore, Jenkins involved appellate review of the final judgment of a trial court fully empowered to enter that judgment. Nothing comparable occurs in a Rule 911 proceeding. See n 15, supra. Page 438 U. S. 219To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911 -- either sua sponte, in response to the State's exceptions, or in response to the juvenile's exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection -- he does so without violating the constraints of the Double Jeopardy Clause.Accordingly, we reverse and remand for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSwisher v. Brady, 438 U.S. 204 (1978)Swisher v. BradyNo. 77-653Argued March 29, 1978Decided June 28, 1978438 U.S. 204SyllabusAppellee minors brought a class action under 42 U.S.C. § 1983 seeking, on the basis of the Double Jeopardy Clause of the Fifth Amendment as applied to the States by the Fourteenth, to prevent the State of Maryland from filing exceptions with the Juvenile Court to proposed nondelinquency findings made by masters of that court pursuant to a rule of procedure (Rule 911) permitting the State to file such exceptions, but further providing that the Juvenile Court judge, who is empowered to accept, modify, or reject, the master's proposals, can act on the exceptions only on the basis of the record made before the master, except that he may receive additional evidence to which the parties do not object. The District Court held that a juvenile subjected to a hearing before the master is placed in jeopardy, even though the master has no power to enter a final order, and that the Juvenile Court judge's review placed the juvenile in jeopardy a second time, and accordingly enjoined the appellant state officials from taking exceptions to either a master's proposed finding of nondelinquency or his proposed disposition.Held: The Double Jeopardy Clause does not prohibit Maryland officials, acting in accordance with Rule 911, from taking exceptions to a master's proposed findings. Breed v. Jones, 421 U. S. 519, distinguished. Pp. 438 U. S. 214-219.(a) The State by filing such exceptions does not require an accused to stand trial a second time, but rather the State has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge. P. 438 U. S. 215.(b) A Rule 911 proceeding does not provide the prosecution the forbidden "second crack" at the accused, since, under the Rule, the State presents its evidence once before the master, and the record is then closed unless the minor consents to the presentation of additional evidence before the judge. Pp. 438 U. S. 215-216.(c) Nor does Rule 911, on the alleged ground that it gives the State a chance to persuade two factfinders -- the master and the judge -- violate the Double Jeopardy Clause's prohibition against the prosecutor's Page 438 U. S. 205 enhancing t,he risk that an innocent defendant may be convicted, since the Rule confers the role of factfinder and adjudicator only on the judge, who is empowered to accept, modify, or reject the master's proposals. P. 438 U. S. 216.(d) There is nothing in the record to indicate that the Rule 911 procedure unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U. S. 184, since, even if the juvenile participates and his attorney appears in the Juvenile Court proceeding (and it does not appear that this is the practice), the burdens are more akin to those resulting from a judge's permissible request for post-trial briefing or argument following a bench trial than to the "expense" of a full-blown second trial. Pp. 438 U. S. 216-217.(e) To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911 -- either sua sponte or in response to the State's or juvenile's exceptions, and either on the record before the master or on a record supplemented by evidence to which the parties do not object -- he does so without violating the Double Jeopardy Clause's constraints. United States v. Jenkins, 420 U. S. 358, distinguished; cf. United States v. Scott, 437 U. S. 82. Pp. 438 U. S. 217-219.436 F. Supp. 1361, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and POWELL, JJ., joined, post, p. 438 U. S. 219. Page 438 U. S. 206

1968_770

MR. JUSTICE STEWART delivered the opinion of the Court.This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to the petitioner's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to "look around." The petitioner objected, but was advised that, Page 395 U. S. 754 "on the basis of the lawful arrest," the officers would nonetheless conduct a search. No search warrant had been issued.Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms, the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner's wife to open drawers and"to physically move contents of the drawers from side to side so that [they] might view any items that would have come from [the] burglary."After completing the search, they seized numerous items -- primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour.At the petitioner's subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal, 61 Cal. Rptr. 714, and the California Supreme Court, 68 Cal. 2d 436, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest arrant was invalid because the supporting affidavit was set out in conclusory terms, [Footnote 1] but held that, since the arresting officers had procured the warrant "in good faith," and since, in any event, they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion, the appellate courts went on to hold that the search of the petitioner's home Page 395 U. S. 755 had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial constitutional claims. 393 U.S. 958.Without deciding the question, we proceed on the hypothesis that the California courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident.Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, 232 U. S. 383, in which the Court stated:"What then is the present case? Before answering that inquiry specifically, it may be well, by a process of exclusion, to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime."Id. at 232 U. S. 392. That statement made no reference to any right to search the place where an arrest occurs, but was limited to a right to search the "person." Eleven years later, the case of Carroll v. United States, 267 U. S. 132, brought the following embellishment of the Weeks statement:"When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held Page 395 U. S. 756 as evidence in the prosecution."Id. at 276 U. S. 158. (Emphasis added.) Still, that assertion too was far from a claim that the "place" where one is arrested may be searched so long as the arrest is valid. Without explanation, however, the principle emerged in expanded form a few months later in Agnello v. United States, 269 U. S. 20 -- although still by way of dictum:"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 267 U. S. 158; Weeks v. United States, 232 U. S. 383, 232 U. S. 392."269 U.S. at 269 U. S. 30. And in Marron v. United States, 275 U. S. 192, two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that case, federal agents had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. When they arrived at the premises to be searched, they saw "that the place was used for retailing and drinking intoxicating liquors." Id. at 275 U. S. 194. They proceeded to arrest the person in charge and to execute the warrant. In searching a closet for the items listed in the warrant, they came across an incriminating ledger, concededly not covered by the warrant, which they also seized. The Court upheld the seizure of the ledger by holding that, since the agents had made a lawful arrest,"[t]hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise."Id. at 275 U. S. 199. Page 395 U. S. 757That the Marron opinion did not mean all that it seemed to say became evident, however, a few years later in Go-Bart Importing Co. v. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. In each of those cases, the opinion of the Court was written by Mr. Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of persons whom they had lawfully arrested, [Footnote 2] and had taken several papers from a desk, a safe, and other parts of the office. The Court noted that no crime had been committed in the agents' presence, and that, although the agent in charge "had an abundance of information and time to swear out a valid [search] warrant, he failed to do so." 282 U.S. at 282 U. S. 358. In holding the search and seizure unlawful, the Court stated:"Plainly the case before us is essentially different from Marron v. United States, 275 U. S. 192. There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall, who, in pursuance of a conspiracy, was actually engaged in running a saloon. As an incident to the arrest, they seized a ledger in a closet where the liquor or some of it was kept, and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force, or general search, or rummaging of the place."282 U.S. at 282 U. S. 358. This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a search of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. 285 U.S. at 285 U. S. 465.The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in Harris v. United Page 395 U. S. 758 States, 331 U. S. 145, decided in 1947. In that case, officers had obtained a warrant for Harris' arrest on the basis of his alleged involvement with the cashing and interstate transportation of a forged check. He was arrested in the living room of his four-room apartment, and, in an attempt to recover two canceled checks thought to have been used in effecting the forgery, the officers undertook a thorough search of the entire apartment. Inside a desk drawer, they found a sealed envelope marked "George Harris, personal papers." The envelope, which was then torn open, was found to contain altered Selective Service documents, and those documents were used to secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court rejected Harris' Fourth Amendment claim, sustaining the search as "incident to arrest." Id. at 331 U. S. 151.Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States, 334 U. S. 699, agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously "seiz[ing] the illicit distillery." Id. at 334 U. S. 702. The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant -- in spite of the fact that they had had more than enough time before the raid to do so -- rendered the search unlawful. The opinion stated:"It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. . . . This rule rests upon the desirability of having magistrates, rather than police officers, determine when searches and seizures are permissible and what limitations should be placed upon such activities. . . . To provide the necessary security against unreasonable intrusions upon the private lives of Page 395 U. S. 759 individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement.""* * * *" "A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest."Id. at 334 U. S. 705, 334 U. S. 708.In 1950, two years after Trupiano, [Footnote 3] came United States v. Rabinowitz, 339 U. S. 56, the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information, they secured a warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers "searched the desk, safe, and file cabinets in the office for about an hour and a half," id. at 339 U. S. 59, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the principle giving law enforcement authorities "[t]he right to search the place where the arrest is made in order to find and seize things connected with the crime. . . .'" Id. at 339 U. S. 61. Harris was regarded as "ample authority" for that conclusion. Id. at 339 U. S. 63. The opinion rejected the rule of Trupiano that,"in seizing goods and articles, law enforcement agents must secure and use search warrants Page 395 U. S. 760 wherever reasonably practicable."The test, said the Court, "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." Id. at 339 U. S. 66.Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested. [Footnote 4] And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis.Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on an unimpeachable line of authority. As Mr. Justice Frankfurter commented in dissent in that case, the "hint" contained in Weeks was, without persuasive justification, "loosely turned into dictum and finally elevated to a decision." 339 U.S. at 339 U. S. 75. And the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court.Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's proscription of "unreasonable searches and seizures" Page 395 U. S. 761 must be read in light of "the history that gave rise to the words" -- a history of "abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution. . . ." 339 U.S. at 339 U. S. 69. The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. [Footnote 5] In the scheme of the Amendment, therefore, the requirement that "no Warrants shall issue, but upon probable cause," plays a crucial part. As the Court put it in McDonald v. United States, 335 U. S. 451:"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals, nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . . . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative."Id. at 335 U. S. 455-456. Page 395 U. S. 762 Even in the Agnello case, the Court relied upon the rule that"[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause."269 U.S. at 269 U. S. 33. Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and "the burden is on those seeking [an] exemption [from the requirement] to show the need for it. . . ." United States v. Jeffers, 342 U. S. 48, 342 U. S. 51.Only last Term, in Terry v. Ohio, 392 U. S. 1, we emphasized that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," id. at 392 U. S. 20, [Footnote 6] and that "[t]he scope of [a] search must be strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 392 U. S. 19. The search undertaken by the officer in that "stop and frisk" case was sustained under that test, because it was no more than a "protective . . . search for weapons." Id. at 392 U. S. 29. But in a companion case, Sibron v. New York, 392 U. S. 40, we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection. [Footnote 7] Rather, the search had been made in order to find narcotics, which were, in fact, found.A similar analysis underlies the "search incident to arrest" principle, and marks its proper extent. When an Page 395 U. S. 763 arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs -- or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. [Footnote 8] The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.This is the principle that underlay our decision in Preston v. United States, 376 U. S. 364. In that case, three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held the search to have been unlawful under the Fourth Amendment, despite the contention that it had Page 395 U. S. 764 been incidental to a valid arrest. Our reasoning was straightforward:"The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime -- things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest."Id. at 376 U. S. 367. [Footnote 9] The same basic principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a proper arrest. We sustained the search. however, only because its scope had been "reasonably limited" by the "need to seize weapons" and "to prevent the destruction of evidence," to which Preston had referred. We emphasized that the arresting officer"did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons."392 U.S. at 392 U. S. 67.It is argued in the present case that it is "reasonable" to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police Page 395 U. S. 765 conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively "reasonable" to search a man's house when he is arrested on his front lawn -- or just down the street -- than it is when he happens to be in the house at the time of arrest. [Footnote 10] As Mr. Justice Frankfurter put it:"To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an 'unreasonable search' is forbidden -- that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response."United States v. Rabinowitz, 339 U.S. at 339 U. S. 83 (dissenting opinion). Thus, although "[t]he recurring questions of the reasonableness of searches" depend upon "the facts and circumstances -- the total atmosphere of the case," id. at 339 U. S. 63, 339 U. S. 66 (opinion of the Court), those facts and circumstances must be viewed in the light of established Fourth Amendment principles. Page 395 U. S. 766It would be possible, of course, to draw a line between Rabinowitz and Harris, on the one hand, and this case, on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while, in the case before us, an entire house was searched. But such a distinction would be highly artificial. The rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration relevant to the Fourth Amendment suggests any point of rational limitation once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. [Footnote 11] The only reasoned distinction is one between a search of the person arrested and the area within his reach, on the one hand, and more extensive searches, on the other. [Footnote 12] Page 395 U. S. 767The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home, rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy was utilized here, [Footnote 13] but the fact remains that, had he been arrested earlier in the day, at his place of employment, rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 16 F.2d 202, remains:"After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis, the power would not exist if the supposed offender were not found on the premises; Page 395 U. S. 768 but it is small consolation to know that one's papers are safe only so long as one is not at home."Id. at 203.Rabinowitz and Harris have been the subject of critical commentary for many years, [Footnote 14] and have been relied upon less and less in our own decisions. [Footnote 15] It is time, for the reasons we have stated, to hold that, on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed.Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, "unreasonable" under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand. [Footnote 16]Reversed

U.S. Supreme CourtChimel v. California, 395 U.S. 752 (1969)Chimel v. CaliforniaNo. 770Argued March 27, 1969Decided June 23, 1969395 U.S. 752SyllabusPolice officers, armed with an arrest warrant but not a search warrant, were admitted to petitioner's home by his wife, where they awaited petitioner's arrival. When he entered, he was served with the warrant. Although he denied the officers' request to "look around," they conducted a search of the entire house "on the basis of the lawful arrest." At petitioner's trial on burglary charges, items taken from his home were admitted over objection that they had been unconstitutionally seized. His conviction was affirmed by the California appellate courts, which held, despite their acceptance of petitioner's contention that the arrest warrant was invalid, that, since the arresting officers had procured the warrant "in good faith," and since, in any event, they had had sufficient information to constitute probable cause for the arrest, the arrest was lawful. The courts also held that the search was justified as incident to a valid arrest.Held: Assuming the arrest was valid, the warrantless search of petitioner's house cannot be constitutionally justified as incident to that arrest. Pp. 395 U. S. 755-768.(a) An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area "within the immediate control" of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Pp. 395 U. S. 762-763.(b) For the routine search of rooms other than that in which an arrest occurs, or for searching desk drawers or other closed or concealed areas in that room itself, absent well recognized exceptions, a search warrant is required. P. 395 U. S. 763.(c) While the reasonableness of a search incident to arrest depends upon "the facts and circumstances -- the total atmosphere of the case," those facts and circumstances must be viewed in the light of established Fourth Amendment principles, and the only reasoned distinction is one between (1) a search of the person arrested and the area within his reach, and (2) more extensive searches. Pp. 395 U. S. 765-766. Page 395 U. S. 753(d) United Ste v. Rabinowitz, 339 U. S. 56, and Harris v. United States, 331 U. S. 145, on their facts, and insofar as the principles they stand for are inconsistent with this decision, are no longer to be followed. P. 395 U. S. 768.(e) The scope of the search here was unreasonable under the Fourth and Fourteenth Amendments, as it went beyond petitioner's person and the area from within which he might have obtained a weapon or something that could have been used as evidence against him, and there was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. P. 395 U. S. 768.68 Cal. 2d 436, 439 P.2d 333, reversed.

1974_73-1461

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the issue whether a state statute specifying for males a greater age of majority than it specifies for females denies, in the context of a parent's obligation for support payments for his children, the equal protection of the laws guaranteed by § 1 of the Fourteenth Amendment.IAppellant Thelma B. Stanton and appellee James Lawrence Stanton, Jr., were married at Elko, Nev., in February, 1951. At the suit of the appellant, they were divorced in Utah on November 29, 1960. They have a daughter, Sherri Lyn, born in February, 1953, and a son, Rick Arlund, born in January, 1955. Sherri became 18 on February 12, 1971, and Rick on January 29, 1973.During the divorce proceedings in the District Court of Salt Lake County, the parties entered into a stipulation as to property, child support, and alimony. The court awarded custody of the children to their mother and incorporated provisions of the stipulation into its findings and conclusions and into its decree of divorce. Specifically, as to alimony and child support, the decree provided:"Defendant is ordered to pay to plaintiff the sum of $300.00 per month as child support and alimony, Page 421 U. S. 9 $100.00 per month for each child as child support, and $100.00 per month as alimony, to be paid on or before the 1st day of each month through the office of the Salt Lake County Clerk."App. 6. The appellant thereafter remarried; the court, pursuant to another stipulation, then modified the decree to relieve the appellee from payment of further alimony. The appellee also later remarried.When Sherri attained 18, the appellee discontinued payments for her support. In May, 1973, the appellant moved the divorce court for entry of judgment in her favor and against the appellee for, among other things, support for the children for the periods after each respectively attained the age of 18 years. The court concluded that, on February 12, 1971, Sherri"became 18 years of age, and, under the provisions of [§] 15-2-1 Utah Code Annotated 1953, thereby attained her majority. Defendant is not obligated to plaintiff for maintenance and support of Sherri Lyn Stanton since that date."App. 23. An order denying the appellant's motion was entered accordingly. Id. at 225.The appellant appealed to the Supreme Court of Utah. She contended, among other things, that Utah Code Ann. 15-2-1 (1953) * to the effect that the period of minority for males extends to age 21 and for females to age 18, is invidiously discriminatory, and serves to deny due process and equal protection of the laws in violation of the Fourteenth Amendment and of the corresponding Page 421 U. S. 10 provisions of the Utah Constitution, namely, Art. I, §§ 7 and 24, and Art. IV, § 1. On this issue, the Utah court affirmed. 30 Utah 2d 315, 517 P.2d 1010 (1974). The court acknowledged: "There is no doubt that the questioned statute treats men and women differently," but said that people may be treated differently"so long as there is a reasonable basis for the classification, which is related to the purposes of the act, and it applies equally and uniformly to all persons within the class."Id. at 318, 517 P.2d at 1012. The court referred to what it called some "old notions," namely, "that generally it is the man's primary responsibility to provide a home and its essentials," ibid.; that "it is a salutary thing for him to get a good education and/or training before he undertakes those responsibilities," id. at 319, 517 P.2d at 1012; that "girls tend generally to mature physically, emotionally and mentally before boys"; and that "they generally tend to marry earlier," ibid. It concluded:"[I]t is our judgment that there is no basis upon which we would be justified in concluding that the statute is so beyond a reasonable doubt in conflict with constitutional provisions that it should be stricken down as invalid."Id. at 319, 517 P.2d at 1013. If such a change were desirable, the court said, "that is a matter which should commend itself to the attention of the legislature." Id. at 320, 517 P.2d at 1013. The appellant, thus, was held not entitled to support for Sherri for the period after she attained 18, but was entitled to support for Rick "during his minority" unless otherwise ordered by the trial court. Ibid., 517 P.2d at 1014.We noted probable jurisdiction. 419 U.S. 893 (1974). Page 421 U. S. 11IIThe appellee initially suggests that the support issue is moot, and that, in any event, the appellant lacks standing. These arguments are related, and we reject both of them.A. The mootness suggestion is based on the propositions that both the appellant and Sherri are now over 21, and that neither possesses rights that "can be affected by the outcome of this proceeding." Brief for Appellee 9. At the time the case was before us on the jurisdictional statement, the appellee suggested that the case involved a nonjusticiable political question. Appellee's Motion to Dismiss 7. Each approach, of course, overlooks the fact that what is at issue is support for the daughter during her years between 18 and 21. If appellee, under the divorce decree, is obligated for Sherri's support during that period, it is an obligation that has not been fulfilled, and there is an amount past due and owing from the appellee. The obligation issue, then, plainly presents a continuing live case or controversy. It is neither moot nor nonjusticiable.B. The suggestion as to standing is that the appellant is not of the age group affected by the Utah statute, and that she therefore lacks a personal stake in the resolution of the issue. It is said that, when the appellant signed the stipulation as to support payments, she took the Utah law as it was, and thus waived, or is estopped from asserting, any right to support payments after the daughter attained age 18.We are satisfied that it makes no difference whether the appellant's interest in any obligation of the appellee, under the divorce decree, for Sherri's support between ages 18 and 21, is regarded as an interest personal to appellant or as that of a fiduciary. The Utah court has described support money as "compensation to a spouse Page 421 U. S. 12 for the support of minor children." Anderson v. Anderson, 110 Utah 300, 306, 172 P.2d 132, 135 (1946). And the right to past due support money appears to be the supplying spouse's, not the child's. Larsen v. Larsen, 5 Utah 2d 224, 228, 300 P.2d 596, 598 (1956). See also Baggs v. Anderson, 528 P.2d 141, 143 (Utah 1974). The appellant, therefore, clearly has 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); Flast v. Cohen, 392 U. S. 83, 392 U. S. 102 (1968). We see nothing in the stipulation itself that is directed to the question when majority is reached for purposes of support payments or that smacks of waiver. In addition, the Uniform Civil Liability for Support Act has been in effect in Utah since 1957. Laws of Utah, 1957, c. 110, now codified as Utah Code Ann. §§ 78-45-1 through 78-45-13 (Supp. 1973). Section 7845-4 specifically provides: "Every woman shall support her child." This is in addition to the mandate contained in § 78-45-3: "Every man shall support his wife and his child." "Child" is defined to mean "a son or daughter under the age of twenty-one years." § 78-45-2(4). And § 78-45-12 states: "The rights herein created are in addition to and not in substitution [of] any other rights."The appellant herself thus had a legal obligation under Utah law to support her daughter until Sherri became 21. That obligation, however, obviously was not in derogation of any right she might have against the appellee under the divorce decree. Her interest in the controversy, therefore, is distinct and significant, and is one that assures "concrete adverseness" and proper standing on her part. Page 421 U. S. 13IIIWe turn to the merits. The appellant argues that Utah's statutory prescription establishing different ages of majority for males and females denies equal protection; that it is a classification based solely on sex and affects a child's "fundamental right" to be fed, clothed, and sheltered by its parents; that no compelling state interest supports the classification; and that the statute can withstand no judicial scrutiny, "close" or otherwise, for it has no relationship to any ascertainable legislative objective. The appellee contends that the test is that of rationality, and that the age classification has a rational basis, and endures any attack based on equal protection.We find it unnecessary in this case to decide whether a classification based on sex is inherently suspect. See Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Schlesinger v. Ballard, 419 U. S. 498 (1975); Geduldig v. Aiello, 417 U. S. 484 (1974); Kahn v. Shevin, 416 U. S. 351 (1974); Frontiero v. Richardson, 411 U. S. 677 (1973); Reed v. Reed, 404 U. S. 71 (1971).Reed, we feel, is controlling here. That case presented an equal protection challenge to a provision of the Idaho probate code which gave preference to males over females when persons otherwise of the same entitlement applied for appointment as administrator of a decedent's estate. No regard was paid under the statute to the applicants' respective individual qualifications. In upholding the challenge, the Court reasoned that the Idaho statute accorded different treatment on the basis of sex, and that it "thus establishes a classification subject to scrutiny under the Equal Protection Clause." Id. at 404 U. S. 75. The Clause, it was said, denies to States"the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute."Id. Page 421 U. S. 14 at 404 U. S. 75-76."A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920)."Id. at 404 U. S. 76. It was not enough to save the statute that among its objectives were the elimination both of an area of possible family controversy and of a hearing on the comparative merits of petitioning relatives.The test here, then, is whether the difference in sex between children warrants the distinction in the appellee's obligation to support that is drawn by the Utah statute. We conclude that it does not. It may be true, as the Utah court observed, and as is argued here, that it is the man's primary responsibility to provide a home, and that it is salutary for him to have education and training before he assumes that responsibility; that girls tend to mature earlier than boys; and that females tend to marry earlier than males. The last mentioned factor, however, under the Utah statute, loses whatever weight it otherwise might have, for the statute states that "all minors obtain their majority by marriage"; thus, minority, and all that goes with it, is abruptly lost by marriage of a person of either sex at whatever tender age the marriage occurs.Notwithstanding the "old notions" to which the Utah court referred, we perceive nothing rational in the distinction drawn by § 15-2-1 which, when related to the divorce decree, results in the appellee's liability for support for Sherri only to age 18, but for Rick to age 21. This imposes "criteria wholly unrelated to the objective of that statute." A child, male or female, is still a child. No longer is the female destined solely for the home and the rearing of the family, and only the male for the Page 421 U. S. 15 marketplace and the world of ideas. See Taylor v. Louisiana, 419 U. S. 522, 419 U. S. 535 n. 17 (1975). Women's activities and responsibilities are increasing and expanding. Coeducation is a fact, not a rarity. The presence of women in business, in the professions, in government and, indeed, in all walks of life where education is a desirable, if not always a necessary, antecedent is apparent, and a proper subject of judicial notice. If a specificd age of minority is required for the boy in order to assure him parental support while he attains his education and training, so too is it for the girl. To distinguish between the two on educational grounds is to be self-serving: if the female is not to be supported so long as the male, she hardly can be expected to attend school as long as he does, and bringing her education to an end earlier coincides with the role-typing society has long imposed. And if any weight remains in this day to the claim of earlier maturity of the female, with a concomitant inference of absence of need for support beyond 18, we fail to perceive its unquestioned truth or its significance, particularly when marriage, as the statute provides, terminates minority for a person of either sex.Only Arkansas, as far as our investigation reveals, remains with Utah in fixing the age of majority for females at 18, and for males at 21. Ark.Stat.Ann. § 57-103 (1971). See Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972). Furthermore, Utah itself draws the 18-21 distinction only in § 15-2-1 defining minority, and in § 30-1-9 relating to marriage without the consent of parent or guardian. See also § 30-1-2(4), making void a marriage where the male is under 16 or the female under 14. Elsewhere, in the State's present constitutional and statutory structure, the male and the female appear to be treated alike. The State's Constitution provides that the rights of Utah citizens to vote and hold office "shall not Page 421 U. S. 16 be denied or abridged on account of sex," and that "[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges," Art. IV, § 1, and, since long before the Nation's adoption of the Twenty-sixth Amendment in 1971, did provide that every citizen "of the age of twenty-one years and upwards," who satisfies durational requirements, "shall be entitled to vote." Art. IV, § 2. Utah's statutes provide that any citizen over the age of 21 who meets specificd nonsex qualifications is "competent to act as a juror," Utah Code Ann. § 78-46-8, may be admitted to the practice of law, § 78-51-10, and may act as an incorporator, § 16-10-48, and, if under 21 and in need, may be entitled to public assistance, § 55-15a-17. The ages at which persons may serve in legislative, executive, and judicial offices are the same for males and females. Utah Const., Art. VI, § 5, Art. VII, § 3, and Art. VIII, § 2. Tobacco may not be sold, purchased, or possessed by persons of either sex under 19 years of age. §§ 76-10-104 and 76-10-105 (see Laws of Utah, 1974, §§ 39-40). No age differential is imposed with respect to the issuance of motor vehicle licenses. § 41-2-10. State adult education programs are open to every person 18 years of age or over. § 53-30-5. The Uniform Gifts to Minors Act is in effect in Utah and defines a minor, for its purposes, as any person "who has not attained the age of twenty-one years." § 75-15-2.11 (Supp. 1973). Juvenile court jurisdiction extends to persons of either sex under a designated age. § 55-10-64 and 55-10-77. Every person over the age of 18 and of sound mind may dispose of his property by will. § 74-1-1. And the. Uniform Civil Liability for Support Act, noted above and in effect in Utah since 1957, imposes on each parent an obligation of support of both sons and daughters until age 21. §§ 78-45-2(4), 785-3, and 78-45-4 (Supp. 1973). Page 421 U. S. 17This is not t say that § 15-2-1 does not have important effect in application. A "minor" may disaffirm his contracts. § 15-2-2. An "infant" must appear in court by guardian or guardian ad litem. Utah Rule Civ.Proc. 17(b). A parent has a right of action for injury to, or wrongful death of, "a minor child." § 78-11-6. A person "[u]nder the age of majority" is not competent or entitled to serve as an administrator of a decedent's estate, § 75-4-4, or as the executor of a decedent's will. § 75-3-15(1). The statute of limitations is tolled while a person entitled to bring an action is "[u]nder the age of majority." § 78-12-36. Thus, the distinction drawn by § 15-2-1 affects other rights and duties. It has pervasive effect, both direct and collateral.We therefore conclude that, under any test -- compelling state interest, or rational basis, or something in between -- § 15-2-1, in the context of child support, does not survive an equal protection attack. In that context, no valid distinction between male and female may be drawn.IVOur conclusion that, in the context of child support, the classification effectuated by § 15-2-1 denies the equal protection of the laws, as guaranteed by the Fourteenth Amendment, does not finally resolve the controversy as between this appellant and this appellee. With the age differential held invalid, it is not for this Court to determine when the appellee's obligation for his children's support, pursuant to the divorce decree, terminates under Utah law. The appellant asserts that, with the classification eliminated, the common law applies, and that, at common law, the age of majority for both males and females is 21. The appellee claims that any unconstitutional inequality between males and females is to be remedied by treating males as adults at age 18, rather than by withholding the privileges of adulthood from Page 421 U. S. 18 women until they reach 21. This plainly is an issue of state law to be resolved by the Utah courts on remand; the issue was noted incidentally by the Supreme Court of Utah. 30 Utah 2d at 319, 517 P.2d at 1013. The appellant, although prevailing here on the federal constitutional issue, may or may not ultimately win her lawsuit. See Harrigfeld v. District Court, 95 Idaho 540, 511 P.2d 822 (1973); Commonwealth v. Butler, 458 Pa. 289 328 A.2d 851 (1974); Skinner v. Oklahoma, 316 U. S. 535, 316 U. S. 542-543 (1942).The judgment of the Supreme Court of Utah is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtStanton v. Stanton, 421 U.S. 7 (1975)Stanton v. StantonNo. 73-1461Argued February 19, 1975Decided April 15, 1975421 U.S. 7SyllabusWhen appellant wife and appellee husband were divorced in Utah in 1960, the decree, incorporating the parties' stipulation, ordered appellee to make monthly payments to appellant for the support of the parties' children, a daughter, then age seven, and a son, then age five. Subsequently, when the daughter became 18, appellee discontinued payments for her support, and the divorce court, pursuant to a Utah statute which provides that the period of minority for males extends to age 21 and for females to age 18, denied appellant's motion for support of the daughter for the period after she attained 18. On appeal the Utah Supreme Court affirmed, rejecting appellant's contention, inter alia, that the statute violated the Equal Protection Clause of the Fourteenth Amendment.Held:1. The support issue is not rendered moot by the fact that appellant and the daughter are now both over 21, since, if appellee is obligated by the divorce decree to support the daughter between ages 18 and 21, there is an amount past due and owing. Nor does appellant lack standing because she is not of the age group affected by the statute; another statute obligates her to support the daughter to age 21. Pp. 421 U. S. 11-12.2. In the context of child support, the classification effectuated by the challenged statute denies the equal protection of the laws, as guaranteed by the Fourteenth Amendment. Reed v. Reed, 404 U. S. 71. Notwithstanding the "old notions" cited by the state court, that it is the man's primary responsibility to provide a home, that it is salutary for him to have education and training before he assumes that responsibility, and that females tend to mature and marry earlier than males, there is nothing rational in the statutory distinction between males and females which, when related to the divorce decree, results in appellee's liability for support for the daughter only to age 18, but for the son to age 21, thus imposing "criteria wholly unrelated to the objective of that statute." Pp. 421 U. S. 13-17.30 Utah 2d 315, 517 P.2d 1010, reversed and remanded. Page 421 U. S. 8BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAB, BRENNAN, STEWART, WHITE, MARSHALL, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 421 U. S. 18.

1985_84-1979

JUSTICE REHNQUIST delivered the opinion of the Court.This case presents important questions concerning claims of workplace "sexual harassment" brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq.IIn 1974, respondent Mechelle Vinson met Sidney Taylor, a vice-president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day, Taylor called her to say that she had been hired. With Taylor as her supervisor, respondent started as a teller-trainee, and thereafter was promoted to teller, head teller, and assistant Page 477 U. S. 60 branch manager. She worked at the same branch for four years, and it is undisputed that her advancement there was based on merit alone. In September, 1978, respondent notified Taylor that she was taking sick leave for an indefinite period. On November 1, 1978, the bank discharged her for excessive use of that leave.Respondent brought this action against Taylor and the bank, claiming that, during her four years at the bank, she had "constantly been subjected to sexual harassment" by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney's fees.At the 11-day bench trial, the parties presented conflicting testimony about Taylor's behavior during respondent's employment. * Respondent testified that, during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job, she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions. These activities ceased after 1977, respondent stated, when she started going with a steady boyfriend.Respondent also testified that Taylor touched and fondled other women employees of the bank, and she attempted to Page 477 U. S. 61 call witnesses to support this charge. But while some supporting testimony apparently was admitted without objection, the District Court did not allow her"to present wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief, but advised her that she might well be able to present such evidence in rebuttal to the defendants' cases."Vinson v. Taylor, 22 EPD � 30,708, p. 14,693, n. 1, 23 FEP Cases 37, 38-39, n. 1 (DC 1980). Respondent did not offer such evidence in rebuttal. Finally, respondent testified that, because she was afraid of Taylor, she never reported his harassment to any of his supervisors and never attempted to use the bank's complaint procedure.Taylor denied respondent's allegations of sexual activity, testifying that he never fondled her, never made suggestive remarks to her, never engaged in sexual intercourse with her, and never asked her to do so. He contended instead that respondent made her accusations in response to a business-related dispute. The bank also denied respondent's allegations, and asserted that any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval.The District Court denied relief, but did not resolve the conflicting testimony about the existence of a sexual relationship between respondent and Taylor. It found instead that"[i]f [respondent] and Taylor did engage in an intimate or sexual relationship during the time of [respondent's] employment with [the bank], that relationship was a voluntary one having nothing to do with her continued employment at [the bank] or her advancement or promotions at that institution."Id. at 14,692, 23 FEP Cases at 42 (footnote omitted). The court ultimately found that respondent "was not the victim of sexual harassment and was not the victim of sexual discrimination" while employed at the bank. Ibid., 23 FEP Cases at 43. Page 477 U. S. 62Although it concluded that respondent had not proved a violation of Title VII, the District Court nevertheless went on to address the bank's liability. After noting the bank's express policy against discrimination, and finding that neither respondent nor any other employee had ever lodged a complaint about sexual harassment by Taylor, the court ultimately concluded that "the bank was without notice, and cannot be held liable for the alleged actions of Taylor." Id. at 14,691, 23 FEP Cases, at 42.The Court of Appeals for the District of Columbia Circuit reversed. 243 U.S.App.D.C. 323, 753 F.2d 141 (1985). Relying on its earlier holding in Bundy v. Jackson, 205 U.S.App.D.C. 444, 641 F.2d 934 (1981), decided after the trial in this case, the court stated that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. The court drew additional support for this position from the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex, 29 CFR § 1604.11(a) (1985), which set out these two types of sexual harassment claims. Believing that "Vinson's grievance was clearly of the [hostile environment] type," 243 U.S.App.D.C. at 327, 753 F.2d at 145, and that the District Court had not considered whether a violation of this type had occurred, the court concluded that a remand was necessary.The court further concluded that the District Court's finding that any sexual relationship between respondent and Taylor "was a voluntary one" did not obviate the need for a remand. "[U]ncertain as to precisely what the [district] court meant" by this finding, the Court of Appeals held that, if the evidence otherwise showed that "Taylor made Vinson's toleration of sexual harassment a condition of her employment," her voluntariness "had no materiality whatsoever." Page 477 U. S. 63 Id. at 328, 753 F.2d at 146. The court then surmised that the District Court's finding of voluntariness might have been based on "the voluminous testimony regarding respondent's dress and personal fantasies," testimony that the Court of Appeals believed "had no place in this litigation." Id. at 328, n. 36, 753 F.2d at 146, n. 36.As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known about the misconduct. The court relied chiefly on Title VII's definition of "employer" to include "any agent of such a person," 42 U.S.C. § 2000e(b), as well as on the EEOC Guidelines. The court held that a supervisor is an "agent" of his employer for Title VII purposes, even if he lacks authority to hire, fire, or promote, since "the mere existence -- or even the appearance -- of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees." 243 U.S.App.D.C. at 332, 753 F.2d at 150.In accordance with the foregoing, the Court of Appeals reversed the judgment of the District Court and remanded the case for further proceedings. A subsequent suggestion for rehearing en banc was denied, with three judges dissenting. 245 U.S.App.D.C. 306, 760 F.2d 1330 (1985). We granted certiorari, 474 U.S. 1047 (1985), and now affirm, but for different reasons.IITitle VII of the Civil Rights Act of 1964 makes it"an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."42 U.S.C. § 2000e-2(a)(1). The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. 110 Cong.Rec. 2577-2584 (1964). The principal argument in opposition Page 477 U. S. 64 to the amendment was that "sex discrimination" was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. See id. at 2577 (statement of Rep. Celler quoting letter from United States Department of Labor); id. at 2584 (statement of Rep. Green). This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on "sex."Respondent argues, and the Court of Appeals held, that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex. Petitioner apparently does not challenge this proposition. It contends instead that, in prohibiting discrimination with respect to "compensation, terms, conditions, or privileges" of employment, Congress was concerned with what petitioner describes as "tangible loss" of "an economic character," not "purely psychological aspects of the workplace environment." Brief for Petitioner 30-31, 34. In support of this claim petitioner observes that, in both the legislative history of Title VII and this Court's Title VII decisions, the focus has been on tangible, economic barriers erected by discrimination.We reject petitioner's view. First, the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "to strike at the entire spectrum of disparate treatment of men and women'" in employment. Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 435 U. S. 707, n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). Petitioner has pointed to nothing in the Act to suggest that Congress contemplated the limitation urged here. Page 477 U. S. 65Second, in 1980 the EEOC issued Guidelines specifying that "sexual harassment," as there defined, is a form of sex discrimination prohibited by Title VII. As an "administrative interpretation of the Act by the enforcing agency," Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 433-434 (1971), these Guidelines,"'while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'"General Electric Co. v. Gilbert, 429 U. S. 125, 429 U. S. 141-142 (1976), quoting Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944). The EEOC Guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII.In defining "sexual harassment," the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 CFR § 1604.11(a) (1985). Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited "sexual harassment," whether or not it is directly linked to the grant or denial of an economic quid pro quo, where"such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."§ 1604.11(a)(3).In concluding that so-called "hostile environment" (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. See generally 45 Fed.Reg. 74676 (1980). Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Page 477 U. S. 66 Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment:"[T]he phrase 'terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . ."454 F.2d at 238. Courts applied this principle to harassment based on race, e.g., Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977); Gray v. Greyhound Lines, East, 178 U.S.App.D.C. 91, 98, 545 F.2d 169, 176 (1976), religion, e.g., Compston v. Borden, Inc., 424 F. Supp. 157 (SD Ohio 1976), and national origin, e.g., Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (CA8 1977). Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982): Page 477 U. S. 67"Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets."Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. Jackson, 205 U.S.App.D.C. at 444-454, 641 F.2d at 934-944; Zabkowicz v. West Bend Co., 589 F. Supp. 780 (ED Wis.1984).Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F.2d at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Ibid. Respondent's allegations in this case -- which include not only pervasive harassment but also criminal conduct of the most serious nature -- are plainly sufficient to state a claim for "hostile environment" sexual harassment.The question remains, however, whether the District Court's ultimate finding that respondent "was not the victim of sexual harassment," 22 EPD � 30,708, at 14,692-14,693, 23 FEP Cases, at 43, effectively disposed of respondent's claim. The Court of Appeals recognized, we think correctly, that this ultimate finding was likely based on one or both of two erroneous views of the law. First, the District Court apparently believed that a claim for sexual harassment will not lie Page 477 U. S. 68 absent an economic effect on the complainant's employment. See ibid. ("It is without question that sexual harassment of female employees in which they are asked or required to submit to sexual demands as a condition to obtain employment or to maintain employment or to obtain promotions falls within protection of Title VII") (emphasis added). Since it appears that the District Court made its findings without ever considering the "hostile environment" theory of sexual harassment, the Court of Appeals' decision to remand was correct.Second, the District Court's conclusion that no actionable harassment occurred might have rested on its earlier "finding" that "[i]f [respondent] and Taylor did engage in an intimate or sexual relationship . . . that relationship was a voluntary one." Id. at 14,692, 23 FEP Cases, at 42. But the fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." 29 CFR § 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof, and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent, by her conduct, indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.Petitioner contends that even if this case must be remanded to the District Court, the Court of Appeals erred in one of the terms of its remand. Specifically, the Court of Appeals stated that testimony about respondent's "dress and personal fantasies," 243 U.S.App.D.C. at 328, n. 36, 753 F.2d at 146, n. 36, which the District Court apparently admitted Page 477 U. S. 69 into evidence, "had no place in this litigation." Ibid. The apparent ground for this conclusion was that respondent's voluntariness vel non in submitting to Taylor's advances was immaterial to her sexual harassment claim. While "voluntariness" in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of "the record as a whole" and "the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 CFR § 1604.11(b) (1985). Respondent's claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court. In this case the District Court concluded that the evidence should be admitted, and the Court of Appeals' contrary conclusion was based upon the erroneous, categorical view that testimony about provocative dress and publicly expressed sexual fantasies "had no place in this litigation." 243 U.S.App.D.C. at 328, n. 36, 753 F.2d at 146, n. 36. While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility.IIIAlthough the District Court concluded that respondent had not proved a violation of Title VII, it nevertheless went on to consider the question of the bank's liability. Finding that "the bank was without notice" of Taylor's alleged conduct, and that notice to Taylor was not the equivalent of notice to the bank, the court concluded that the bank therefore could not be held liable for Taylor's alleged actions. The Court of Appeals took the opposite view, holding that an employer is Page 477 U. S. 70 strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct. The court held that a supervisor, whether or not he possesses the authority to hire, fire, or promote, is necessarily an "agent" of his employer for all Title VII purposes, since "even the appearance" of such authority may enable him to impose himself on his subordinates.The parties and amici suggest several different standards for employer liability. Respondent, not surprisingly, defends the position of the Court of Appeals. Noting that Title VII's definition of "employer" includes any "agent" of the employer, she also argues that, "so long as the circumstance is work-related, the supervisor is the employer and the employer is the supervisor." Brief for Respondent 27. Notice to Taylor that the advances were unwelcome, therefore, was notice to the bank.Petitioner argues that respondent's failure to use its established grievance procedure, or to otherwise put it on notice of the alleged misconduct, insulates petitioner from liability for Taylor's wrongdoing. A contrary rule would be unfair, petitioner argues, since, in a hostile environment harassment case, the employer often will have no reason to know about, or opportunity to cure, the alleged wrongdoing.The EEOC, in its brief as amicus curiae, contends that courts formulating employer liability rules should draw from traditional agency principles. Examination of those principles has led the EEOC to the view that, where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them. Brief for United States and EEOC as Amici Curiae 22. Thus, the courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, Page 477 U. S. 71 whether or not the employer knew, should have known, or approved of the supervisor's actions. E.g., Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (CA6 1972).The EEOC suggests that, when a sexual harassment claim rests exclusively on a "hostile environment" theory, however, the usual basis for a finding of agency will often disappear. In that case, the EEOC believes, agency principles lead to"a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment, and, if available and utilized, whether that procedure was reasonably responsive to the employee's complaint. If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment (obtained, e.g., by the filing of a charge with the EEOC or a comparable state agency). In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials."Brief for United States and EEOC as Amici Curiae 26. As respondent points out, this suggested rule is in some tension with the EEOC Guidelines, which hold an employer liable for the acts of its agents without regard to notice. 29 CFR § 1604.11(c) (1985). The Guidelines do require, however, an"examin[ation of] the circumstances of the particular employment relationship and the job [f]unctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity."Ibid. Page 477 U. S. 72 This debate over the appropriate standard for employer liability has a rather abstract quality about it, given the state of the record in this case. We do not know at this stage whether Taylor made any sexual advances toward respondent at all, let alone whether those advances were unwelcome, whether they were sufficiently pervasive to constitute a condition of employment, or whether they were "so pervasive and so long continuing . . . that the employer must have become conscious of [them]," Taylor v. Jones, 653 F.2d 1193, 1197-1199 (CA8 1981) (holding employer liable for racially hostile working environment based on constructive knowledge).We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner's general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer's Page 477 U. S. 73 interest in correcting that form of discrimination. App. 25. Moreover, the bank's grievance procedure apparently required an employee to complain first to her supervisor, in this case Taylor. Since Taylor was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward.IVIn sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII, that the District Court's findings were insufficient to dispose of respondent's hostile environment claim, and that the District Court did not err in admitting testimony about respondent's sexually provocative speech and dress. As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case.Accordingly, the judgment of the Court of Appeals reversing the judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMeritor Savings Bank v. Vinson, 477 U.S. 57 (1986)Meritor Savings Bank v. VinsonNo. 84-1979Argued March 25, 1986Decided June 19, 1986477 U.S. 57SyllabusRespondent former employee of petitioner bank brought an action against the bank and her supervisor at the bank, claiming that, during her employment at the bank, she had been subjected to sexual harassment by the supervisor in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief and damages. At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between respondent and the supervisor. The District Court denied relief without resolving the conflicting testimony, holding that, if respondent and the supervisor did have a sexual relationship, it was voluntary, and had nothing to do with her continued employment at the bank, and that therefore respondent was not the victim of sexual harassment. The court then went on to hold that, since the bank was without notice, it could not be held liable for the supervisor's alleged sexual harassment. The Court of Appeals reversed and remanded. Noting that a violation of Title VII may be predicated on either of two types of sexual harassment -- (1) harassment that involves the conditioning of employment benefits on sexual favors, and (2) harassment that, while not affecting economic benefits, creates a hostile or offensive working environment -- the Court of Appeals held that, since the grievance here was of the second type, and the District Court had not considered whether a violation of this type had occurred, a remand was necessary. The court further held that the need for a remand was not obviated by the fact that the District Court had found that any sexual relationship between respondent and the supervisor was a voluntary one, a finding that might have been based on testimony about respondent's "dress and personal fantasies" that "had no place in the litigation." As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment by supervisory personnel, whether or not the employer knew or should have known about it.Held:1. A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII. Pp. 477 U. S. 63-69.(a) The language of Title VII is not limited to "economic" or "tangible" discrimination. Equal Employment Opportunity Commission Guidelines fully support the view that sexual harassment leading to non-economic Page 477 U. S. 58 injury can violate Title VII. Here, respondent's allegations were sufficient to state a claim for "hostile environment" sexual harassment. Pp. 477 U. S. 63-67.(b) The District Court's findings were insufficient to dispose of respondent's "hostile environment" claim. The District Court apparently erroneously believed that a sexual harassment claim will not lie absent an economic effect on the complainant's employment, and erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her participation in them was voluntary. Pp. 477 U. S. 67-68.(c) The District Court did not err in admitting evidence of respondent's sexually provocative speech and dress. While "voluntariness" in the sense of consent is no defense to a sexual harassment claim, it does not follow that such evidence is irrelevant as a matter of law in determining whether the complainant found particular sexual advances unwelcome. Pp. 477 U. S. 68-69.2. The Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. While common law agency principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. In this case, however, the mere existence of a grievance procedure in the bank and the bank's policy against discrimination, coupled with respondent's failure to invoke that procedure, do not necessarily insulate the bank from liability. Pp. 477 U. S. 69-73.243 U.S.App.D.C. 323, 753 F.2d 141, affirmed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 477 U. S. 73. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 477 U. S. 74. Page 477 U. S. 59

1971_69-5

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the issue of the constitutionality, under the Due Process Clause of the Fourteenth Amendment, of the cognovit note authorized by Ohio Rev.Code § 2323.13. [Footnote 1] Page 405 U. S. 176The cognovit is the ancient legal device by which the debtor consents in advance to the holder's obtaining a judgment without notice or hearing, and possibly even with the appearance, on the debtor's behalf, of an attorney designated by the holder. [Footnote 2] It was known at least as far back as Blackstone's time. 3 W. Blackstone, Commentaries *397. [Footnote 3] In a case applying Ohio law, it was Page 405 U. S. 177 said that the purpose of the cognovit is "to permit the note holder to obtain judgment without a trial of possible defenses which the signers of the notes might assert." Hadden v. Rumsey Products, Inc., 196 F.2d 92, 96 (CA2 1952). And, long ago, the cognovit method was described by the Chief Justice of New Jersey as "the loosest way of binding a man's property that ever was devised in any civilized country." Alderman v. Diament, 7 N.J.L. 197, 198 (1824). Mr. Dickens noted it with obvious disfavor. Pickwick Papers, c. 47. The cognovit has been the subject of comment, much of it critical. [Footnote 4]Statutory treatment varies widely. Some States specifically authorize the cognovit. [Footnote 5] Others disallow it. [Footnote 6] Page 405 U. S. 178 Some go so far as to make its employment a misdemeanor. [Footnote 7] The majority, however, regulate its use, and many prohibit the device in small loans and consumer sales. [Footnote 8]In Ohio, the cognovit has long been recognized by both statute and court decision. 1 Chase's Statutes, c. 243, § 34 (1810); Osborn v. Hawley, 19 Ohio 130 (1850); Marsden v. Soper, 11 Ohio St. 503 (1860); Watson v. Paine, 25 Ohio St. 340 (1874); Clements v. Hull, 35 Ohio St. 141 (1878). The State's courts, however, give the instrument a strict and limited construction. See Peoples Banking Co. v. Brumfield Hay & Grain Co., 172 Ohio St. 545, 548, 179 N.E.2d 53, 55 (1961).This Court apparently has decided only two cases concerning cognovit notes, and both have come here in a full faith and credit context. National Exchange Bank v. Wiley, 195 U. S. 257 (1904); Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287 (1890). See American Surety Co. v. Baldwin, 287 U. S. 156 (1932).IThe argument that a provision of this kind is offensive to current notions of Fourteenth Amendment due process is, at first glance, an appealing one. However, here, as in nearly every case, facts are important. We state them chronologically:1. Petitioners D. H. Overmyer Co., Inc., of Ohio, and D. H. Overmyer Co., Inc., of Kentucky, are segments of a warehousing enterprise that counsel at one point in Page 405 U. S. 179 the litigation described as having built "in three years . . . 180 warehouses in thirty states." The corporate structure is complex. Because the identity and individuality of the respective corporate entities are not relevant here, we refer to the enterprise in the aggregate as "Overmyer."2. In 1966, a corporation, which then was or at a later date became an Overmyer affiliate, executed a contract with the respondent Frick Co. for the manufacture and installation by Frick, at a cost of $223,000, of an automatic refrigeration system in a warehouse under construction in Toledo, Ohio.3. Overmyer fell behind in the progress payments due from it under the contract. By the end of September, 1966, approximately $120,000 was overdue. Because of this delinquency, Frick stopped its work on October 10. Frick indicated to Overmyer, however, by letter on that date, its willingness to accept an offer from Overmyer to pay $35,000 in cash "provided the balance can be evidenced by interest-bearing judgment notes."4. On November 3, Frick filed three mechanic's liens against the Toledo property for a total of $194,031, the amount of the contract price allegedly unpaid at that time.5. The parties continued to negotiate. In January, 1967, Frick, in accommodation, agreed to complete the work upon an immediate cash payment of 10% ($19,403.10) and payment of the balance of $174,627.90 in 12 equal monthly installments with 6 1/2% interest per annum. On February 17, Overmyer made the 10% payment and executed an installment note calling for 12 monthly payments of $15,498.23 each beginning March 1, 1967. This note contained no confession of judgment provision. It recited that it did not operate as a waiver of the mechanic's liens, but it also stated that Frick would forgo enforcement of those lien rights so long as there was no default under the note. Page 405 U. S. 1806. Frick resumed its work, completed it, and sent Overmyer a notice of completion. On March 17, Overmyer's vice-president acknowledged in writing that the system had been "completed in a satisfactory manner," and that it was "accepted as per the contract conditions."7. Subsequently, Overmyer requested additional time to make the installment payments. It also asked that Frick release the mechanic's liens against the Toledo property. Negotiations between the parties at that time finally resulted in an agreement in June, 1967, that (a) Overmyer would execute a new note for the then-outstanding balance of $130,997 and calling for payment of that amount in 21 equal monthly installments of $6,891.85 each, beginning June 1, 1967, and ending in February, 1969, two years after Frick's completion of the work, as contrasted with the $15,498.23 monthly installments ending February, 1968, specified by the first note; (b) the interest rate would be 6%, rather than 6 1/2%; (c) Frick would release the three mechanic's liens; (d) Overmyer would execute second mortgages, with Frick as mortgagee, on property in Tampa and Louisville; and (e) Overmyer's new note would contain a confession of judgment clause. The new note, signed in Ohio by the two petitioners here, was delivered to Frick some months later by letter dated October 2, 1967, accompanied by five checks for the June through October payments. This letter was from Overmyer's general counsel to Frick's counsel. The second mortgages were executed and recorded, and the mechanic's liens were released. The note contained the following judgment clause:"The undersigned hereby authorize any attorney designated by the Holder hereof to appear in any court of record in the State of Ohio, and waive this issuance and service of process, and confess a judgment Page 405 U. S. 181 against the undersigned in favor of the Holder of this Note, for the principal of this Note plus interest if the undersigned defaults in any payment of principal and interest and if said default shall continue for the period of fifteen(15) days."8. On June 1, 1968, Overmyer ceased making the monthly payments under the new note and, asserting a breach by Frick of the original contract, proceeded to institute a diversity action against Frick in the United States District Court for the Southern District of New York. Overmyer sought damages in excess of $170,000 and a stay of all proceedings by Frick under the note. On July 5, Judge Frankel vacated an ex parte stay he had theretofore granted. On August 7, Judge Mansfield denied Overmyer's motion for reinstatement of the stay. He concluded,"Plaintiff has failed to show any likelihood that it will prevail upon the merits. On the contrary, extensive documentary evidence furnished by defendant indicates that the plaintiff's action lacks merit."9. On July 12, without prior notice to Overmyer, Frick caused judgment to be entered against Overmyer (specifically against the two petitioners here) in the Common Pleas Court of Lucas County. Ohio. The judgment amount was the balance then remaining on the note, namely, $62,370, plus interest from May 1, 1968, and costs. This judgment was effected through the appearance of an Ohio attorney on behalf of the defendants (petitioners here) in that Ohio action. His appearance was "by virtue of the warrant of attorney" in the second note. The lawyer waived the issuance and service of process and confessed the judgment. This attorney was not known to Overmyer, had not been retained by Overmyer, and had not communicated with the petitioners prior to the entry of the judgment. Page 405 U. S. 18210. As required by Ohio Rev.Code § 2323.13(C), the clerk of the state court, on July 16, mailed notices of the entry of the judgment on the cognovit note to Overmyer at addresses in New York, Ohio, and Kentucky.11. On July 22, Overmyer, by counsel, filed in the Ohio court motions to stay execution and for a new trial. The latter motion referred to "[i]rregularity in the proceedings of the prevailing party and of the court. . . ." On August 6, Overmyer filed a motion to vacate judgment and tendered an answer and counterclaim alleging breach of contract by Frick, and damages. A hearing was held. Both sides submitted affidavits. Those submitted by Overmyer asserted lack of notice before judgment and alleged a breach of contract by Frick. A copy of Judge Mansfield's findings, conclusions, and opinion was placed in the record. On November 16, the court overruled each motion.12. Overmyer appealed to the Court of Appeals for Lucas County, Ohio, specifically asserting deprivation of due process violative of the Ohio and Federal Constitutions. That court affirmed with a brief journal entry.13. The Supreme Court of Ohio "sua sponte dismisse[d] the appeal for the reason that no substantial constitutional question exists herein."We granted certiorari. 401 U.S. 992 (1971).IIThis chronology clearly reveals that Overmyer's situation, of which it now complains, is one brought about largely by its own misfortune and failure or inability to pay. The initial agreement between Overmyer and Frick was a routine construction subcontract. Frick agreed to do the work and Overmyer agreed to pay a designated amount for that work by progress payments at specified times. This contract was not accompanied by any promissory note. Page 405 U. S. 183Overmyer then became delinquent in its payments. Frick naturally refrained from further work. This impasse was resolved by the February, 1967, post-contract arrangement, pursuant to which Overmyer made an immediate partial payment in cash and issued its installment note for the balance. Although Frick had suggested a confession of judgment clause, the note, as executed and delivered, contained no provision of that kind.Frick completed its work, and Overmyer accepted the work as satisfactory. Thereafter, Overmyer again asked for relief. At this time, counsel for each side participated in the negotiations. The first note was replaced by the second. The latter contained the confession of judgment provision Overmyer now finds so offensive. However, in exchange for that provision and for its execution of the second mortgages, Overmyer received benefit and consideration in the form of (a) Frick's release of the three mechanic's liens, (b) reduction in the amount of the monthly payment, (c) further time in which the total amount was to be paid, and (d) reduction of a half point in the interest rate.Were we concerned here only with the validity of the June, 1967, agreement under principles of contract law, that issue would be readily resolved. Obviously and undeniably, Overmyer's execution and delivery of the second note were for an adequate consideration and were the product of negotiations carried on by corporate parties with the advice of competent counsel.More than mere contract law, however, is involved here.IIIPetitioner Overmyer first asserts that the Ohio judgment is invalid because there was no personal service upon it, no voluntary appearance by it in Ohio, and no genuine appearance by an attorney on its behalf. Thus, Page 405 U. S. 184 it is said, there was no personal jurisdiction over Overmyer in the Ohio proceeding. The petitioner invokes Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 732 (1878), and other cases decided here and by the Ohio courts enunciating accepted and long-established principles for in personam jurisdiction. McDonald v. Mabee, 243 U. S. 90, 243 U. S. 91 (1917); Vanderbilt v. Vanderbilt, 354 U. S. 416, 354 U. S. 418 (1957); Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944); Railroad Co. v. Goodman, 57 Ohio St. 641, 50 N.E. 1132 (1897); Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 491, 40 N.E. 201, 203 (1895).It is further said that whether a defendant's appearance is voluntary is to be determined at the time of the court proceeding, not at a much earlier date when an agreement was signed; that an unauthorized appearance by an attorney on a defendant's behalf cannot confer jurisdiction; and that the lawyer who appeared in Ohio was not Overmyer's attorney in any sense of the word, but was only an agent of Frick.The argument then proceeds to constitutional grounds. It is said that due process requires reasonable notice and an opportunity to be heard, citing Boddie v. Connecticut, 401 U. S. 371, 401 U. S. 378 (1971). It is acknowledged, however, that the question here is in a context of "contract waiver, before suit has been filed, before any dispute has arisen," and"whereby a party gives up in advance his constitutional right to defend any suit by the other, to notice and an opportunity to be heard, no matter what defenses he may have, and to be represented by counsel of his own choice. [Footnote 9]"In other words, Overmyer's position here specifically is that it is "unconstitutional to waive in advance the right to present a defense in an action on the note." [Footnote 10] It is conceded that, in Ohio, a court has the Page 405 U. S. 185 power to open the judgment upon a proper showing. Bellows v. Bowlus, 83 Ohio App. 90, 93, 82 N.E.2d 429, 432 (1948). But it is claimed that such a move is discretionary, and ordinarily will not be disturbed on appeal, and that it may not prevent execution before the debtor has notice, Griffin v. Griffin, 327 U. S. 220, 327 U. S. 231-232 (1946). Goldberg v. Kelly, 397 U. S. 254 (1970), and Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), are cited.The due process rights to notice and hearing prior to a civil judgment are subject to waiver. In National Equipment Rental, Ltd. . v. Szukhent, 375 U. S. 311 (1964), the Court observed:"[I]t is settled . . . that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether."Id. at 375 U. S. 315-316. And in Boddie v. Connecticut, supra, the Court acknowledged that "the hearing required by due process is subject to waiver." 401 U.S. at 401 U. S. 378-379.This, of course, parallels the recognition of waiver in the criminal context where personal liberty, rather than a property right, is involved. Illinois v. Allen, 397 U. S. 337, 397 U. S. 342-343 (1970) (right to be present at trial); Miranda v. Arizona, 384 U. S. 436, 384 U. S. 444 (1966) (rights to counsel and against compulsory self-incrimination); Fay v. Noia, .372 U.S. 391, 372 U. S. 439 (1963) (habeas corpus); Rogers v. United States, 340 U. S. 367, 340 U. S. 371 (1951) (right against compulsory self-incrimination).Even if, for present purposes, we assume that the standard for waiver in a corporate property right case of this kind is the same standard applicable to waiver in a criminal proceeding, that is, that it be voluntary, knowing, and intelligently made, Brady v. United States, 397 Page 405 U. S. 186 U.S. 742, 397 U. S. 748 (1970); Miranda v. Arizona, 384 U.S. at 384 U. S. 444, or "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938); Fay v. Noia, 372 U.S. at 372 U. S. 439, and even if, as the Court has said in the civil area, "[w]e do not presume acquiescence in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U. S. 292, 301 U. S. 307 (1937), that standard was fully satisfied here.Overmyer is a corporation. Its corporate structure is complicated. Its activities are widespread. As its counsel in the Ohio post-judgment proceeding stated, it has built many warehouses in many States, and has been party to "tens of thousands of contracts with many contractors." This is not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion. There was no refusal on Frick's part to deal with Overmyer unless Overmyer agreed to a cognovit. The initial contract between the two corporations contained no confession of judgment clause. When, later, the first installment note from Overmyer came into being, it, too, contained no provision of that kind. It was only after Frick's work was completed and accepted by Overmyer, and when Overmyer again became delinquent in its payments on the matured claim and asked for further relief, that the second note containing the clause was executed.Overmyer does not contend here that it or its counsel was not aware of the significance of the note and of the cognovit provision. Indeed, it could not do so in the light of the facts. Frick had suggested the provision in October, 1966, but the first note, readjusting the progress payments, was executed without it. It appeared in the second note delivered by Overmyer's own counsel in return for substantial benefits and consideration to Overmyer. Particularly important, it would seem, was the Page 405 U. S. 187 release of Frick's mechanic's liens, but there were, in addition, the monetary relief as to amount, time, and interest rate.Overmyer may not have been able to predict with accuracy just how or when Frick would proceed under the confession clause if further default by Overmyer occurred, as it did, but this inability does not, in itself, militate against effective waiver. See Brady v. United States, 397 U.S. at 397 U. S. 757; McMann v. Richardson, 397 U. S. 759, 397 U. S. 772-773 (1970).We therefore hold that Overmyer, in its execution and delivery to Frick of the second installment note containing the cognovit provision, voluntarily, intelligently, and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.Insurance Co. v. Morse, 20 Wall. 445 (1874), affords no comfort to the petitioners. That case concerned the constitutional validity of a state statute that required a foreign insurance company, desiring to qualify in the State, to agree not to remove any suit against it to a federal court. The Court quite naturally struck down the statute, for it thwarted the authority vested by Congress in the federal courts and violated the Privileges and Immunities Clause.Myers v. Jenkins, 63 Ohio St. 101, 120, 57 N.E. 1089, 1093 (1900), involving an insurance contract that called for adjustment of claims through the company alone and without resort to the courts, is similarly unhelpful.IVSome concluding comments are in order:1. Our holding necessarily means that a cognovit clause is not, per se, violative of Fourteenth Amendment due process. Overmyer could prevail here only if the clause were constitutionally invalid. The facts of this case, as Page 405 U. S. 188 we observed above, are important, and those facts amply demonstrate that a cognovit provision may well serve a proper and useful purpose in the commercial world, and at the same time not be vulnerable to constitutional attack.2. Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue.3. Overmyer, merely because of its execution of the cognovit note, is not rendered defenseless. It concedes that, in Ohio, the judgment court may vacate its judgment upon a showing of a valid defense, and, indeed, Overmyer had a post-judgment hearing in the Ohio court. If there were defenses such as prior payment or mistaken identity, those defenses could be asserted. And there is nothing we see that prevented Overmyer from pursuing its breach of contract claim against Frick in a proper forum. Here, again, that is precisely what Overmyer has attempted to do, thus far unsuccessfully, in the Southern District of New York.The judgment isAffirmed

U.S. Supreme CourtD. H. Overmyer Co., Inc. v. Frick, 405 U.S. 174 (1972)D. H. Overmyer Co., Inc., of Ohio v. FrickNo. 69-5Argued November 9, 1971Decided February 24, 1972405 U.S. 174SyllabusAfter a corporation (Overmyer) had defaulted in its payments for equipment manufactured and being installed by respondent company (Frick), and Overmyer, under a post-contract arrangement, had made a partial cash payment and issued an installment note for the balance, Frick completed the work, which Overmyer accepted as satisfactory. Thereafter Overmyer again asked for relief and, with counsel for both corporations participating in the negotiations, the first note was replaced with a second, which contained a "cognovit" provision in conformity with Ohio law at that time whereby Overmyer consented in advance, should it default in interest or principal payments, to Frick's obtaining a judgment without notice or hearing, and issued certain second mortgages in Frick's favor, Frick agreeing to release three mechanic's liens, to reduce the monthly payment amounts and interest rate, and to extend the time for final payment. When Overmyer, claiming a contract breach, stopped making payments on the new note, Frick, under the cognovit provision, through an attorney unknown to, but on behalf of, Overmyer, and without personal service on or prior notice to Overmyer, caused judgment to be entered on the note. Overmyer's motion to vacate the judgment was overruled after a post-judgment hearing, and the judgment court's decision was affirmed on appeal against Overmyer's contention that the cognovit procedure violated due process requirements.Held: Overmyer, for consideration and with full awareness of the legal consequences, waived its rights to prejudgment notice and hearing, and, on the facts of this case, which involved contractual arrangements between two corporations acting with advice of counsel, the procedure under the cognovit clause (which is not unconstitutional per se) did not violate Overmyer's Fourteenth Amendment rights. Pp. 405 U. S. 182-188.Affirmed.BLACKMUN, J., delivered the opinion of the Court, in which all Members joined except POWELL and REHNQUIST, JJ., who took no part in the consideration or decision of the case. DOUGLAS, J., Page 405 U. S. 175 filed a concurring opinion, in which MARSHALL, J., joined, post, p. 405 U. S. 188.

1974_73-5845

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Metropolitan Edison Co. is a privately owned and operated Pennsylvania corporation which holds a certificate of public convenience issued by the Pennsylvania Public Utility Commission empowering it to deliver electricity to a service area which includes the city of York, Pa. As a condition of holding its certificate, it is subject to extensive regulation by the Commission. Under a provision of its general tariff filed with the Commission, it has the right to discontinue service to any customer on reasonable notice of nonpayment of bills. [Footnote 1] Page 419 U. S. 347Petitioner Catherine Jackson is a resident of York, who has received electricity in the past from respondent. Until September, 1970, petitioner received electric service to her home in York under an account with respondent in her own name. When her account was terminated because of asserted delinquency in payments due for service, a new account with respondent was opened in the name of one James Dodson, another occupant of the residence, and service to the residence was resumed. There is a dispute as to whether payments due under the Dodson account for services provided during this period were ever made. In August, 1971, Dodson left the residence. Service continued thereafter, but concededly no payments were made. Petitioner states that no bills were received during this period.On October 6, 1971, employees of Metropolitan came to the residence and inquired as to Dodson's present address. Petitioner stated that it was unknown to her. On the following day, another employee visited the residence and informed petitioner that the meter had been tampered with so as not to register amounts used. She disclaimed knowledge of this, and requested that the service account for her home be shifted from Dodson's name to that of one Robert Jackson, later identified as her 12-year-old son. Four days later, on October 11, 1971, without further notice to petitioner, Metropolitan employees disconnected her service.Petitioner then filed suit against Metropolitan in the United States District Court for the Middle District of Pennsylvania under the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking damages for the termination and an injunction requiring Metropolitan to continue providing power to her residence until she had been afforded notice, a hearing, and an opportunity to pay any amounts found due. She urged that, under state law she had an Page 419 U. S. 348 entitlement to reasonably continuous electrical service to her home [Footnote 2] and that Metropolitan's termination of her service for alleged nonpayment, action allowed by a provision of its general tariff filed with the Commission, constituted "state action" depriving her of property in violation of the Fourteenth Amendment's guarantee of due process of law. [Footnote 3] Page 419 U. S. 349The District Court granted Metropolitan's motion to dismiss petitioner's complaint on the ground that the termination did not constitute state action, and hence was not subject to judicial scrutiny under the Fourteenth Amendment. [Footnote 4] On appeal, the United States Court of Appeals for the Third Circuit affirmed, also finding an absence of state action. [Footnote 5] We granted certiorari to review this judgment. [Footnote 6]The Due Process Clause of the Fourteenth Amendment provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." In 1883, this Court, in the Civil Rights Cases, 109 U. S. 3, affirmed the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, "however discriminatory or wrongful," against which the Fourteenth Amendment offers no shield. Shelley v. Kraemer, 334 U. S. 1 (1948).We have reiterated that distinction on more than one occasion since then. See, e.g., Evans v. Abney, 396 U. S. 435, 396 U. S. 445 (1970); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 407 U. S. 171-179 (1972). While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is "private," on Page 419 U. S. 350 the one hand, or "state action," on the other, frequently admits of no easy answer. Burton v. Wilmington Parking Authority, 365 U. S. 715, 365 U. S. 723 (1961); Moose Lodge No. 107 v. Irvis, supra, at 407 U. S. 172.Here, the action complained of was taken by a utility company which is privately owned and operated, but which, in many particulars of its business, is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not, by itself, convert its action into that of the State for purposes of the Fourteenth Amendment. [Footnote 7] 407 U.S. at 407 U. S. 176-177. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 462 (1952). It may well be that Page 419 U. S. 351 acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be "state" acts than will the acts of an entity lacking these characteristics. But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, at 407 U. S. 176. The true nature of the State's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met. Burton v. Wilmington Parking Authority, supra.Petitioner advances a series of contentions which, in her view, lead to the conclusion that this case should fall on the Burton side of the line drawn in the Civil Rights Cases, supra, rather than on the Moose Lodge side of that line. We find none of them persuasive.Petitioner first argues that "state action" is present because of the monopoly status allegedly conferred upon Metropolitan by the State of Pennsylvania. As a factual matter, it may well be doubted that the State ever granted or guaranteed Metropolitan a monopoly. [Footnote 8] But assuming that it had, this fact is not determinative in considering Page 419 U. S. 352 whether Metropolitan's termination of service to petitioner was "state action" for purposes of the Fourteenth Amendment. In Pollak, supra, where the Court dealt with the activities of the District of Columbia Transit Co., a congressionally established monopoly, we expressly disclaimed reliance on the monopoly status of the transit authority. 343 U.S. at 343 U. S. 462. Similarly, although certain monopoly aspects were presented in Moose Lodge No. 107, supra, we found that the Lodge's action was not subject to the provisions of the Fourteenth Amendment. In each of those cases, there was insufficient relationship between the challenged actions of the entities involved and their monopoly status. There is no indication of any greater connection here.Petitioner next urges that state action is present because respondent provides an essential public service required to be supplied on a reasonably continuous basis by Pa.Stat.Ann., Tit. 66, § 1171 (1959), and hence performs a "public function." We have, of course, found state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State. See, e.g., Nixon v. Condon, 286 U. S. 73 (1932) (election); Terry v. Adams, 345 U. S. 461 (1953) (election); Marsh v. Alabama, 326 U. S. 501 (1946) (company town); Evans v. Newton, 382 U. S. 296 (1966) (municipal park). If Page 419 U. S. 353 we were dealing with the exercise by Metropolitan of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain, our case would be quite a different one. But while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State. The Pennsylvania courts have rejected the contention that the furnishing of utility services is either a state function or a municipal duty. Girard Life Insurance Co. v. City of Philadelphia, 88 Pa. 393 (1879); Baily v. Philadelphia, 184 Pa. 594, 39 A. 494 (1898).Perhaps in recognition of the fact that the supplying of utility service is not traditionally the exclusive prerogative of the State, petitioner invites the expansion of the doctrine of this limited line of cases into a broad principle that all businesses "affected with the public interest" are state actors in all their actions.We decline the invitation for reasons stated long ago in Nebbia v. New York, 291 U. S. 502 (1934), in the course of rejecting a substantive due process attack on state legislation:"It is clear that there is no closed class or category of businesses affected with a public interest. . . . The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions 'affected with a public interest,' and 'clothed with a public use,' have been brought forward as the criteria . . . , it has been admitted that they are not susceptible of definition, and form an unsatisfactory test. . . ."Id. at 291 U. S. 536. See, e.g., Tyson & Brother v. Banton, 273 U. S. 418, 273 U. S. 451 (1927) (Stone, J., dissenting). Page 419 U. S. 354Doctors, optometrists, lawyers, Metropolitan, and Nebbia's upstate New York grocery selling a quart of milk are all in regulated businesses, providing arguably essential goods and services, "affected with a public interest." We do not believe that such a status converts their every action, absent more, into that of the State. [Footnote 9] We also reject the notion that Metropolitan's termination is state action because the State "has specifically authorized and approved" the termination practice. In the instant case, Metropolitan filed with the Public Utility Commission a general tariff -- a provision of which states Metropolitan's right to terminate service for nonpayment. [Footnote 10] This provision has appeared in Metropolitan's previously filed tariffs for many years, and has never been the subject of a hearing or other scrutiny by the Commission. [Footnote 11] Although the Commission did hold Page 419 U. S. 355 hearings on portions of Metropolitan's general tariff relating to a general rate increase, it never even considered the reinsertion of this provision in the newly filed general tariff. [Footnote 12] The provision became effective 60 days after filing when not disapproved by the Commission. [Footnote 13]As a threshold matter, it is less than clear under state law that Metropolitan was even required to file this provision as part of its tariff or that the Commission would have had the power to disapprove it. [Footnote 14] The District Court observed that the sole connection of the Commission with this regulation was Metropolitan's simple notice filing with the Commission and the lack of any Commission action to prohibit it. [Footnote 15] Page 419 U. S. 356The case most heavily relied on by petitioner is Public Utilities Comm'n v. Pollak, supra. There, the Court dealt with the contention that Capital Transit's installation of a piped music system on its buses violated the First Amendment rights of the bus riders. It is not entirely clear whether the Court alternatively held that Capital Transit's action was action of the "State" for First Amendment purposes or whether it merely assumed, arguendo, that it was, and went on to resolve the First Amendment question adversely to the bus riders. [Footnote 16] In either event, the nature of the state involvement there was quite different than it is here. The District of Columbia Public Utilities Commission, on its own motion, commenced an investigation of the effects of the piped music and, after a full hearing, concluded not only that Capital Transit's practices were "not inconsistent with public convenience, comfort, and safety," 81 P.U.R.(N.S.) 122, 126 (1950), but also that the Page 419 U. S. 357 practice "in fact, through the creation of better will among passengers, . . . tends to improve the conditions under which the public ride." Ibid. Here, on the other hand, there was no such imprimatur placed on the practice of Metropolitan about which petitioner complains. The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body. Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into "state action." At most, the Commission's failure to overturn this practice amounted to no more than a determination that a Pennsylvania utility was authorized to employ such a practice if it so desired. Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State, [Footnote 17] does not make its action in doing so "state action" for purposes of the Fourteenth Amendment.We also find absent in the instant case the symbiotic relationship presented in Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). There, where a private lessee, who practiced racial discrimination, leased space for a restaurant from a state parking authority in a publicly owned building, the Court held that the State had so far insinuated itself into a position of interdependence with the restaurant that it was a joint participant in Page 419 U. S. 358 the enterprise. Id. at 365 U. S. 725. We cautioned, however, that, while "a multitude of relationships might appear to some to fall within the Amendment's embrace," differences in circumstances beget differences in law, limiting the actual holding to lessees of public property. Id. at 365 U. S. 726.Metropolitan is a privately owned corporation, and it does not lease its facilities from the State of Pennsylvania. It alone is responsible for the provision of power to its customers. In common with all corporations of the State, it pays taxes to the State, and it is subject to a form of extensive regulation by the State in a way that most other business enterprises are not. But this was likewise true of the appellant club in Moose Lodge No. 107 v. Irvis, supra, where we said:"However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club's enterprise."407 U.S. at 407 U. S. 176-177.All of petitioner's arguments taken together show no more than that Metropolitan was a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory, and that it elected to terminate service to petitioner in a manner which the Pennsylvania Public Utility Commission found permissible under state law. Under our decision, this is not sufficient to connect the State of Pennsylvania with respondent's action so as to make the latter's conduct attributable to the State for purposes of the Fourteenth Amendment.We conclude that the State of Pennsylvania is not sufficiently connected with respondent's action in terminating petitioner's service so as to make respondent's Page 419 U. S. 359 conduct in so doing attributable to the State for purposes of the Fourteenth Amendment. We therefore have no occasion to decide whether petitioner's claim to continued service was "property" for purposes of that Amendment, or whether "due process of law" would require a State taking similar action to accord petitioner the procedural rights for which she contends. The judgment of the Court of Appeals for the Third Circuit is thereforeAffirmed

U.S. Supreme CourtJackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)Jackson v. Metropolitan Edison Co.No. 73-5845Argued October 15, 1974Decided December 23, 1974419 U.S. 345SyllabusPetitioner brought suit against respondent, a privately owned and operated utility corporation which holds a certificate of public convenience issued by the Pennsylvania Utility Commission, seeking damages and injunctive relief under 42 U.S.C. § 1983 for termination of her electric service allegedly before she had been afforded notice, a hearing, and an opportunity to pay any amounts found due. Petitioner claimed that, under state law she was entitled to reasonably continuous electric service, and that respondent's termination for alleged nonpayment, permitted by a provision of its general tariff filed with the Commission, was state action depriving petitioner of her property without due process of law and giving rise to a cause of action under § 1983. The Court of Appeals affirmed the District Court's dismissal of petitioner's complaint.Held: Pennsylvania is not sufficiently connected with the challenged termination to make respondent's conduct attributable to the State for purposes of the Fourteenth Amendment, petitioner having shown no more than that respondent was a heavily regulated private utility with a partial monopoly and that it elected to terminate service in a manner that the Commission found permissible under state law. Cf. Moose Lodge No. 107 v. Irvis, 407 U. S. 163. Public Utilities Comm'n v. Pollak, 343 U. S. 451; Burton v. Wilmington Parking Authority, 365 U. S. 715, distinguished. Pp. 419 U. S. 349-359.483 F.2d 754, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., post, p. 419 U. S. 359, BRENNAN, J., post, p. 419 U. S. 364, and MARSHALL, J., post, p. 419 U. S. 365, filed dissenting opinions. Page 419 U. S. 346

1983_82-827

JUSTICE WHITE delivered the opinion of the Court.In this case, respondent Murphy, who was on probation, made incriminating admissions during a meeting with his probation officer. The issue before us is whether the Fifth and Fourteenth Amendments prohibit the introduction into evidence of the admissions in Murphy's subsequent criminal prosecution.IIn 1974, Marshall Murphy was twice questioned by Minneapolis police concerning the rape and murder of a teenage girl. No charges were then brought. In 1980, in connection with a prosecution for criminal sexual conduct arising out of an unrelated incident, Murphy pleaded guilty to a reduced charge of false imprisonment. He was sentenced to a prison term of 16 months, which was suspended, and three years' probation. The terms of Murphy's probation required, among other things, that he participate in a treatment program for sexual offenders at Alpha House, report to his probation officer as directed, and be truthful with the probation officer "in all matters." Failure to comply with these conditions, Murphy was informed, could result in his return to the sentencing court for a probation revocation hearing. App. to Pet. for Cert. C-33 - C-35.Murphy met with his probation officer at her office approximately once a month, and his probation continued without incident until July, 1981, when the officer learned that he had abandoned the treatment program. The probation officer Page 465 U. S. 423 then wrote to Murphy and informed him that failure to set up a meeting would "result in an immediate request for a warrant." Id. at C-35. At a meeting in late July, the officer agreed not to seek revocation of probation for nonparticipation in the treatment program, since Murphy was employed and doing well in other areas.In September, 1981, an Alpha House counselor informed the probation officer that, during the course of treatment, Murphy had admitted to a rape and murder in 1974. After discussions with her superior, the officer determined that the police should have this information. [Footnote 1] She then wrote to Murphy and asked him to contact her to discuss a treatment plan for the remainder of his probationary period. [Footnote 2] Although she did not contact the police before the meeting, the probation officer knew in advance that she would report any incriminating statements.Upon receipt of the letter, Murphy arranged to meet with his probation officer in her office on September 28, 1981. The officer opened the meeting by telling Murphy about the information she had received from the Alpha House counselor Page 465 U. S. 424 and expressing her belief that this information evinced his continued need for treatment. Murphy became angry about what he considered to be a breach of his confidences and stated that he "felt like calling a lawyer." [Footnote 3] The probation officer replied that Murphy would have to deal with that problem outside the office; for the moment, their primary concern was the relationship between the crimes that Murphy had admitted to the Alpha House counselor and the incident that led to his conviction for false imprisonment.During the course of the meeting, Murphy denied the false imprisonment charge, admitted that he had committed the rape and murder, and attempted to persuade the probation officer that further treatment was unnecessary because several extenuating circumstances explained the prior crimes. At the conclusion of the meeting, the officer told Murphy that she had a duty to relay the information to the authorities and encouraged him to turn himself in. Murphy then left the office. Two days later, Murphy called his probation officer and told her that he had been advised by counsel not to surrender himself to the police. The officer then procured the issuance of an arrest and detention order from the judge who had sentenced Murphy on the false imprisonment charge. Page 465 U. S. 425 On October 29, 1981, a state grand jury returned an indictment charging Murphy with first-degree murder.Murphy sought to suppress testimony concerning his confession on the ground that it was obtained in violation of the Fifth and Fourteenth Amendments. The trial court found that he was not "in custody" at the time of the statement and that the confession was neither compelled nor involuntary, despite the absence of warnings similar to those required by Miranda v. Arizona, 384 U. S. 436 (1966). The Minnesota Supreme Court reversed on federal constitutional grounds. 324 N.W.2d 340 (1982). Although recognizing that the Fifth Amendment privilege generally is not self-executing, it concluded that, notwithstanding the lack of custody in the usual sense, Murphy's failure to claim the privilege when he was questioned was not fatal to his claim"[b]ecause of the compulsory nature of the meeting, because [Murphy] was under court order to respond truthfully to his agent's questions, and because the agent had substantial reason to believe that [Murphy's] answers were likely to be incriminating."Id. at 344. In the court's view,"the agent should have warned [Murphy] of his privilege against compelled self-incrimination before she questioned him, and . . . her failure to do so, when she had already decided to report his answers to the police, bars use of [Murphy's] confession at this trial."Ibid.We granted certiorari to resolve a conflict among state and federal courts concerning whether a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding. 459 U.S. 1145 (1983). [Footnote 4] We now reverse. Page 465 U. S. 426IIThe Fifth Amendment, in relevant part, provides that no person "shall be compelled in any criminal case to be a witness against himself." It has long been held that this prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also"privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 77 (1973). In all such proceedings,"a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution."Id. at 414 U. S. 78 (citations omitted). A defendant does not lose this protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled, they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. See Baxter v. Palmigiano, 425 U. S. 308, 425 U. S. 316 (1976). The issue in this case is whether the Fifth Amendment right that Murphy enjoyed would be violated by the admission into evidence at his trial for another crime of the prior statements made by him to his probation officer. Page 465 U. S. 427AWe note first that the general obligation to appear and answer questions truthfully did not, in itself, convert Murphy's otherwise voluntary statements into compelled ones. In that respect, Murphy was in no better position than the ordinary witness at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and obligated to answer on the pain of contempt, unless he invokes the privilege and shows that he faces a realistic threat of self-incrimination. The answers of such a witness to questions put to him are not compelled within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege. This much is reasonably clear from our cases.As this Court has long acknowledged:"The [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment."United States v. Monia, 317 U. S. 424, 317 U. S. 427 (1943) (footnote omitted). This principle has been applied in cases involving a variety of criminal and noncriminal investigations. See, e.g., United States v. Kordel, 397 U. S. 1, 397 U. S. 7-10 (1970); Rogers v. United States, 340 U. S. 367, 340 U. S. 370-371 (1951); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 273 U. S. 112-113 (1927). These cases, taken together,"stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself."Garner v. United States, 424 U. S. 648, 424 U. S. 654 (1976) (footnote omitted). Witnesses who failed to claim the privilege were once said to have "waived" it, but we have recently abandoned this "vague term," Green v. United States, Page 465 U. S. 428 355 U. S. 184, 355 U. S. 191 (1957), and "made clear that an individual may lose the benefit of the privilege without making a knowing and intelligent waiver." Garner v. United States, supra, at 424 U. S. 654, n. 9.Although we have sometimes suggested in dicta that the usual rule might give way in situations where the government has "substantial reason to believe that the requested disclosures are likely to be incriminating," Roberts v. United States, 445 U. S. 552, 445 U. S. 559 (1980), we have never adopted the view that a witness must "put the Government on notice by formally availing himself of the privilege" only when he alone "is reasonably aware of the incriminating tendency of the questions." Id. at 562, n.* (BRENNAN, J., concurring). It has long been recognized that "[t]he Constitution does not forbid the asking of criminative questions," United States v. Monia, supra, at 317 U. S. 433 (Frankfurter, J., dissenting), and nothing in our prior cases suggests that the incriminating nature of a question, by itself, excuses a timely assertion of the privilege. See, e.g., United States v. Mandujano, 425 U. S. 564, 425 U. S. 574-575 (1976) (plurality opinion). If a witness -- even one under a general compulsion to testify -- answers a question that both he and the government should reasonably expect to incriminate him, the Court need ask only whether the particular disclosure was "compelled" within the meaning of the Fifth Amendment.United States v. Kordel, supra, perhaps the first case squarely to hold that a witness under compulsion to make disclosures must assert the privilege in a timely manner, is illustrative. In answering interrogatories submitted by the Government in a civil case against a corporation, a corporate officer who had been notified of contemplated criminal action against him supplied evidence and leads helpful in securing his indictment and conviction. Although the relationship between the civil and criminal actions was clear and "[w]ithout question [the officer] could have invoked his Fifth Amendment privilege," id. at 397 U. S. 7, he did not do so. The Court concluded without hesitation that"[h]is failure at any time to Page 465 U. S. 429 assert the constitutional privilege leaves him in no position to complain now that he was compelled to give testimony against himself."Id. at 397 U. S. 10 (footnote omitted).BThus it is that a witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the privilege, rather than answer, if he desires not to incriminate himself. If he asserts the privilege, he"may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him"in a subsequent criminal proceeding. Maness v. Meyers, 419 U. S. 449, 419 U. S. 473 (1976) (WHITE, J., concurring in result) (emphasis in original). But if he chooses to answer, his choice is considered to be voluntary, since he was free to claim the privilege and would suffer no penalty as the result of his decision to do so. As the Minnesota Supreme Court recognized, application of this general rule is inappropriate in certain well-defined situations. In each of those situations, however, some identifiable factor "was held to deny the individual a free choice to admit, to deny, or to refuse to answer.'" Garner v. United States, supra, at 424 U. S. 657 (quoting Lisenba v. California, 314 U. S. 219, 314 U. S. 241 (1941)). Because we conclude that no such factor was present here, we hold that the Minnesota Supreme Court erred in excluding the probation officer's testimony.1A well-known exception to the general rule addresses the problem of confessions obtained from suspects in police custody. [Footnote 5] Not only is custodial interrogation ordinarily conducted Page 465 U. S. 430 by officers who are "acutely aware of the potentially incriminatory nature of the disclosures sought," Garner v. United States, 424 U.S. at 424 U. S. 657, but also the custodial setting is thought to contain"inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."Miranda v. Arizona, 384 U.S. at 384 U. S. 467. See Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 246-247 (1973). To dissipate "the overbearing compulsion . . . caused by isolation of a suspect in police custody," United States v. Washington, 431 U. S. 181, 431 U. S. 187, n. 5 (1977), the Miranda Court required the exclusion of incriminating statements obtained during custodial interrogation unless the suspect fails to claim the Fifth Amendment privilege after being suitably warned of his right to remain silent and of the consequences of his failure to assert it. 384 U.S. at 384 U. S. 467-469, 384 U. S. 475-477. We have consistently held, however, that this extraordinary safeguard "does not apply outside the context of the inherently coercive custodial interrogations for which it was designed." Roberts v. United States, supra, at 445 U. S. 560.The Minnesota Supreme Court recognized that Murphy was not "in custody" when he made his incriminating admissions. He was, to be sure, subject to a number of restrictive conditions governing various aspects of his life, and he would be regarded as "in custody" for purposes of federal habeas corpus. See Jones v. Cunningham, 371 U. S. 236, 371 U. S. 241-243 (1963). But custody in that context has been defined broadly to effectuate the purposes of the writ, id. at 371 U. S. 243; Hensley v. Municipal Court, 411 U. S. 345, 411 U. S. 349-351 (1973), and custody for Miranda purposes has been more narrowly circumscribed. See Oregon v. Mathiason, 429 U. S. 492 (1977) (per curiam). Under the narrower standard appropriate in the Miranda context, it is clear that Murphy was not "in custody" for purposes of receiving Miranda protection, since there was no "formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California Page 465 U. S. 431 v. Beheler, 463 U. S. 1121, 463 U. S. 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, supra, at 429 U. S. 495).Notwithstanding the inapplicability of Miranda, the Minnesota Supreme Court held that the probation officer's failure to inform Murphy of the Fifth Amendment privilege barred use of his confession at trial. Four factors have been advanced in support of this conclusion, but we find them, alone or in combination, insufficient to excuse Murphy's failure to claim the privilege in a timely manner.First, the probation officer could compel Murphy's attendance and truthful answers. The Minnesota Supreme Court failed to explain how this transformed a routine interview into an inherently coercive setting. In our view, this factor subjected Murphy to less intimidating pressure than is imposed on grand jury witnesses, who are sworn to tell the truth and placed in a setting conducive to truth-telling. Although warnings in both contexts might serve to dissipate"any possible coercion or unfairness resulting from a witness' misimpression that he must answer truthfully even questions with incriminat[ing] aspects,"United States v. Washington, 431 U.S. at 431 U. S. 188, we have never held that they must be given to grand jury witnesses, id. at 431 U. S. 186, and we decline to require them here since the totality of the circumstances is not such as to overbear a probationer's free will. See Rogers v. Richmond, 365 U. S. 534, 365 U. S. 544 (1961).Second, the probation officer consciously sought incriminating evidence. We have already explained that this factor does not give rise to a self-executing privilege, supra, at 465 U.S. 428, and we pause here only to emphasize that police officers questioning persons suspected of crimes often consciously seek incriminating statements. The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in noncustodial settings, Beckwith v. United States, 425 U. S. 341 (1976), and the probation officer's knowledge and intent have no bearing on the outcome of this case. Page 465 U. S. 432Third, Murphy did not expect questions about prior criminal conduct, and could not seek counsel before attending the meeting. But the nature of probation is such that probationers should expect to be questioned on a wide range of topics relating to their past criminality. Moreover, the probation officer's letter, which suggested a need to discuss treatment from which Murphy had already been excused, would have led a reasonable probationer to conclude that new information had come to her attention. In any event, Murphy's situation was in this regard indistinguishable from that facing suspects who are questioned in noncustodial settings and grand jury witnesses who are unaware of the scope of an investigation or that they are considered potential defendants. See United States v. Washington, supra, at 431 U. S. 188-189; Beckwith v. United States, supra, at 425 U. S. 346-348.Fourth, there were no observers to guard against abuse or trickery. Again, this often will be true when a suspect is subjected to noncustodial interrogation, where no warnings are required. Murphy does not allege that the probation officer was not legitimately concerned with the need for further treatment, and we cannot conclude that her actions would have led a reasonable probationer to believe that his statements to her would remain confidential. A probationer cannot pretend ignorance of the fact that his probation officer "is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers." Fare v. Michael C., 442 U. S. 707, 442 U. S. 720 (1979). See Cabell v. Chavez-Salido, 454 U. S. 432, 454 U. S. 447 (1982). Absent some express or implied promise to the contrary, he may also be charged with knowledge that"the probation officer is duty bound to report wrongdoing by the [probationer] when it comes to his attention, even if by communication from the [probationer] himself."Fare v. Michael C., supra, at 442 U. S. 720. The fact that Murphy apparently expressed no surprise on being informed that his statements would be made available to the police, moreover, strongly suggests that he was not misled by any expectation that his statements would remain confidential. Page 465 U. S. 433 See App. to Pet. for Cert. C-21 (testimony of Mara Widseth); id. at C-28 (testimony of Marshall Murphy).Even a cursory comparison of custodial interrogation and probation interviews reveals the inaptness of the Minnesota Supreme Court's analogy to Miranda. Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers' will and to confess. Miranda v. Arizona, 384 U.S. at 384 U. S. 456-457. It is unlikely that a probation interview, arranged by appointment at a mutually convenient time, would give rise to a similar impression. Moreover, custodial arrest thrusts an individual into "an unfamiliar atmosphere" or "an interrogation environment . . . created for no purpose other than to subjugate the individual to the will of his examiner." Id. at 384 U. S. 457. Many of the psychological ploys discussed in Miranda capitalize on the suspect's unfamiliarity with the officers and the environment. Murphy's regular meetings with his probation officer should have served to familiarize him with her and her office and to insulate him from psychological intimidation that might overbear his desire to claim the privilege. Finally, the coercion inherent in custodial interrogation derives in large measure from an interrogator's insinuations that the interrogation will continue until a confession is obtained. Id. at 384 U. S. 468. Since Murphy was not physically restrained, and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape a persistent custodial interrogator. [Footnote 6] Page 465 U. S. 434We conclude, therefore, that Murphy cannot claim the benefit of the first exception to the general rule that the Fifth Amendment privilege is not self-executing.2The general rule that the privilege must be claimed when self-incrimination is threatened has also been deemed inapplicable in cases where the assertion of the privilege is penalized, so as to "foreclos[e] a free choice to remain silent, and . . . compe[l] . . . incriminating testimony." Garner v. United States, 424 U.S. at 424 U. S. 661. Because revocation of his probation was threatened if he was untruthful with his probation officer, Murphy argues that he was compelled to make incriminating disclosures instead of claiming the privilege. Although this contention is not without force, we find it unpersuasive on close examination.In each of the so-called "penalty" cases, the State not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions "capable of forcing the self-incrimination which the Amendment forbids." Lefkowitz v. Cunningham, 431 U. S. 801, 431 U. S. 806 (1977). In most of the cases, the attempt to override the witnesses' privilege proved unsuccessful, and the Court ruled that the State could not constitutionally make good on its prior threat. Lefkowitz v. Turley, 414 U.S. at 414 U. S. 79-84; Sanitation Men v. Commissioner of Sanitation, 392 U. S. 280, 392 U. S. 283-284 (1968); Gardner v. Broderick, 392 U. S. 273, 392 U. S. 278-279 (1968). These cases make clear that"a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself."Lefkowitz v. Cunningham, supra, at 431 U. S. 805. Occasionally, however, an individual succumbed to the pressure placed upon him, failed to assert the privilege, and disclosed incriminating information, which the State later sought to use against him in a criminal prosecution. Garrity v. New Jersey, 385 U. S. 493 (1967), was such a case, and the Court Page 465 U. S. 435 held that an individual threatened with discharge from employment for exercising the privilege had not waived it by responding to questions rather than standing on his right to remain silent. Id. at 385 U. S. 498-499.The threat of punishment for reliance on the privilege distinguishes cases of this sort from the ordinary case in which a witness is merely required to appear and give testimony. A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that, if the State, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution. [Footnote 7] Page 465 U. S. 436Even so, we must inquire whether Murphy's probation conditions merely required him to appear and give testimony about matters relevant to his probationary status, or whether they went further and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Because we conclude that Minnesota did not attempt to take the extra, impermissible step, we hold that Murphy's Fifth Amendment privilege was not self-executing.As we have already indicated, Murphy was informed that he was required to be truthful with his probation officer in all matters, and that failure to do so could result in revocation of probation. The opinion of the Minnesota Supreme Court made clear that this was indeed the case, but its conclusion that the probation officer's failure to give Murphy adequate warnings barred the use of his incriminating statements in the criminal trial did not rest on the ground that a refusal to furnish incriminating information would have justified revocation of probation. Although the court recognized that imposing a penalty for a valid exercise of the Fifth Amendment Page 465 U. S. 437 privilege could impermissibly foreclose a free choice to remain silent, 324 N.W.2d at 342-343, it did not purport to find that Minnesota's probation revocation statute had such an effect. The court relied instead on the fact that Murphy was under legal compulsion to attend the meeting and to answer truthfully the questions of a probation officer who anticipated incriminating answers. Id. at 344. Such compulsion, however, is indistinguishable from that felt by any witness who is required to appear and give testimony, and, as we have already made clear, it is insufficient to excuse Murphy's failure to exercise the privilege in a timely manner.The state court did not attempt to define the precise contours of Murphy's obligation to respond to questions. On its face, Murphy's probation condition proscribed only false statements; it said nothing about his freedom to decline to answer particular questions, and certainly contained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege with respect to further criminal prosecution. "At this point in our history, virtually every schoolboy is familiar with the concept, if not the language, of the [Fifth Amendment]." Michigan v. Tucker, 417 U. S. 433, 417 U. S. 439 (1974). Yet Murphy, although he had a right to do so, see State v. Austin, 295 N.W.2d 246 (Minn.1980), did not seek clarification of the condition. Without the benefit of an authoritative state court construction of the condition, we are hesitant to read into the truthfulness requirement an additional obligation that Murphy refrain from raising legitimate objections to furnishing information that might lead to his conviction for another crime.Whether we employ a subjective or an objective test, there is no reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege against self-incrimination. There is no direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent. Unlike the police officers in Garrity v. New Jersey, 385 U. S. 493 Page 465 U. S. 438 (1967), Murphy was not expressly informed during the crucial meeting with his probation officer that an assertion of the privilege would result in the imposition of a penalty. And the fact that Murphy apparently felt no compunction about adamantly denying the false imprisonment charge on which he had been convicted before admitting to the rape and murder strongly suggests that the "threat" of revocation did not overwhelm his resistance.If Murphy did harbor a belief that his probation might be revoked for exercising the Fifth Amendment privilege, that belief would not have been reasonable. Our decisions have made clear that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege. It is not surprising, then, that neither the state court nor any state officer has suggested otherwise. Indeed, in its brief in this Court, the State submits that it would not, and legally could not, revoke probation for refusing to answer questions calling for information that would incriminate in separate criminal proceedings. Brief for Petitioner 36-39, and n. 7. See also Tr. of Oral Arg. 7-8, 10-14.Minnesota's revocation statute, which was accurately summarized in Murphy's notice of probation, see App. to Pet. for Cert. C-33 - C-34, authorizes revocation"[w]hen it appears that the defendant has violated any of the conditions of his probation or has otherwise been guilty of misconduct which warrants the imposing or execution of sentence."Minn.Stat. § 609.14 (1982). Revocation is not automatic under this provision. Even if the probation officer desires revocation, a probationer must be afforded a hearing, Pearson v. State, 308 Minn. 287, 289-290, 241 N.W.2d 490, 492-493 (1976); State ex rel. Halverson v. Young, 278 Minn. 381, 386-387, 154 N.W.2d 699, 702-703 (1967), and the court must find that he violated a specific condition, that the violation was intentional or inexcusable, and that the need for confinement outweighs the policies favoring probation. State v. Austin, Page 465 U. S. 439 supra, at 250. We have not been advised of any case in which Minnesota has attempted to revoke probation merely because a probationer refused to make nonimmunized disclosures concerning his own criminal conduct; and, in light of our decisions proscribing threats of penalties for the exercise of Fifth Amendment rights, Murphy could not reasonably have feared that the assertion of the privilege would have led to revocation.Accordingly, we cannot conclude that Murphy was deterred from claiming the privilege by a reasonably perceived threat of revocation.3A third exception to the general requirement of a timely assertion of the Fifth Amendment privilege, closely related to the penalty exception, has been developed in the context of the federal occupational and excise taxes on gamblers. In recognition of the pervasive criminal regulation of gambling activities and the fact that claiming the privilege in lieu of filing a return would tend to incriminate, the Court has held that the privilege may be exercised by failing to file. Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). See also Mackey v. United States, 401 U. S. 667 (1971)."[M]aking a claim of privilege when the disclosures were requested, i.e., when the returns were due, would have identified the claimant as a gambler. The Court therefore forgave the usual requirement that the claim of privilege be presented for evaluation in favor of a 'claim' by silence. . . . If a particular gambler would not have incriminated himself by filing the tax returns, the privilege would not justify a failure to file."Garner v. United States, 424 U.S. at 424 U. S. 658-659, n. 11.But, while a taxpayer who claims the privilege instead of filing gambling tax returns necessarily identifies himself as a gambler, a probationer confronted with incriminating questions Page 465 U. S. 440 ordinarily will have no problem effectively claiming the privilege at the time disclosures are requested. There exists, therefore, no reason to forgive the requirement that the claim be presented for evaluation in a timely manner. [Footnote 8]IIIWe conclude, in summary, that since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations. Because he had not been compelled to incriminate himself, Murphy could not successfully invoke the privilege to prevent the information he volunteered to his probation officer from being used against him in a criminal prosecution.The judgment of the Minnesota Supreme Court isReversed

U.S. Supreme CourtMinnesota v. Murphy, 465 U.S. 420 (1984)Minnesota v. MurphyNo. 82-827Argued October 12, 1983Decided February 22, 1984465 U.S. 420SyllabusIn 1980, respondent pleaded guilty to a sex-related charge in a Minnesota court, and was given a suspended prison sentence and placed on probation. The terms of his probation required him to participate in a treatment program for sexual offenders, to report to his probation officer periodically, and to be truthful with the officer "in all matters." During the course of a meeting with his probation officer, who had previously received information from a treatment counselor that respondent had admitted to a 1974 rape and murder, respondent, upon questioning, admitted that he had committed the rape and murder. After being indicted for first-degree murder, respondent sought to suppress the confession made to the probation officer on the ground that it was obtained in violation of the Fifth and Fourteenth Amendments. The Minnesota trial court found that respondent was not "in custody" at the time of the confession, and that the confession was neither compelled nor involuntary despite the absence of Miranda warnings. The Minnesota Supreme Court reversed, holding that, notwithstanding the lack of custody in the usual sense, respondent's failure to claim the Fifth Amendment privilege against self-incrimination when he was questioned was not fatal to his claim, because of the nature of his meeting with the probation officer, because he was under court order to respond truthfully, and because the probation officer had substantial reason to believe that respondent's answers were likely to be incriminating.Held: The Fifth and Fourteenth Amendments did not prohibit the introduction into evidence of respondent's admissions to the probation officer in respondent's subsequent murder prosecution. Pp. 426-440.(a) The general obligation to appear before his probation officer and answer questions truthfully did not, in itself, convert respondent's otherwise voluntary statements into compelled ones. Pp. 465 U. S. 427-429.(b) A witness confronted with questions that the government should reasonably expect to elicit incriminating evidence ordinarily must assert the Fifth Amendment privilege, rather than answer if he desires not to incriminate himself. If he chooses to answer rather than to assert the privilege, his choice is considered to be voluntary, since he was free to claim the privilege and would suffer no penalty as a result of his decision to do so. P. 465 U. S. 429.(c) Respondent cannot claim the benefit of the "in custody" exception to the general rule that the Fifth Amendment privilege is not self-executing. Page 465 U. S. 421 It is clear that respondent was not "in custody" for purposes of receiving Miranda protection, since there was no formal arrest or restraint on freedom of movement of the degree associated with formal arrest. The factors that the probation officer could compel respondent's attendance and truthful answers and consciously sought incriminating evidence, that respondent did not expect questions about prior criminal conduct and could not seek counsel before attending the meeting, and that there were no observers to guard against abuse or trickery, neither alone nor in combination, are sufficient to excuse respondent's failure to claim the privilege in a timely manner. Pp. 465 U. S. 429-434.(d) Nor was respondent deterred from claiming the privilege against self-incrimination by a reasonably perceived threat of revocation of his probation so as to render the privilege self-executing. The legal compulsion to attend the meeting with the probation officer and to answer truthfully the questions of the officer who anticipated incriminating answers is indistinguishable from that felt by any witness who is required to appear and give testimony, and is insufficient to excuse respondent's failure to exercise the privilege in a timely manner. Whether a subjective or objective test is applied, there is no reasonable basis for concluding that Minnesota attempted to attach an impermissible penalty to the exercise of the privilege. Pp. 465 U. S. 434-439.(e) As opposed to the cases involving federal taxes on gamblers, where the Fifth Amendment privilege may be exercised by failing to file a tax return, since, if the taxpayer claimed the privilege instead of filing a return, he necessarily identifies himself as a gambler, a probationer confronted with incriminating questions ordinarily would have no problem effectively claiming the privilege at the time the disclosures are requested. There is therefore no reason to forgive the requirement that the privilege claim be presented for evaluation in a timely manner. Pp. 465 U. S. 439-440.324 N.W.2d 340, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS, J., joined and in all but Part II-A of which BRENNAN, J., joined, post, p. 465 U. S. 441. Page 465 U. S. 422

1979_79-105

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.Federal Rule of Civil Procedure 54(b) allows a district court dealing with multiple claims or multiple parties to direct the entry of final judgment as to fewer than all of the claims or parties; to do so, the court must make an express determination that there is no just reason for delay. We granted certiorari in order to examine the use of this procedural device. 444 U.S. 823 (1979).IFrom 1968 to 1972, respondent General Electric Co. entered into a series of 21 contracts with petitioner Curtiss-Wright Corp. for the manufacture of components designed for use in nuclear powered naval vessels. These contracts had a total value of $215 million.In 1976, Curtiss-Wright brought a diversity action in the United States District Court for the District of New Jersey, seeking damages and reformation with regard to the 21 contracts. The complaint asserted claims based on alleged fraud, Page 446 U. S. 4 misrepresentation, and breach of contract by General Electric. It also sought $19 million from General Electric on the outstanding balance due on the contracts already performed.General Electric counterclaimed for $1.9 million in costs allegedly incurred as the result of "extraordinary efforts" provided to Curtiss-Wright during performance of the contracts which enabled Curtiss-Wright to avoid a contract default. General Electric also sought, by way of counterclaim, to recover $52 million by which Curtiss-Wright was allegedly unjustly enriched as a result of these "extraordinary efforts."The facts underlying most of these claims and counterclaims are in dispute. As to Curtiss-Wright's claims for the $19 million balance due, however, the sole dispute concerns the application of a release clause contained in each of the 21 agreements, which states that"Seller . . . agree[s] as a condition precedent to final payment, that the Buyer and the Government . . . are released from all liabilities, obligations and claims arising under or by virtue of this order."App. 103a. When Curtiss-Wright moved for summary judgment on the balance due, General Electric contended that, so long as Curtiss-Wright's other claims remained pending, this provision constituted a bar to recovery of the undisputed balance.The District Court rejected this contention and granted summary judgment for Curtiss-Wright on this otherwise undisputed claim. Applying New York law by which the parties had agreed to be bound, the District Court held that Curtiss-Wright was entitled to payment of the balance due notwithstanding the release clause. The court also ruled that Curtiss-Wright was entitled to prejudgment interest at the New York statutory rate of 6 per annum.Curtiss-Wright then moved for a certification of the District Court's orders as final judgments under Federal Rule of Civil Procedure 54(b), [Footnote 1] which provides:"When more than one claim for relief is presented in an Page 446 U. S. 5 action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."The court expressly directed entry of final judgment for Curtiss-Wright, and made the determination that there was "no just reason for delay" pursuant to Rule 54(b).The District Court also provided a written statement of reasons supporting its decision to certify the judgment as final. It acknowledged that Rule 54(b) certification was not to be granted as a matter of course, and that this remedy should be reserved for the infrequent harsh case because of the overload in appellate courts which would otherwise result from appeals of an interlocutory nature. The essential inquiry was stated to be"whether, after balancing the competing factors, finality of judgment should be ordered to advance the interests of sound judicial administration and justice to the litigants."The District Court then went on to identify the relevant factors in the case before it. It found that certification would not result in unnecessary appellate review; that the claims Page 446 U. S. 6 finally adjudicated were separate, distinct, and independent of any of the other claims or counterclaims involved; that review of these adjudicated claims would not be mooted by any future developments in the case; and that the nature of the claims was such that no appellate court would have to decide the same issues more than once, even if there were subsequent appeals.Turning to considerations of justice to the litigants, the District Court found that Curtiss-Wright would suffer severe daily financial loss from nonpayment of the $19 million judgment, because current interest rates were higher than the statutory prejudgment rate, a situation compounded by the large amount of money involved. The court observed that the complex nature of the remaining claims could, without certification, mean a delay that "would span many months, if not years."The court found that solvency of the parties was not a significant factor, since each appeared to be financially sound. Although the presence of General Electric's counterclaims and the consequent possibility of a setoff recovery were factors which weighed against certification, the court, in balancing these factors, determined that they were outweighed by the other factors in the case. Accordingly, it granted Rule 54(b) certification. It also granted General Electric's motion for a stay without bond pending appeal.A divided panel of the United States Court of Appeals for the Third Circuit held that the case was controlled by its decision in Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (1975), where the court had stated:"In the absence of unusual or harsh circumstances, we believe that the presence of a counterclaim, which could result in a set-off against any amounts due and owing to the plaintiff, weighs heavily against the grant of 54(b) certification."Id. at 366 (footnote omitted). In Allis-Chalmers, the court defined unusual or harsh cir Page 446 U. S. 7 circumstances as those factors "involving considerations of solvency, economic duress, etc." Id. at 366, n. 14.In the Third Circuit's view, the question was which of the parties should have the benefit of the amount of the balance due pending final resolution of the litigation. The court held that Allis-Chalmers dictated"that the matter remain in status quo when nonfrivolous counterclaims are pending, and in the absence of unusual or harsh circumstances."597 F.2d 35, 36 (1970) (per curiam). The Court of Appeals acknowledged that Curtiss-Wright's inability to have use of the money from the judgment might seem harsh, but noted that the same could be said for General Electric if it were forced to pay Curtiss-Wright now, but later prevailed on its counterclaims. Ibid. .The Court of Appeals concluded that the District Court had abused its discretion by granting Rule 54(b) certification in this situation, and dismissed the case for want of an appealable order; it also directed the District Court to vacate its Rule 64(b) determination of finality. Curtiss-Wright's petition for rehearing and suggestion for rehearing en bane were denied. 599 F.2d 1259 (1979). Four judges dissented from that denial, observing that the case was in conflict with United Bank of Pueblo v. Hartford Accident & Indemnity Co., 529 F.2d 490 (CA10 1976). We reverse.IINearly a quarter of a century ago, in Sears, Roebuck & Co. v. Mackey, 351 U. S. 427 (1956), this Court outlined the steps to be followed in making determinations under Rule 54(b). A district court must first determine that it is dealing with a "final judgment." It must be a "judgment" in the sense that it is a decision upon a cognizable claim for relief, and it must be "final" in the sense that it is "an ultimate disposition of an individual claim entered in the course of a multiple claims action." 351 U.S. at 351 U. S. 436. Page 446 U. S. 8Once having found finality, the district court must go on to determine whether there is any just reason for delay. Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separate from the remaining unresolved claims. The function of the district court under the Rule is to act as a "dispatcher." Id. at 351 U. S. 435. It is left to the sound judicial discretion of the district court to determine the "appropriate time" when each final decision in a multiple claims action is ready for appeal. Ibid. This discretion is to be exercised "in the interest of sound judicial administration." Id. at 351 U. S. 437.Thus, in deciding whether there are no just reasons to delay the appeal of individual final judgments in a setting such as this, a district court must take into account judicial administrative interests, as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively "preserves the historic federal policy against piecemeal appeals." Id. at 351 U. S. 438. It was therefore proper for the District Judge here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once, even if there were subsequent appeals. [Footnote 2]Here the District Judge saw no sound reason to delay appellate resolution of the undisputed claims already adjudicated. The contrary conclusion of the Court of Appeals was strongly Page 446 U. S. 9 influenced by the existence of nonfrivolous counterclaims. The mere presence of such claims, however, does not render a Rule 54(b) certification inappropriate. If it did, Rule 54(b) would lose much of its utility. In Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U. S. 445 (1956), this Court explained that counterclaims, whether compulsory or permissive, present no special problems for Rule 54(b) determinations; counterclaims are not to be evaluated differently from other claims. 351 U.S. at 351 U. S. 452. Like other claims, their significance for Rule 54(b) purposes turns on their interrelationship with the claims on which certification is sought. Here, the District Judge determined that General Electric's counterclaims were severable from the claims which had been determined in terms of both the factual and the legal issues involved. The Court of Appeals did not conclude otherwise.What the Court of Appeals found objectionable about the District Judge's exercise of discretion was the assessment of the equities involved. The Court of Appeals concluded that the possibility of a setoff required that the status quo be maintained unless petitioner could show harsh or unusual circumstances; it held that such a showing had not been made in the District Court.This holding reflects a misinterpretation of the standard of review for Rule 54(b) certifications and a misperception of the appellate function in such cases. The Court of Appeals relied on a statement of the Advisory Committee on the Rules of Civil Procedure, and its error derives from reading a description in the commentary as a standard of construction. When Rule 54(b) was amended in 1946, the Notes of the Advisory Committee which accompanied the suggested amendment indicated that the entire lawsuit was generally the appropriate unit for appellate review,"and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule."28 U.S.C.App. p. 484; 5 F.R.D. 433, 473 (1946). Page 446 U. S. 10 However accurate it may be as a description of cases qualifying for Rule 54(b) treatment, the phrase "infrequent harsh case," in isolation, is neither workable nor entirely reliable as a benchmark for appellate review. There is no indication it was ever intended by the drafters to function as such.In Sears, the Court stated that the decision to certify was, with good reason, left to the sound judicial discretion of the district court. At the same time, the Court noted that, "[w]ith equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals." 351 U.S. at 351 U. S. 437 (emphasis added). The Court indicated that the standard against which a district court's exercise of discretion is to be judged is the "interest of sound judicial administration." Ibid. Admittedly this presents issues not always easily resolved, but the proper role of the court of appeals is not to reweigh the equities or reassess the facts, but to make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record.There are thus two aspects to the proper function of a reviewing court in Rule 54(b) cases. The court of appeals must, of course, scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that court is "the one most likely to be familiar with the case and with any justifiable reasons for delay." Sears, supra at 351 U. S. 437. The reviewing court should disturb the trial court's assessment of the equities only if it can say that the judge's conclusion was clearly unreasonable.Plainly, sound judicial administration does not require that Rule 54(b) requests be granted routinely. That is implicit in commending them to the sound discretion of a district court. Because this discretion "is, with good reason, vested by the rule primarily" in the district courts, Sears, supra at 351 U. S. 437, and because the number of possible situations is large, we are Page 446 U. S. 11 reluctant either to fix or sanction narrow guidelines for the district courts to follow. We are satisfied, however, that, on the record here, the District Court's assessment of the equities was reasonable.One of the equities which the District Judge considered was the difference between the statutory and market rates of interest. Respondent correctly points out that adjustment of the statutory prejudgment interest rate is a matter within the province of the legislature, but that fact does not make the existing differential irrelevant for Rule 54(b) purposes. If the judgment is otherwise certifiable, the fact that a litigant who has successfully reduced his claim to judgment stands to lose money because of the difference in interest rates is surely not a "just reason for delay."The difference between the prejudgment and market interest rates was not the only factor considered by the District Court. The court also noted that the debts in issue were liquidated and large, and that absent Rule 54(b) certification they would not be paid for "many months, if not years," because the rest of the litigation could be expected to continue for that period of time. The District Judge had noted earlier in his opinion on the merits of the release clause issue that respondent General Electric contested neither the amount of the debt nor the fact that it must eventually be paid. App. 164a-172a. The only contest was over the effect of the release clause on the timing of the payment, an isolated and strictly legal issue on which summary judgment had been entered against respondent.The question before the District Court thus came down to which of the parties should get the benefit of the difference between the prejudgment and market rates of interest on debts admittedly owing and adjudged to be due while unrelated claims were litigated. The central factor weighing in favor of General Electric was that its pending counterclaims created the possibility of a setoff against the amount it owed petitioner. Page 446 U. S. 12 This possibility was surely not an insignificant factor, especially since the counterclaims had survived a motion to dismiss for failure to state a claim. Id. a 173a-174a. But the District Court took this into account when it determined that both litigants appeared to be in financially sound condition, and that Curtiss-Wright would be able to satisfy a judgment on the counterclaims should any be entered.The Court of Appeals concluded that this was not enough, and suggested that the presence of such factors as economic duress and insolvency would be necessary to qualify the judgment for Rule 54(b) certification. 597 F.2d at 36. But if Curtiss-Wright were under a threat of insolvency, that factor alone would weigh against qualifying; that very threat would cast doubt upon Curtiss-Wright's capacity to produce all or part of the $19 million should General Electric prevail on some of its counterclaims. Such a showing would thus, in fact, be self-defeating.Nor is General Electric's solvency a dispositive factor; if its financial position were such that a delay in entry of judgment on Curtiss-Wright's claims would impair Curtiss-Wright's ability to collect on the judgment, that would weigh in favor of certification. But the fact that General Electric is capable of paying either now or later is not a "just reason for delay." At most, as the District Court found, the fact that neither party is or will become insolvent renders that factor neutral in a proper weighing of the equities involved.The question in cases such as this is likely to be close, but the task of weighing and balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case. As we have noted, that assessment merits substantial deference on review. Here, the District Court's assessment of the equities between the parties was based on an intimate knowledge of the case, and is a reasonable one. The District Court having found no other reason justifying delay, we conclude that it did not abuse its discretion in Page 446 U. S. 13 granting petitioner's motion for certification under Rule 54(b). [Footnote 3]Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCurtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1 (1980)Curtiss-Wright Corp. v. General Elec. Co.No. 79-105Argued January 14, 1980Decided April 22, 1980446 U.S. 1SyllabusPetitioner brought a diversity action in Federal District Court against respondent, seeking damages and reformation with regard to a certain series of contracts between the parties. Various claims were asserted, including a $19 million claim for amounts due on the contracts already performed. Respondent filed counterclaims. The facts as to most of the claims and counterclaims are in dispute, but the sole dispute as to petitioner's claim for the $19 million balance due concerns the application of a release clause in each of the contracts. The District Court granted summary judgment for petitioner for $19 million, plus prejudgment interest at the statutory rate of 6%, notwithstanding the release clause. Petitioner then moved for a certification of this judgment as a final judgment under Federal Rule of Civil Procedure 54(b), which provides that, when more than one claim is presented in an action, whether as a claim or counterclaim, a district court may direct the entry of a final judgment as to one or more but fewer than all of the claims upon an express determination that there is no just reason for delay. The court granted the motion and directed entry of final judgment for petitioner after determining that there was "no just reason for delay" and finding, inter alia, that certification would not result in unnecessary appellate review; that the claims finally adjudicated were separate from Page 446 U. S. 2 any of the other claims or counterclaims; that the nature of the claims was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals; that petitioner would suffer severe financial loss from nonpayment of the $19 million judgment because current interest rates were higher than the statutory prejudgment rates; and that the solvency of the parties was not a significant factor, since each appeared to be financially sound. Dismissing the case for want of an appealable order, the Court of Appeals held that the District Court had abused its discretion by granting the Rule 54(b) certification, since the possibility of a setoff required that the status quo be maintained unless petitioner could show harsh or unusual circumstances and since no such showing had been made.Held: The District Court did not abuse its discretion in granting petitioner's motion for certification under Rule 54(b). Pp. 446 U. S. 7-13.(a) In deciding whether there are just reasons to delay an appeal of individual final judgments in a setting such as this, a district court must take into account the interests of sound judicial administration, as well as the equities involved. Hence, it was proper for the District Court here to consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. The mere presence of nonfrivolous counterclaims does not render a Rule 54(b) certification inappropriate. Pp. 446 U. S. 8-9.(b) The Court of Appeals' holding that the status quo had to be maintained absent a showing by petitioner of harsh or unusual circumstances reflects a misinterpretation of the standard of review for Rule 54(b) certifications and a misperception of the appellate function in such cases. Pp. 446 U. S. 9-10.(c) The proper standard against which a district court's exercise of discretion in granting a Rule 54(b) certification is to be judged is the interest of sound judicial administration. Under this standard, although the court of appeals must scrutinize the district court's evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals, once such juridical concerns have been met, the district court's discretionary judgment should be given substantial deference, and the court of appeals should disturb the district court's assessment of the equities only if it can say that the district judge's conclusion was clearly unreasonable. Pp. 446 U. S. 10-11.(d) The question before the District Court here came down to which of the parties should get the benefit of the difference between the prejudgment Page 446 U. S. 3 and market rates of interest on the debts admittedly owing and adjudged to be due while unrelated claims were litigated. While the possibility of a setoff against the amount respondent owed petitioner was not an insignificant factor, the District Court took this into account when it determined that both litigants appeared to be financially sound, and that petitioner would be able to satisfy a judgment on the counterclaims if any were entered. Pp. 446 U. S. 11-12.597 F.2d 35, vacated and remanded. BURGER, C.J., delivered the opinion for a unanimous Court.

1998_97-889

JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether a general arbitration clause in a collective-bargaining agreement (CBA) requires an employee to use the arbitration procedure for an alleged violation of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.IIn 1970, petitioner Ceasar Wright began working as a longshoreman in Charleston, South Carolina. He was a member of Local 1422 of the International Longshoremen's Association, AFL-CIO (Union), which uses a hiring hall to supply workers to several stevedore companies represented by the South Carolina Stevedores Association (SCSA). Clause 15(B) of the CBA between the Union and the SCSA provides in part as follows: "Matters under dispute which cannot be promptly settled between the Local and an individual Employer shall, no later than 48 hours after such discussion, be referred in writing covering the entire grievance to a Port Grievance Committee .... " App.43a. If the Port Grievance Committee, which is evenly divided between representatives of labor and management, cannot reach anJ. Henderson, Richard T. Seymour, Teresa A. Ferrante, Cathy VentrellMonsees, and Sally Dunaway; for the National Academy of Arbitrators by David E. Feller; and for the National Employment Lawyers Association et al. by Cliff Palefsky and Paula A. Brantner.Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council et al. by Robert E. Williams, Ann Elizabeth Reesman, and Daniel V. Yager; for the National Association of Manufacturers by Clifford M. Sloan, Samuel D. Walker, Jan S. Amundson, and Quentin Riegel; and for the National Association of Waterfront Employers by Charles T. Carroll, Jr., and F. Edwin Froelich.Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Steven B. Berlin, Mark A. de Bernardo, Garry G. Mathiason, Stephen A. Bokat, Robin S. Conrad, and Sussan Mahallati Kysela; and for the Securities Industry Association by Michael Delikat, Gary Siniscalco, Lisa K. McClelland, and Stuart J. Kaswell.73agreement within five days of receiving the complaint, then the dispute must be referred to a District Grievance Committee, which is also evenly divided between the two sides. The CBA provides that a majority decision of the District Grievance Committee "shall be final and binding." Id., at 44a. If the District Grievance Committee cannot reach a majority decision within 72 hours after meeting, then the committee must employ a professional arbitrator.Clause 15(F) of the CBA provides as follows:"The Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment and that during the term of this Agreement the Employers will not be required to negotiate on any further matters affecting these or other subjects not specifically set forth in this Agreement. Anything not contained in this Agreement shall not be construed as being part of this Agreement. All past port practices being observed may be reduced to writing in each port." Id., at 45a-46a.Finally, Clause 17 of the CBA states: "It is the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." Id., at 47a.Wright was also subject to the Longshore Seniority Plan, which contained its own grievance provision, reading as follows: "Any dispute concerning or arising out of the terms and/or conditions of this Agreement, or dispute involving the interpretation or application of this Agreement, or dispute arising out of any rule adopted for its implementation, shall be referred to the Seniority Board." Id., at 48a. The Seniority Board is equally divided between labor and management representatives. If the board reaches agreement by majority vote, then that determination is final and binding. If the board cannot resolve the dispute, then the Union and74the SCSA each choose a person, and this "Committee of two" makes a final determination.On February 18, 1992, while Wright was working for respondent Stevens Shipping and Terminal Company (Stevens), he injured his right heel and his back. He sought compensation from Stevens for permanent disability under the Longshore and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., and ultimately settled the claim for $250,000 and $10,000 in attorney's fees. Wright was also awarded Social Security disability benefits.In January 1995, Wright returned to the Union hiring hall and asked to be referred for work. (At some point he obtained a written note from his doctor approving such activity.) Between January 2 and January 11, Wright worked for four stevedoring companies, none of which complained about his performance. When, however, the stevedoring companies realized that Wright had previously settled a claim for permanent disability, they informed the Union that they would not accept Wright for employment, because a person certified as permanently disabled (which they regarded Wright to be) is not qualified to perform longshore work under the CBA. The Union responded that the employers had misconstrued the CBA, suggested that the ADA entitled Wright to return to work if he could perform his duties, and asserted that refusing Wright employment would constitute a "lock-out" in violation of the CBA.When Wright found out that the stevedoring companies would no longer accept him for employment, he contacted the Union to ask how he could get back to work. Wright claims that instead of suggesting the filing of a grievance, the Union told him to obtain counsel and file a claim under the ADA. Wright hired an attorney and eventually filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the South Carolina State Human Affairs Commission, alleging that the stevedoring75companies and the SCSA had violated the ADA by refusing him work. In October 1995, Wright received a right-to-sue letter from the EEOC.In January 1996, Wright filed a complaint against the SCSA and six individual stevedoring companies in the United States District Court for the District of South Carolina. Respondents' answer asserted various affirmative defenses, including Wright's failure to exhaust his remedies under the CBA and the Seniority Plan. After discovery, respondents moved for summary judgment and Wright moved for partial summary judgment with respect to some of respondents' defenses. A Magistrate Judge recommended that the District Court dismiss the case without prejudice because Wright had failed to pursue the grievance procedure provided by the CBA. The District Court adopted the report and recommendation and subsequently rejected Wright's motion for reconsideration. The United States Court of Appeals for the Fourth Circuit affirmed, see No. 96-2850 (July 29, 1997), judgt. order reported at 121 F.3d 702, relying upon its earlier decision in Austin v. OwensBrockway Glass Container, Inc., 78 F.3d 875, cert. denied, 519 U. S. 980 (1996), which in turn had relied upon our decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991). We granted certiorari, 522 U. S. 1146 (1998).IIIn this case, the Fourth Circuit concluded that the general arbitration provision in the CBA governing Wright's employment was sufficiently broad to encompass a statutory claim arising under the ADA, and that such a provision was enforceable. The latter conclusion brings into question two lines of our case law. The first is represented by Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), which held that an employee does not forfeit his right to a judicial forum for claimed discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 4276u. S. C. § 2000e et seq., if "he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." 415 U. S., at 49. In rejecting the argument that the doctrine of election of remedies barred the Title VII lawsuit, we reasoned that a grievance is designed to vindicate a "contractual right" under a CBA, while a lawsuit under Title VII asserts "independent statutory rights accorded by Congress." Id., at 49-50. The statutory cause of action was not waived by the union's agreement to the arbitration provision of the CBA, since "there can be no prospective waiver of an employee's rights under Title VII." Id., at 51. We have followed the holding of Gardner-Denver in deciding the effect of CBA arbitration upon employee claims under other statutes. See McDonald v. West Branch, 466 U. S. 284 (1984) (claim under Rev. Stat. § 1979, 42 U. S. C. § 1983); Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981) (claim under Fair Labor Standards Act of 1938, 29 U. S. C. § 201 et seq.).The second line of cases implicated here is represented by Gilmer v. Interstate/Johnson Lane Corp., supra, which held that a claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., could be subject to compulsory arbitration pursuant to an arbitration provision in a securities registration form. Relying upon the federal policy favoring arbitration embodied in the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., we said that "statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA." 500 U. S., at 26 (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614 (1985)).There is obviously some tension between these two lines of cases. Whereas Gardner-Denver stated that "an employee's77rights under Title VII are not susceptible of prospective waiver," 415 U. S., at 51-52, Gilmer held that the right to a federal judicial forum for an ADEA claim could be waived. Petitioner and the United States as amicus would have us reconcile the lines of authority by maintaining that federal forum rights cannot be waived in union-negotiated CBAs even if they can be waived in individually executed contracts-a distinction that assuredly finds support in the text of Gilmer, see 500 U. S., at 26, 35. Respondents and their amici, on the other hand, contend that the real difference between Gardner-Denver and Gilmer is the radical change, over two decades, in the Court's receptivity to arbitration, leading Gilmer to affirm that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration," 500 U. S., at 26 (internal quotation marks and citation omitted); Gilmer, they argue, has sufficiently undermined Gardner-Denver that a union can waive employees' rights to a judicial forum. Although, as will appear, we find Gardner-Denver and Gilmer relevant for various purposes to the case before us, we find it unnecessary to resolve the question of the validity of a union-negotiated waiver, since it is apparent to us, on the facts and arguments presented here, that no such waiver has occurred.IIIIn asserting the existence of an agreement to arbitrate the ADA claim, respondents rely upon the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185.1 See generally Steelworkers v. Enterprise1 We have also discerned a presumption of arbitrability under the FAA, 9 U. S. C. § 1 et seq. See Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614, 626 (1985). Petitioner argued that the FAA78Wheel & Car Corp., 363 U. S. 593 (1960); Steelworkers v. American Mfg. Co., 363 U. S. 564 (1960); Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960). In collectivebargaining agreements, we have said, "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.''' AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 650 (1986) (quoting Warrior & Gulf, supra, at 582-583).That presumption, however, does not extend beyond the reach of the principal rationale that justifies it, which is that arbitrators are in a better position than courts to interpret the terms of a CBA. See AT&T Technologies, supra, at 650; Warrior & Gulf, supra, at 581-582. This rationale finds support in the very text of the LMRA, which announces that "[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U. S. C. § 173(d) (emphasis added). The dispute in the present case, however, ultimately concerns not the application ordoes not apply to this case, see Brief for Petitioner 43-44, and asserted that respondents "have not argued at any stage of this case that the F. A. A. applies," id., at 43. Respondents did not dispute the latter assertion, nor did they argue the applicability of the FAA before us; rather, they contended that it makes no difference whether the FAA applies, since the FAA presumption and the LMRA presumption are the same, see Brief for Respondents 12; Tr. of Oral Arg. 42-43. Finally, the Fourth Circuit, while it cited an FAA case, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983), did not explicitly rely upon the FAA-presumably because it has held elsewhere that the FAA does not apply to CBAs, see Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875, 879 (CA4), cert. denied, 519 U. S. 980 (1996). In these circumstances, we decline to consider the applicability of the FAA to the present case.79interpretation of any CBA, but the meaning of a federal statute. The cause of action Wright asserts arises not out of contract, but out of the ADA, and is distinct from any right conferred by the collective-bargaining agreement. See Gilmer, supra, at 34; Barrentine, 450 U. S., at 737; GardnerDenver, supra, at 49-50. To be sure, respondents argue that Wright is not qualified for his position as the CBA requires, but even if that were true he would still prevail if the refusal to hire violated the ADA.Nor is the statutory (as opposed to contractual) focus of the claim altered by the fact that Clause 17 of the CBA recites it to be "the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." App. 47a. As we discuss below in Part IV; this does not incorporate the ADA by reference. Even if it did so, however-thereby creating a contractual right that is coextensive with the federal statutory right-the ultimate question for the arbitrator would be not what the parties have agreed to, but what federal law requires; and that is not a question which should be presumed to be included within the arbitration requirement. Application of that principle is unaffected by the fact that the CBA in this case, unlike the one in Gardner-Denver, does not expressly limit the arbitrator to interpreting and applying the contract. The presumption only extends that far, whether or not the text of the agreement is similarly limited. It may well be that ordinary textual analysis of a CBA will show that matters which go beyond the interpretation and application of contract terms are subject to arbitration; but they will not be presumed to be so.IVNot only is petitioner's statutory claim not subject to a presumption of arbitrability; we think any CBA requirement to arbitrate it must be particularly clear. In Metropolitan Edison Co. v. NLRB, 460 U. S. 693 (1983), we stated that a80union could waive its officers' statutory right under § 8(a)(3) of the National Labor Relations Act, 29 U. s. C. § 158(a)(3), to be free of antiunion discrimination, but we held that such a waiver must be clear and unmistakable. "[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is 'explicitly stated.' More succinctly, the waiver must be clear and unmistakable." 460 U. S., at 708; see also Livadas v. Bradshaw, 512 U. S. 107, 125 (1994) (dictum); Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399, 409, n. 9 (1988) (dictum); cf. Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 283 (1956).We think the same standard applicable to a unionnegotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination. Although that is not a substantive right, see Gilmer, 500 U. S., at 26, and whether or not Gardner-Denver's seemingly absolute prohibition of union waiver of employees' federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-thanexplicit union waiver in a CBA. The CBA in this case does not meet that standard. Its arbitration clause is very general, providing for arbitration of "[m]atters under dispute," App. 43a-which could be understood to mean matters in dispute under the contract. And the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements. (Indeed, it does not even contain, as did the CBAs in Austin and Gardner-Denver, its own specific antidiscrimination provision.) The Fourth Circuit relied upon the fact that the equivalently broad arbitration clause in Gilmer-applying to "any dispute, claim or controversy" -was held to embrace federal statutory claims. But Gilmer involved an individual's waiver of his own rights, rather than a union's waiver of the rights of represented em-81ployees-and hence the "clear and unmistakable" standard was not applicable.Respondents rely upon Clause 15(F) of the CBA, which states that "this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment." App. 45a-46a. But even if this could, in isolation, be considered a clear and unmistakable incorporation of employment-discrimination laws (which is doubtful), it is surely deprived of that effect by the provision, later in the same paragraph, that "[a]nything not contained in this Agreement shall not be construed as being part of this Agreement." Id., at 46a. Respondents also rely upon Clause 17 of the CBA, which states that "[i]t is the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." Id., at 47a. They argue that this requires the arbitrator to "apply legal definitions derived from the ADA" in determining whether Wright is "qualified" for employment within the meaning of the CBA. Brief for Respondents 39. Perhaps so, but that is not the same as making compliance with the ADA a contractual commitment that would be subject to the arbitration clause. This becomes crystal clear when one contrasts Clause 17 with the provision of the CBA which states that "[t]he requirements of the Occupations [sic] Safety and Health Administration shall be binding on both Parties." App. 46a. (Under respondents' interpretation of Clause 17, this OSHA provision would be superfluous.) Clause 17 seems to us nothing more than a recitation of the canon of construction which would in any event have been applied to the CBA-that an agreement should be interpreted in such fashion as to preserve, rather than destroy, its validity (ut res magis valeat quam pereat).Finally, we do not find a clear and unmistakable waiver in the Longshore Seniority Plan. Like the CBA itself, the plan contains no antidiscrimination provision; and it specifi-82cally limits its grievance procedure to disputes related to the agreement.2***We hold that the collective-bargaining agreement in this case does not contain a clear and unmistakable waiver of the covered employees' rights to a judicial forum for federal claims of employment discrimination. We do not reach the question whether such a waiver would be enforceable. The judgment of the Fourth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusWRIGHT v. UNIVERSAL MARITIME SERVICE CORP. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 97-889. Argued October 7, 1998-Decided November 16, 1998Petitioner Wright, a longshoreman, was subject to a collective-bargaining agreement (CBA) and a Longshore Seniority Plan, both of which contained an arbitration clause. When respondents refused to employ him following his settlement of a claim for permanent disability benefits for job-related injuries, Wright filed this suit, alleging discrimination in violation of the Americans with Disabilities Act of 1990 (ADA). The District Court dismissed the case without prejudice because Wright had failed to pursue the arbitration procedure provided by the CBA. The Fourth Circuit affirmed.Held: The CBA's general arbitration clause does not require Wright to use the arbitration procedure for alleged violation of the ADA. pp. 75-82.(a) The Fourth Circuit's conclusions that the CBA arbitration clause encompassed a statutory claim under the ADA and was enforceable bring into focus the tension between two lines of this Court's case law. Compare, e. g., Alexander v. Gardner-Denver Co., 415 U. S. 36, 49-51, with, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26. However, it is unnecessary to resolve the question of the validity of a union-negotiated waiver of employees' statutory rights to a federal forum, since it is apparent, on the facts and arguments presented here, that no such waiver has occurred. Pp. 75-77.(b) Petitioner's ADA claim is not subject to the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947. That presumption does not extend beyond the reach of the principal rationale that justifies it, i. e., that arbitrators are in a better position than courts to interpret the terms of a CBA. See, e. g., AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 650. The dispute here ultimately concerns not the application or interpretation of any CBA, but the meaning of a federal statute, the ADA. Although ordinary textual analysis of a CBA may show that matters beyond the interpretation and application of contract terms are subject to arbitration, they will not be presumed to be so. pp. 77-79.(c) In order for a union to waive employees' rights to a federal judicial forum for statutory antidiscrimination claims, the agreement to arbitrate such claims must be clear and unmistakable. Cf., e. g., Metropoli-71tan Edison Co. v. NLRB, 460 U. S. 693, 708. The CEA's arbitration clause is very general, providing only for arbitration of "[m]atters under dispute," and the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements. For similar reasons, there is no clear and unmistakable waiver in the Longshore Seniority Plan. This Court does not reach the question whether such a waiver would be enforceable. Pp. 79-82.121 F.3d 702, vacated and remanded.SCALIA, J., delivered the opinion for a unanimous Court.Ray P. McClain argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Charles Stephen Ralston.Deputy Solicitor General Underwood argued the cause for the United States et al. as amici curiae urging reversal. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Hodgkiss, James A. Feldman, C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory.Charles A. Edwards argued the cause and filed a brief for respondents. **Eriefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, Richard Wayne Cole and Catherine C. Ziehl, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Judy Drickey-Prohow, Assistant Attorney General, Darrell V. McGraw, Attorney General of West Virginia, Mary C. Buchmelter, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Dennis C. Vacco of New York, Hardy Myers of Oregon, William Sorrell of Vermont, and Mark L. Early of Virginia; for the American Civil Liberties Union et al. by Louis M. Bograd, David S. Schwartz, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations et al. by Laurence Gold, Jonathan P. Hiatt, James B. Coppess, Marsha S. Berzon, Thomas W Gleason, Herzl S. Eisenstadt, James R. Watson, and Armand Derfner; for the Lawyers' Committee for Civil Rights under Law et al. by Paul W Mollica, Thomas R. Meites, Barbara R. Arnwine, Thomas72Full Text of Opinion

1976_75-1771

MR. JUSTICE STEVENS delivered the opinion of the Court.In this case, for the second time this Term, we are required to construe the complex portion of the Internal Revenue Code concerning life insurance companies. [Footnote 1] The issue in this case is the extent to which deferred and uncollected life insurance premiums are includable in "reserves," "assets," and "gross premium income," as those concepts are used in the Life Insurance Company Income Tax Act of 1959. [Footnote 2]IPremiums on respondent's policies are often payable in installments. If an installment is not paid when due, the policy will lapse, generally after a grace period. However, there is no legally enforceable duty to pay the premiums. An installment falling due between the end of the tax year and the policy's anniversary date is called a "deferred premium." In 1961, the most recent year in issue, respondent had $1,572,763 of deferred premiums. Pet. for Cert. 4a. An installment which is overdue at the end of the tax year is called an "uncollected premium" if the policy has not yet lapsed. In 1961, respondent had $231,969 of uncollected premiums. Ibid. For convenience, we shall refer to both deferred and uncollected premiums simply as "unpaid premiums." Page 433 U. S. 150The amount charged a policyholder -- the "gross premium" -- includes two components. Under state law, the company must add part of the premium to its reserves to ensure that it will have sufficient funds to pay death benefits. This amount, the "net valuation premium," is determined under mortality and interest assumptions. The rest of the gross premium is called "loading," and covers profits and expenses such as salesmen's commissions, state taxes, and overhead.Under normal accounting rules, unpaid premiums would simply be ignored. They would not be properly accruable, since the company has no legal right to collect them. Nevertheless, for the past century, insurance companies have added an amount equal to the net valuation portion of unpaid premiums to their reserves, with an offsetting addition to assets. State law uniformly requires this treatment of unpaid premiums, as does the accounting form issued by the National Association of Insurance Commissioners (NAIC). This national organization of state regulatory officials, which acts on behalf of the various state insurance departments, performs audits on insurance companies like respondent which do business in many States. The NAIC accounting form, known in the industry as the "Annual Statement," is used by respondent for its financial reporting. In effect, in calculating its reserves, the company must treat these premiums to some extent as if they had been paid.This case involves the tax treatment of respondent's unpaid premiums for the years 1958, 1959, and 1961. In its returns for each of those years, it included the net unpaid premiums in reserves, just as it did in its annual NAIC statement. In 1959 and 1961, it also followed the NAIC statement by including the net premiums in assets and premium income. In 1958, however, it excluded the entire unpaid premium from assets. The Commissioner assessed a deficiency because respondent did not, in any of these years, include the entire Page 433 U. S. 151 unpaid premium -- loading as well as net premium -- in calculating assets and income. In his view, if reserves are calculated on the fictional assumption that these premiums have been paid, the same assumption should apply to the calculation of assets and gross premium income. The Tax Court upheld the deficiency; but the Court of Appeals reversed. [Footnote 3] It held that respondent's reserve calculation was correct, because it was required by state law. The court further held that in accord with normal accounting practices, the premiums could not be considered as either assets or income before they were actually collected.The Courts of Appeals have taken varying approaches to this problem. The position taken by the Tenth Circuit in this case conflicts with decisions of four other Circuits. [Footnote 4] For this reason, and because the question is important to the revenue, [Footnote 5] we granted certiorari. 429 U.S. 814.Although the problem is a perplexing one, as indicated by the diversity of opinion among the Circuits, we find guidance in 26 U.S.C. § 818(a), which governs the method of accounting by life insurance companies. In our view, § 818(a) requires deference in this case to the established accounting procedures of the NAIC. In accordance with the NAIC procedures, we therefore hold that the net valuation portion of unpaid premiums, but not the loading, must be included in assets and gross premium income, as well as in reserves.Resolution of the problem before us requires some understanding of how reserves, assets, and premium income enter Page 433 U. S. 152 into the calculation of a life insurance company's taxable income. We therefore begin with a summary of past legislation and of the method by which the tax is no calculated. We then turn to a discussion of § 818(a) and its application to this case.IIThroughout the history of the federal income tax, Congress has taken the view that life insurance companies should not be taxed on the amounts collected for the purpose of paying death benefits. This basic theme has been implemented in different ways.AFrom 1913 to 1920, life insurance companies, like other companies, were taxed on their entire income, but were allowed a deduction for "the net addition . . . required by law to be made within the year to reserve funds. . . ." [Footnote 6] In that period, the Government first challenged, but then accepted, the industry practice of deducting additions to reserves based on unpaid premiums without taking those premiums into income. [Footnote 7] Page 433 U. S. 153Beginning with the Revenue Act of 1921, Congress taxed only the investment income of life insurance companies; premium income was not included in their gross income. [Footnote 8] The companies were allowed to deduct a fixed percentage of their total reserves from their total investment income. [Footnote 9] The Page 433 U. S. 154 computation of this deduction was based on the company's entire policy reserves, including the portion attributed to unpaid premiums. This use of this portion of the reserves apparently was not questioned during that period. There was no occasion to consider whether unpaid premiums should be treated as "income," since all premium income was exempt from tax in this period.The 1959 statute applies to all tax years after 1957. It preserves the basic concept of taxing only that portion of the life insurance company's income which is not required to meet policyholder obligations. It makes two important changes, however, in the method of computing that amount. First, whereas the preceding statutes assumed an industry-wide rate of return for the purpose of calculating the reserve deduction, the 1959 Act requires a calculation based on each company's own earnings record. Second, in addition to imposing a tax on investment income, the new Act also taxes a portion of the company's premium income. Although the computations are more complex, the basic approach of the 1959 Act is therefore somewhat comparable to the pre-1921 "total income" concept.BIn order to understand the implications of the Commissioner's argument that unpaid premiums should be consistently treated in calculating "assets" and "gross premium income," as well as "reserves," it is necessary to explain how these concepts are employed in the present statute. [Footnote 10] Page 433 U. S. 155The 1959 Act adds §§ 801 through 820 to the Internal Revenue Code of 1954 (26 U.S.C.). Section 802(b) defines three components of "life insurance company taxable income," of which only the first two are relevant to this case. [Footnote 11] Generally, the taxable income is the sum of(1) the company's "taxable investment income" and (2) 50% of it other income (defined as the difference between its total "gain from operations" and its taxable investment income). [Footnote 12]A company's total investment income is regarded as including a share for the company, which is taxable, and a "policyholders' share," which is not. [Footnote 13] The policyholders' share is a Page 433 U. S. 156 percentage which is essentially determined by the ratio of the company's reserves to its assets. [Footnote 14] An increase in reserves will therefore reduce the company's taxable investment income, whereas an increase in its assets will increase its tax.The company's "gain from operations" includes, in addition to its share of investment income, [Footnote 15] the "gross amount of premiums," § 809(c)(1). Obviously, if unpaid premiums are regarded as part of this gross amount, the company's gain from operations will be increased to that extent. Moreover, since a deduction is allowed for the net increase in reserves, § 809(d)(2), the contribution of unpaid premiums to the reserves diminishes the company's gain. Page 433 U. S. 157IIIIn a sense, the case presents a question of timing. Respondent claims the right to treat unpaid premiums as creating reserves, and therefore a tax deduction, in one year, but wishes not to recognize the unfavorable tax consequences of increased "assets" and "premium income" until the year in which the premiums are actually paid. [Footnote 16] As the Commissioner forcefully argues, the respondent's position lacks symmetry, and the lack thereof redounds entirely to its benefit.AWe start from the premise that unpaid premiums must be reflected in a life insurance company's reserves. [Footnote 17] This has been the consistent and unbroken practice since the inception of the federal income tax on life insurance companies in 1913. Moreover, the uniform practice of the States since before 1913 has been to require that reserves reflect unpaid premiums. State law is relevant to the statutory definition of reserves, since life insurance reserves generally must be required by state law in order to be recognized for tax purposes. § 801(b)(2). As a matter of state law, a genuine contingent liability exists, and must be reflected on the company's financial records. This liability has effects on the company's business which transcend its income tax consequences. [Footnote 18] In view of the critical importance of the definition of reserves in the entire statutory scheme, [Footnote 19] as well as in the Page 433 U. S. 158 conduct of the company's business, the practice of including net unpaid premiums in reserves cannot have been unknown to Congress. It is clear, we think, that no radical departure from past law was intended. Having decided that unpaid premiums must be treated to some extent as though they had actually been paid, the more difficult question is how far to apply this fictional assumption. Since this is essentially an accounting problem, our inquiry is governed by § 818. As its title indicates, § 818 contains the "Accounting provisions" relating to this portion of the Code. Section 818(a) provides:"(a) Method of accounting.""All computations entering into the determination of the taxes imposed by this part shall be made --""(1) under an accrual method of accounting, or""(2) to the extent permitted under regulations prescribed by the Secretary or his delegate, under a combination of an accrual method of accounting with any other method permitted by this chapter (other than the cash receipts and disbursements method).""Except as provided in the preceding sentence, all such computations shall be made in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners."The legislative history makes it clear that the accounting procedures established by the NAIC apply if they are "not inconsistent" with accrual accounting rules. [Footnote 20] In other words, Page 433 U. S. 159 except when the rules of accrual accounting dictate a contrary result, NAIC procedures "shall" apply. [Footnote 21]With the statutory test in mind, we consider the various proposed solutions to this accounting problem.BEssentially, the problem in this case is to decide the scope to be given a fictional assumption. Four solutions have been proposed.First, as the company argues, the assumption of prepayment could be applied in calculating the reserves, but ignored when calculating assets and income. This was the position taken by the Court of Appeals in this case. That position Page 433 U. S. 160 significantly distorts the tax equation in favor of the taxpayer and against the Government. Although we do not accept the notion that there must be perfect.symmetry in the tax laws, there should be a measure of consistency in the accounting treatment of an item affecting interrelated elements in a formula such as that used to calculate the policyholders' share of investment income. We think the Commissioner, and the other Courts of Appeals, see n 4, supra, properly rejected the entirely one-sided use of the fictional assumption proposed by the taxpayer in this case.Second, we could assume that the entire premium has been paid, but that none of the associated expenses have been incurred. Thus, the fictional assumption would be applied when determining reserves, assets, and gross premium income, but not when determining expenses. This is the position taken by the Commissioner. See Treas.Regs. § § 1.805, 1.809-4, 26 CFR §§ 1.805-5, 1.809-4 (1976). [Footnote 22] It is obvious that requiring the companies to treat the premium (including loading) as an asset and as income would improperly accelerate their tax payments, for a major share of loading is applied, when it is received, to deductible items such as sales commissions. Thus, to tax the entire loading portion of an unpaid premium is doubly objectionable: it imposes a tax on income the company has not received and it treats the entire loading Page 433 U. S. 161 as income even though most of it will be disbursed for deductible expenses. The result of accepting the Commissioner's position would be that the insurance company would have a greater tax liability on unpaid premiums than if the premiums had actually been paid. This result is also unacceptable.Third, some Courts of Appeals have extended the fiction somewhat further to include an assumption that certain expenses associated with the unpaid premiums have been incurred. [Footnote 23] These courts allow a deduction for some expenses such as salesmen's commissions, which are payable upon receipt of the premium. It is not clear, however, precisely what expenses would receive this treatment. The approach adopted by these courts eliminates much of the unfairness of the Commissioner's position. But their approach would take us far from the statute. Since there is nothing in the statute directing that any portion of unpaid loading be treated as an asset or as income, the statute obviously cannot provide guidance in fashioning a set of deductions to be credited against the fictional assumption that such loading is income.The fourth approach, in contrast, does have support in the statute. This approach has been adopted by the NAIC for the purpose of preparing the Annual Statement, and therefore is firmly anchored in the text of § 818(a) which establishes a preference for NAIC accounting methods. [Footnote 24] Under this view, the net valuation portion of the unpaid Page 433 U. S. 162 premiums is included in reserves, assets, and gross premium income, while the loading portion is entirely excluded. [Footnote 25] This approach might be described as adopting the fictional assumption that the net valuation portion of the premium has been paid, but that the loading portion has not. This accounting treatment has been consistently applied throughout the industry for decades, and was regarded as the correct approach by the Tax Court when it first confronted this problem area. Western Nat. Life Ins. Co. of Texas v. Commissioner, 51 T.C. 824 (1969), modifying 50 T.C. 285 (1968), rev'd, 432 F.2d 298 (CA5 1970). By including the net valuation portion of the unpaid premium -- and only that portion -- on both sides of the relevant equations, it satisfies in large measure the Commissioner's quest for symmetry. It also avoids the uncertainty and confusion that would attend any attempt to segregate unpaid loading into deductible and nondeductible parts. Finally, it provides a practical rule which should minimize the likelihood of future disputes.Under § 818(a), rejection of the NAIC approach would be justified only if it were found inconsistent with the dictates of accrual accounting. But the general rules of accrual accounting simply do not speak to the question of the scope to be given the entirely fictional assumption required by this statute. Any one of the four approaches has an equally good -- or equally bad -- claim to being "an accrual method." Since general accounting rules are not controlling, the statute requires use of the NAIC approach to fill the gap. [Footnote 26] Page 433 U. S. 163Accordingly, we conclude that unpaid premiums must be reflected in the computation of respondent's tax liabilities "in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners." To the extent that the Secretary's regulations require different treatment of unpaid premiums, we hold that they are inconsistent with § 818(a), and therefore invalid.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 CourtCommissioner v. Standard Life & Acc. Ins. Co., 433 U.S. 148 (1977)Commissioner v. Standard Life & Accident Ins. Co.No. 75-1771Argued March 30, 1977Decided June 23, 1977433 U.S. 148SyllabusThe "net valuation" portion of unpaid life insurance premiums (the portion state law requires a life insurance company to add to its reserve), but not the "loading" portion (the portion to be used to pay salesmen's commissions, other expenses such as state taxes and overhead, and profits), held required to be included in a life insurance company's assets and gross premium income, as well as in its reserves, for purposes of computing its federal income tax liability, notwithstanding such computation necessitates making a fictional assumption that the "net valuation" portion has been paid but that the "loading" portion has not. This treatment of unpaid premiums is in accordance with § 818(a) of the Internal Revenue Code of 1954 (as added by the Life Insurance Company Income Tax Act of 1959), which requires computations of a life insurance company's income taxes to be made"in a manner consistent with the manner required for purposes of the annual statement approved by the National Association of Insurance Commissioners,"unless the NAIC procedures are inconsistent with accrual accounting rules, and to the extent that the Treasury Regulations require different treatment of unpaid premiums they are inconsistent with § 818(a), and therefore invalid. Pp. 433 U. S. 152-163.525 F.2d 786, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BURGER, C.J., joined, post, p. 433 U. S. 163. STEWART, J., took no part in the consideration or decision of the case. Page 433 U. S. 149

1982_81-1244

JUSTICE POWELL delivered the opinion of the Court.Title 42 U.S.C. § 1988 provides that, in federal civil rights actions, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The issue in this case is whether a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims.IARespondents brought this lawsuit on behalf of all persons involuntarily confined at the Forensic Unit of the Fulton State Hospital in Fulton, Mo. The Forensic Unit consists of two residential buildings for housing patients who are dangerous to themselves or others. Maximum-security patients are housed in the Marion O. Biggs Building for the Criminally Insane. The rest of the patients reside in the less restrictive Rehabilitation Unit.In 1972, respondents filed a three-count complaint in the District Court for the Western District of Missouri against petitioners, who are officials at the Forensic Unit and members of the Missouri Mental Health Commission. Count I challenged the constitutionality of treatment and conditions at the Forensic Unit. Count II challenged the placement of patients in the Biggs Building without procedural due process. Count III sought compensation for patients who performed institution-maintaining labor.Count II was resolved by a consent decree in December, 1973. Count III largely was mooted in August, 1974, when Page 461 U. S. 427 petitioners began compensating patients for labor pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. In April, 1975, respondents voluntarily dismissed the lawsuit and filed a new two-count complaint. Count I again related to the constitutionality of treatment and conditions at the Forensic Unit. Count II sought damages, based on the Thirteenth Amendment, for the value of past patient labor. In July, 1976, respondents voluntarily dismissed this backpay count. Finally, in August, 1977, respondents filed an amended one-count complaint specifying the conditions that allegedly violated their constitutional right to treatment.In August, 1979, following a three-week trial, the District Court held that an involuntarily committed patient has a constitutional right to minimally adequate treatment. 476 F. Supp. 908, 915 (1979). The court then found constitutional violations in five of six general areas: physical environment; individual treatment plans; least restrictive environment; visitation, telephone, and mail privileges; and seclusion and restraint. [Footnote 1] With respect to staffing, the sixth general area, Page 461 U. S. 428 the District Court found that the Forensic Unit's staffing levels, which had increased during the litigation, were minimally adequate. Id. at 919-920. Petitioners did not appeal the District Court's decision on the merits.BIn February, 1980, respondents filed a request for attorney's fees for the period from January, 1975, through the end of the litigation. Their four attorneys claimed 2,985 hours worked and sought payment at rates varying from $40 to $65 per hour. This amounted to approximately $150,000. Respondents also requested that the fee be enhanced by 30 to 50 percent, for a total award of somewhere between $195,000 and $225,000. Petitioners opposed the request on numerous grounds, including inclusion of hours spent in pursuit of unsuccessful claims.The District Court first determined that respondents were prevailing parties under 42 U.S.C. § 1988 even though they had not succeeded on every claim. It then refused to eliminate from the award hours spent on unsuccessful claims:"[Petitioners'] suggested method of calculating fees is based strictly on a mathematical approach comparing the total number of issues in the case with those actually prevailed upon. Under this method, no consideration is given for the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues."No. 75-CV-87-C, p. 7 (WD Mo., Jan. 23, 1981), Record 220. Finding that respondents "have obtained relief of significant import," id. at 231, the District Court awarded a fee of $133,332.25. This award differed from the fee request in two respects. First, the court reduced the number of hours claimed by one attorney by 30 percent to account for his inexperience Page 461 U. S. 429 and failure to keep contemporaneous records. Second, the court declined to adopt an enhancement factor to increase the award.The Court of Appeals for the Eighth Circuit affirmed on the basis of the District Court's memorandum opinion and order. 664 F.2d 294 (1981). We granted certiorari, 455 U.S. 988 (1982), and now vacate and remand for further proceedings.IIIn Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), this Court reaffirmed the "American Rule" that each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary. In response, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizing the district courts to award a reasonable attorney's fee to prevailing parties in civil rights litigation. The purpose of § 1988 is to ensure "effective access to the judicial process" for persons with civil rights grievances. H.R.Rep. No. 94-1558, p. 1 (1976). Accordingly, a prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" S.Rep. No. 94-1011, p. 4 (1976) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 390 U. S. 402 (1968)). [Footnote 2]The amount of the fee, of course, must be determined on the facts of each case. On this issue, the House Report simply refers to 12 factors set forth in Johnson v. Georgia Highway Page 461 U. S. 430 way Express, Inc., 488 F.2d 714 (CA5 1974). [Footnote 3] The Senate Report cites to Johnson as well, and also refers to three District Court decisions that "correctly applied" the 12 factors. [Footnote 4] One of the factors in Johnson, "the amount involved and the results obtained," indicates that the level of a plaintiff's success is relevant to the amount of fees to be awarded. The importance of this relationship is confirmed in varying degrees by the other cases cited approvingly in the Senate Report.In Stanford Daily v. Zurcher, 64 F.R.D. 680 (ND Cal.1974), aff'd, 550 F.2d 464 (CA9 1977), rev'd on other grounds, 436 U. S. 436 U.S. 547 (1978), the plaintiffs obtained a declaratory judgment, then moved for a preliminary injunction. After the defendants promised not to violate the judgment, Page 461 U. S. 431 the motion was denied. The District Court awarded attorney's fees for time spent pursuing this motion because the plaintiffs "substantially advanced their clients' interests" by obtaining "a significant concession from defendants as a result of their motion." 64 F.R.D. at 684.In Davis v. County of Los Angeles, 8 E.P.D. � 9444 (CD Cal.1974), the plaintiffs won an important judgment requiring the Los Angeles County Fire Department to undertake an affirmative action program for hiring minorities. In awarding attorney's fees the District Court stated:"It also is not legally relevant that plaintiffs' counsel expended a certain limited amount of time pursuing certain issues of fact and law that ultimately did not become litigated issues in the case or upon which plaintiffs ultimately did not prevail. Since plaintiffs prevailed on the merits and achieved excellent results for the represented class, plaintiffs' counsel are entitled to an award of fees for all time reasonably expended in pursuit of the ultimate result achieved in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter."Id. at 5049.Similarly, the District Court in Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 484 (WDNC 1975), based its fee award in part on a finding that "[t]he results obtained were excellent and constituted the total accomplishment of the aims of the suit," despite the plaintiffs' losses on "certain minor contentions."In each of these three cases, the plaintiffs obtained essentially complete relief. The legislative history, therefore, does not provide a definitive answer as to the proper standard for setting a fee award where the plaintiff has achieved only limited success. Consistent with the legislative history, Courts of Appeals generally have recognized the relevance of the results obtained to the amount of a fee award. They Page 461 U. S. 432 have adopted varying standards, however, for applying this principle in cases where the plaintiff did not succeed on all claims asserted. [Footnote 5]In this case, petitioners contend that"an award of attorney's fees must be proportioned to be consistent with the extent to which a plaintiff has prevailed, and only time reasonably expended in support of successful claims should be compensated."Brief for Petitioners 24. Respondents agree that a plaintiff's success is relevant, but propose a less stringent standard focusing on "whether the time spent prosecuting [an unsuccessful] claim in any way contributed to the ultimate results achieved." Brief for Respondents 46. Both parties acknowledge the discretion of the district court in this area. We take this opportunity to clarify the proper relationship of the results obtained to an award of attorney's fees. [Footnote 6] Page 461 U. S. 433IIIAA plaintiff must be a "prevailing party" to recover an attorney's fee under § 1988. [Footnote 7] The standard for making this threshold determination has been framed in various ways. A typical formulation is that"plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (CA1 1978). [Footnote 8] This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is "reasonable."The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. Page 461 U. S. 434The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission."In the private sector, 'billing judgment' is an important component in fee-setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."Copeland v. Marshall, 205 U.S.App.D.C. 390, 401, 641 F.2d 880, 891 (1980) (en banc) (emphasis in original).BThe product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the "results obtained." [Footnote 9] This factor is particularly crucial where a plaintiff is deemed "prevailing" even though he succeeded on only some of his claims for relief. In this situation, two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?In some cases, a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the Page 461 U. S. 435 claims are brought against the same defendants -- often an institution and its officers, as in this case -- counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." Davis v. County of Los Angeles, 8 E.P.D. at 5049. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim. [Footnote 10]It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases, the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead, the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed, in some cases of exceptional success, an enhanced award may be justified. In these circumstances, the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of Los Angeles, supra, at 5049. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters. [Footnote 11] Page 461 U. S. 436If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.Application of this principle is particularly important in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy, and demands many hours of lawyers' services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a "prevailing party" therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved. In this case, for example, the District Court's award of fees based on 2,557 hours worked may have been reasonable in light of the substantial relief obtained. But had respondents prevailed on only one of their six general claims, for example the claim that petitioners' visitation, mail, and telephone policies were overly restrictive, see n 1, supra, a fee award based on the claimed hours clearly would have been excessive.There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce Page 461 U. S. 437 the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.CA request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise "billing judgment" with respect to hours worked, see supra at 461 U. S. 434, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims. [Footnote 12]We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters. It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained. Page 461 U. S. 438IVIn this case, the District Court began by finding that"[t]he relief [respondents] obtained at trial was substantial, and certainly entitles them to be considered prevailing . . . , without the need of examining those issues disposed of prior to trial in order to determine which went in [respondents'] favor."Record 219. It then declined to divide the hours worked between winning and losing claims, stating that this fails to consider"the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues."Id. at 220. Finally, the court assessed the "amount involved/ results obtained," and declared:"Not only should [respondents] be considered prevailing parties, they are parties who have obtained relief of significant import. [Respondents'] relief affects not only them, but also numerous other institutionalized patients similarly situated. The extent of this relief clearly justifies the award of a reasonable attorney's fee."Id. at 231.These findings represent a commendable effort to explain the fee award. Given the interrelated nature of the facts and legal theories in this case, the District Court did not err in refusing to apportion the fee award mechanically on the basis of respondents' success or failure on particular issues. [Footnote 13] And given the findings with respect to the level of respondents' success, the District Court's award may be consistent with our holding today.We are unable to affirm the decisions below, however, because the District Court's opinion did not properly consider the relationship between the extent of success and the amount of the fee award. [Footnote 14] The court's finding that "the [significant] Page 461 U. S. 439 extent of the relief clearly justifies the award of a reasonable attorney's fee" does not answer the question of what is "reasonable" in light of that level of success. [Footnote 15] We Page 461 U. S. 440 emphasize that the inquiry does not end with a finding that the plaintiff obtained significant relief. A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.VWe hold that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. On remand, the District Court should determine the proper amount of the attorney's fee award in light of these standards.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 CourtHensley v. Eckerhart, 461 U.S. 424 (1983)Hensley v. EckerhartNo. 81-1244Argued November 3, 1982Decided May 16, 1983461 U.S. 424SyllabusRespondents, on behalf of all persons involuntarily confined in the forensic unit of a Missouri state hospital, brought suit in Federal District Court against petitioner hospital officials, challenging the constitutionality of treatment and conditions at the hospital. The District Court, after a trial, found constitutional violations in five of the six general areas of treatment. Subsequently, respondents filed a request for attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, which provides that, in federal civil rights actions, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." After determining that respondents were prevailing parties under § 1988 even though they had not succeeded on every claim, the District Court refused to eliminate from the attorney's fees award the hours spent by respondents' attorneys on the unsuccessful claims, finding that the significant extent of the relief clearly justified the award of a reasonable attorney's fee. The Court of Appeals affirmed.Held: The District Court did not properly consider the relationship between the extent of success and the amount of the attorney's fee award. The extent of a plaintiff's success is a crucial factor in determining the proper amount of an attorney's fee award under § 1988. Where the plaintiff failed to prevail on a claim unrelated to the successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the court should award only that amount of fees that is reasonable in relation to the results obtained. Pp. 461 U. S. 429-440.664 F.2d 294, vacated 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. 461 U. S. 440. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 461 U. S. 441. Page 461 U. S. 426

1966_637

MR. JUSTICE FORTAS delivered the opinion of the Court.The issue in this case is whether a bequest in trust providing for the monthly payment to decedent's widow of a fixed amount can qualify for the estate tax marital deduction under § 2056(b)(5) of the Internal Revenue Code of 1954, 26 U.S.C. § 2056(b)(5). That section allows a marital deduction from a decedent's adjusted gross estate of up to one-half the value of the estate Page 387 U. S. 215 in respect to specified interests which pass to the surviving spouse. Among the interests which qualify is one in which the surviving spouse"is entitled for life to . . . all the income from a specific portion [of the trust property], payable annually or at more frequent intervals, with power in the surviving spouse to appoint . . . such specific portion. . . . [Footnote 1]"At the date of decedent's death, the value of the trust corpus created by his will was $69,246. The will provided that his widow should receive $300 per month until decedent's youngest child reached 18, and $350 per month thereafter. If the trust income were insufficient, corpus could be invaded to make the specified payments; if income exceeded the monthly amount, it was to be accumulated. Page 387 U. S. 216 The widow was given power to appoint the entire corpus by will. [Footnote 2]On decedent's estate tax return, his executor reported an adjusted gross estate of $199,750. The executor claimed the maximum marital deduction of one-half the gross estate, $99,875, on the ground that qualified interests passing to the wife exceeded that amount. The value of the property which passed to the widow outright was $41,751. To this, the executor added the full value of the trust, $69,246. The Commissioner, however, determined that the trust did not qualify for the marital deduction because the widow's right to the income of the trust was not expressed as a "fractional or percentile share" of the total trust income, as the Treasury Regulation, § 20.2056(b)-5(c), requires. Accordingly, the Commissioner Page 387 U. S. 217 reduced the amount of the allowable deduction to $41,751. The resulting deficiency in estate tax was paid, a claim for refund was disallowed, the executor sued in District Court for refund, and the District Judge gave summary judgment for the executor. On appeal, the Court of Appeals for the Third Circuit, sitting en banc, reversed, with three judges dissenting. Because of an acknowledged conflict between the decision of the Third Circuit in this case and that of the Seventh Circuit in United States v. Citizens National Bank of Evansville, 359 F.2d 817, petition for certiorari pending, No. 488, October Term, 1966, [Footnote 3] we granted certiorari. 385 U.S. 967. We reverse. Page 387 U. S. 218The basis for the Commissioner's disallowance lay in Treasury Regulation § 20.2056(b)-5(c). This interpretative Regulation purports to define "specific portion" as it is used in § 2056(b)(5) of the Code:"A partial interest in property is not treated as a specific portion of the entire interest unless the rights of the surviving spouse in income . . . constitute a fractional or percentile share of a property interest. . . ."The Regulation specifically provides that "if the annual income of the spouse is limited to a specific sum . . . , the interest is not a deductible interest." [Footnote 4] If this Regulation properly implements the Code, the trust in this case plainly fails to qualify for the marital deduction. We hold, however, that, in the context of this case, the Regulation improperly restricts the scope of the congressionally granted deduction.In the District Court, the executor initially claimed that the entire trust qualified for the marital deduction simply because, at the time of trial, the corpus had not yet produced an income in excess of $300 per month, and that the widow was therefore entitled "to all the income from the entire interest." The District Court rejected this contention, observing that the income from Page 387 U. S. 219 the corpus could exceed $300 per month, and, in that event, the excess would have to be accumulated. The executor's alternative claim, which the District Court accepted, was that the "specific portion" of the trust corpus whose income would amount to $300 per month could be computed, and a deduction allowed for that amount. [Footnote 5]Resolution of the question in this case, whether a qualifying "specific portion" can be computed from the monthly stipend specified in a decedent's will, is essentially a matter of discovering the intent of Congress. The general history of the marital deduction is well known. See United States v. Stapf, 375 U. S. 118, 375 U. S. 128 (1963). The deduction was enacted in 1948, and the underlying purpose was to equalize the incidence of the estate tax in community property and common law jurisdictions. Under a community property system, a surviving spouse takes outright ownership of half of the community property, which therefore is not included in the deceased spouse's estate. The marital deduction allows transfer of up to one-half of non-community property to the surviving spouse free of the estate tax. Congress, however, allowed the deduction even when the interest transferred is less than the outright ownership which community property affords. In "recognition of one of the customary modes of transfer of property in common law States," [Footnote 6] the 1948 statute provided that a bequest in trust, with the surviving spouse"entitled for life to all the income from the corpus of the trust, payable annually or at more frequent intervals, with power . . . Page 387 U. S. 220 to appoint the entire corpus [Footnote 7]"would qualify for the deduction.The 1948 legislation required that the bequest in trust entitle the surviving spouse to "all the income" from the trust corpus, and grant a power to appoint the "entire corpus." These requirements were held by several lower courts to disqualify for the deduction a single trust in which the surviving spouse was granted a right to receive half (for example) of the income and to appoint half of the corpus. [Footnote 8] Since there was no good reason to require a testator to create two separate trusts -- one for his wife, the other for his children, for example, -- Congress in 1954 revised the marital deduction provision of the statute to allow the deduction where a decedent gives his surviving spouse "all the income from the entire interest, or all the income from a specific portion thereof" and a power to "appoint the entire interest, or such specific portion." The House Report on this change states that"The bill makes it clear that . . . a right to income plus a general power of appointment over only an undivided part of the property will qualify that part of the property for the marital deduction. [Footnote 9]"The Senate Report contains identical language. [Footnote 10] There is no indication in the legislative history of the change from which one could conclude that Congress -- in using the words "all the income from a specific portion" in the statute, or the equivalent words "a right to income . . . over . . . an Page 387 U. S. 221 undivided part" in the committee reports -- intended that the deduction afforded would be defeated merely because the "specific portion" or the "undivided part" as not expressed by the testator in terms of a "fractional or percentile share" of the whole corpus. [Footnote 11]Congress' intent to afford a liberal "estate-splitting" possibility to married couples, where the deductible half of the decedent's estate would ultimately -- if not consumed -- be taxable in the estate of the survivor, is unmistakable. Indeed, in § 93 of the Technical Amendments Act of 1958, 72 Stat. 1668, Congress made "The more realistic rules of the 1954 Code" apply retroactively to the original enactment of the marital deduction in 1948, and opened the statute of limitations to allow refunds or credits for overpayments. [Footnote 12] Plainly such a provision should not be construed so as to impose unwarranted restrictions upon the availability of the deduction. Yet the Government insists that, even where there are well established principles for computing the principal required to produce the monthly stipend provided for in a trust, a "specific portion" cannot be determined in that way. The "specific portion" must, the Government urges, be expressed in the trust as a fractional or percentile share of the total corpus. The spouse of a testator whose will provides for a specific monthly stipend is deprived of any benefit from the marital deduction, according to the Government's view. But we can find no warrant for that Page 387 U. S. 222 narrow view in common sense or in the statute and its history.The Government puts most of its reliance upon a phrase which occurred once in the legislative history of the 1948 enactment. The Senate Report stated that the marital deduction would be available"where the surviving spouse, by reason of her [sic] right to the income and a power of appointment, is the virtual owner of the property. [Footnote 13]"The Government's argument is that the deduction was intended only in cases where the equivalent of the outright ownership of a community property State was granted, and that this is what the Senate Report meant by the words "virtual owner." Actually, however, the words were not used in that context at all. The section of the Report from which those words derive deals with the rule that, with minor exceptions, the marital deduction does not apply where any person other than the surviving spouse has any power over the income or corpus of the trust. It is in this sense that the Report described the surviving spouse as a "virtual owner." Hence, the Government's argument that only a grant of the income from a fractional or percentile share subjects the surviving spouse to the vagaries and fluctuations of the economic performance of the corpus in the way an outright owner would be is simply irrelevant. There is no indication whatsoever that Congress intended the deduction to be available only in such a situation, nor is there any apparent connection between the purposes of the deduction and such a limitation on its availability. Compare Gelb v. Commissioner, 298 F.2d 544, 550-551 (C.A.2d Cir.1962). Obviously Congress did not intend the deduction to be available only with respect to interests equivalent to outright ownership, or trusts would not have been permitted to qualify at all. [Footnote 14] Page 387 U. S. 223The Court of Appeals advanced a somewhat different argument in support of the Government's conclusion. Without relying upon the validity of the Regulation, the Court of Appeals maintained that a "specific portion" can be found only where there is an acceptable method of computing it, and that no such method is available in a case of the present sort. The Court of Appeals noted that the computation must produce the "ratio between the maximum monthly income [producible by the whole corpus] and the monthly stipend [provided for in the trust]." 363 F.2d 476, 484. The following example was given:"If the investment factors involved were constant and it could be determined that the maximum income that could be produced from the corpus in a month was, for example, $500, then the relationship between the $300 monthly stipend and the $500 maximum income would define 'specific portion' for marital deduction purposes, i.e.: ""$300 being 3/5 of $500, then 3/5 of $69,245.85 would be the 'specific portion' of the trust corpus from which the surviving spouse would be entitled to the entire income of $300 monthly under maximum production circumstances.""Though in reality it might take the entire corpus to produce the monthly stipend, or even the necessity to invade corpus might be present, nevertheless . . . it could be said, after computing the theoretical maximum income, that the surviving spouse's income interest of $300 monthly represented the investment of 3/5 of the corpus. 'Specific portion' would then be accurately defined for marital deduction purposes."(Italics in original.) 363 F.2d at 484, n. 17. Page 387 U. S. 224The Court of Appeals concluded, however, that the computation could not be made because "[t]he market conditions for purposes of investment are unknown," and, therefore, there are no constant investment factors to use in computing the maximum possible monthly income of the whole corpus. 363 F.2d at 484.It is with this latter conclusion that we disagree. To be sure, perfect prediction of realistic future rates of return [Footnote 15] is not possible. However, the use of projected rates of return in the administration of the federal tax laws is hardly an innovation. Cf. Gelb v. Commissioner, 298 F.2d 544, 551, n. 7 (C.A.2d Cir.1962). It should not be a difficult matter to settle on a rate of return available to a trustee under reasonable investment conditions, which could be used to compute the "specific portion" of the corpus whose income is equal to the monthly stipend provided for in the trust. As the Court of Appeals for the Second Circuit observed in Gelb, supra,"the use of actuarial tables for dealing with estate tax problems has been so widespread and of such long standing that we cannot assume Congress would have balked at it here; the United States is in business with enough different taxpayers so that the law of averages has ample opportunity to work."298 F.2d at 551-552.The Government concedes, as it must, that application of a projected rate of return to determine the "specific portion" of the trust corpus whose income is equal to the monthly stipend allotted will not result in any of the combined marital estate escaping ultimate taxation in either the decedent's or the surviving spouse's estate. The Government argues, however, that, if analogous Page 387 U. S. 225 actuarial methods were used to compute as a fixed dollar amount the "specific portion" as to which a qualifying power of appointment is given, where the power, in fact, granted extends to the whole corpus but the corpus is subject to measurable invasions for the benefit, for example, of a child, the result, in some cases, would be to enable substantial avoidance of estate tax. Whether, properly viewed, the Government's claim holds true, and, if so, what effect that should have upon the qualification of such a trust, is a difficult matter. Needless to say, nothing we hold in this opinion has reference to that quite different problem, which is not before us. Cf. Gelb v. Commissioner, supra.The District Court used an annuity valuation approach to compute the "specific portion." This was incorrect. The question, as the Court of Appeals recognized, is to determine the amount of the corpus required to produce the fixed monthly stipend, not to compute the present value of the right to monthly payments over an actuarially computed life expectancy. Accordingly, we reverse and remand for further proceedings in conformity with this opinion.Reversed

U.S. Supreme CourtNortheastern Pa. Nat'l Bank v. United States, 387 U.S. 213 (1967)Northeastern Pennsylvania National Bank & Trust. Co. v.United StatesNo. 637Argued March 20, 1967Decided May 22, 1967387 U.S. 213SyllabusDecedent's will established a bequest in trust to provide for monthly payments of $300 to his widow. If the trust income were insufficient, the corpus could be invaded to make the specified payments, excess income was to be accumulated, and the widow was given power to appoint the entire corpus by will. On decedent's estate tax return, his executor claimed the marital deduction of one-half the gross estate, including therein the value of the trust corpus. The Commissioner of Internal Revenue determined that the trust did not qualify for the deduction because the widow's right to income was not expressed as a "fractional or percentile share" of the total trust income, as required by Treas.Reg. § 20.2056(b)5(c), which interprets 26 U.S.C. § 2056(b)(5). That provision, inter alia, qualifies for the deduction an interest where the surviving spouse is entitled for life to all the income from a "specific portion" of the trust corpus, with power in the surviving spouse to appoint such specific portion. The executor sued for a refund which the District Court granted on the basis that the "specific portion" of the trust whose income would amount to $300 per month could be computed and a deduction allowed for that amount, notwithstanding the Regulation. The Court of Appeals reversed.Held:1. "Resolution of the question in this case, whether a qualifying "specific portion" can be computed from the monthly stipend specified in a decedent's will, is essentially a matter of discovering the intent of Congress." In the legislative history of the marital deduction,"There is no indication whatsoever that Congress intended the deduction only to be available [where the 'specific portion' is expressed as a 'fractional or percentile share'], nor is there any apparent connection between the purposes of the deduction and such a limitation on its availability."Pp. 387 U. S. 219-222.2."The Court of Appeals concluded . . . that the computation [of a 'specific portion' from the monthly stipend] could Page 387 U. S. 214 not be made because '[t]he market conditions for purposes of investment are unknown' and, therefore, there are no constant investment factors to use in computing the maximum possible monthly income of the whole corpus."However, while"perfect prediction of realistic future rates of return is not possible, . . . the use of projected rates of return in the administration of the federal tax laws is hardly an innovation. . . . It should not be a difficult matter to settle on a rate of return available to a trustee under reasonable investment conditions. . . ."Pp. 387 U. S. 223-224.3. Such computation of a "specific portion" as to which a right to income is given "will not result in any of the combined marital estate escaping ultimate taxation in either the decedent's or the surviving spouse's estate." The possibly different situation in the case of a power of appointment is not involved here. Pp. 387 U. S. 224-225.4. The "specific portion" must be determined on the basis of"the amount of the corpus required to produce the fixed monthly stipend, not . . . the present value of the right to monthly payments over an actuarially computed life expectancy."Since the latter method was used by the District Court, the case is remanded for further proceedings. P. 387 U. S. 225.363 F.2d 476, reversed and remanded.

1982_82-502

JUSTICE MARSHALL delivered the opinion of the Court.Under § 33(b) of the Longshoremen's and Harbor Workers' Compensation Act, an injured longshoreman who accepts Page 461 U. S. 531 "compensation under an award in a compensation order" has six months in which to file a negligence action against a third party, after which time the longshoreman's cause of action is irrevocably assigned to his employer. This case presents the question whether a longshoreman's acceptance of voluntary compensation payments gives rise to an assignment under § 33(b)IOn May 19, 1975, respondent Joseph Duris fell from a ladder and was injured while working as a longshoreman aboard the M/V Regent Botan at the Port of Toledo, Ohio. At the time of the accident, the vessel was chartered by Erato Shipping, Inc. Duris' employer, Toledo Overseas Terminal, Inc., did not contest his right to compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). On June 2, 1975, the employer filed Form LS-206, entitled "Payment of Compensation Without Award," with the Department of Labor. The document indicated the employer's agreement to commence payments to Duris in the amount of $149.14 every two weeks. Payments to Duris continued for nearly two years. On April 26, 1977, the company terminated the payment of benefits by filing Form LS-208, labeled "Compensation Payment Stopped or Suspended."On February 19, 1980, Duris commenced this action in the District Court for the Northern District of Ohio to recover for injuries suffered as a result of the accident aboard the M/V Regent Botan. An amended complaint named petitioner Pallas Shipping Agency, Ltd., as a defendant. Petitioner is a successor of Erato Shipping, Inc., the company which chartered the M/V Regent Botan. Duris alleged that the bareboat charterer had been negligent in maintaining the ladder from which he fell. The District Court dismissed respondent's claim for failure to establish in personam jurisdiction. Page 461 U. S. 532The Court of Appeals reversed. Duris v. Erato Shipping, Inc., 684 F.2d 352 (CA6 1982). After concluding that personal jurisdiction could properly be asserted over petitioner based on the acts of its predecessor corporation, the court considered the question whether the lapse of six months after Duris' acceptance of voluntary compensation payments triggered an assignment of his claim under § 33(b). The court held that, in the absence of a formal compensation order or award entered by the Secretary of Labor, an employee's acceptance of compensation payments cannot lead to an assignment of his right of action against third parties. In reaching this conclusion, the Court of Appeals declined to follow the decision of the Court of Appeals for the Fourth Circuit in Liberty Mutual Ins. Co. v. Ameta & Co., 564 F.2d 1097 (1977). We granted certiorari to resolve this intercircuit conflict, 459 U.S. 1014 (1982), and we now affirm.IIThe Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C. § 901 et seq. (1976 ed. and Supp. V), provides a comprehensive scheme governing the rights of an injured longshoreman. If, as is generally true in cases in which a longshoreman files a claim under the Act, his employer does not contest liability, the employer must pay compensation to the disabled longshoreman within two weeks of learning of his injury, 33 U.S.C. § 914; 20 CFR §§ 702.231-702.232 (1982), and must file an appropriate form, Form LS-206, with the Deputy Commissioner in the Department of Labor. 33 U.S.C. § 914; 20 CFR § 702.234 (1982).When an employer controverts a compensation claim or the injured longshoreman contests actions taken by the employer with respect to his claim, the dispute may be resolved in administrative proceedings. 33 U.S.C. § 919 (1976 ed. and Supp. V). If the dispute cannot be resolved informally under procedures developed by the Department of Labor, 20 Page 461 U. S. 533 CFR §§ 702.301-702.319 (1982), the contested claim will proceed to a formal hearing, which culminates in the entry of an order by the Deputy Commissioner "reject[ing] the claim or mak[ing] an award in respect of the claim." 33 U.S.C. §§ 919(c), 919(e). [Footnote 1] An order making an award, referred to as "a compensation order," 33 U.S.C. § 919(e), is reviewable by the Benefits Review Board, 33 U.S.C. § 921(b) (1976 ed. and Supp. V), and enforceable in federal court. 33 U.S.C. § 921(d). An employer's failure to make timely payments under a compensation order results in a substantial penalty. 33 U.S.C. § 914(f).Although workers' compensation generally constitutes a longshoreman's exclusive recovery from his employer, a longshoreman who accepts compensation does not thereby relinquish any claim against the shipowner, charterer, or other third party. 33 U.S.C. § 933(a). Under § 33(b) of the Act, however, a longshoreman who accepts "compensation under an award in a compensation order" must sue the third party within six months, or not at all. If the employee fails to bring suit within this period, his cause of action is irrevocably assigned to his employer. See Rodriguez v. Compass Shipping Co., 451 U. S. 596 (1981). Section 33(b) provides in full:"Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against Page 461 U. S. 534 such third person within six months after such award."44 Stat. 1440, as amended, 33 U.S.C. § 933(b). Petitioner contends that the voluntary payment of compensation benefits to Duris, along with the filing of Forms LS-206 and LS-208 with the Department of Labor, constituted an "award in a compensation order" which resulted in an assignment of Duris' claim to his employer when he failed to bring suit within the next six months.We disagree. Section 33(b) triggers an assignment of an injured longshoreman's cause of action against a third party only after he has accepted compensation "under an award in a compensation order filed by the deputy commissioner or Board." (Emphasis added.) The term "compensation order" in the LHWCA refers specifically to an administrative award of compensation following proceedings with respect to the claim. 33 U.S.C. § 919(e). [Footnote 2] In this case, no administrative proceedings ever took place, and no award was ever ordered by the Deputy Commissioner.Petitioner correctly points out that Duris' employer filed Forms LS-206 and LS-208, as required by 33 U.S.C. § 914(c), to "notify the deputy commissioner . . . that payment of compensation has begun or has been suspended." But such filings are distinguishable from compensation orders in form, function, and legal effect: they are not issued by the Deputy Commissioner; they are neither administratively reviewable nor judicially enforceable; and the failure to make timely payments pursuant to the agreement embodied in Form LS-206 results in a less substantial penalty than a failure to comply with the terms of a compensation order. Page 461 U. S. 535 33 U.S.C. §§ 914(e), (f). [Footnote 3] Nothing in the Act suggests that the filing of these forms is equivalent to "an award in a compensation order."The history of the LHWCA confirms that "a compensation order" was not intended to include a document testifying to an employer's voluntary payment of compensation under the Act. This statutory language was first incorporated into § 33(b) when the LHWCA was amended in 1938. [Footnote 4] As we described in Bloomer v. Liberty Mutual Ins. Co., 445 U. S. 74, 445 U. S. 79 (1980): Page 461 U. S. 536"[T]he Act [as originally enacted in 1927] required a longshoreman to choose between the receipt of a compensation award from his employer and a damages suit against the third party. Act of Mar. 4, 1927, § 33, 44 Stat. 1440. If the longshoreman elected to receive compensation, his right of action was automatically assigned to his employer. In 1938, however, Congress provided that, in cases in which compensation was not made pursuant to an award by a deputy commissioner . . . , the longshoreman would not be required to choose between the compensation award and an action for damages. Under the 1938 amendments, no election was required unless compensation was paid pursuant to such an award. See Act of June 25, 1938, ch. 685, §§ 12, 13, 52 Stat. 1168."The requirement of a formal award was designed to protect the longshoreman from the unexpected loss of his rights against a negligent third party, and to permit him to make a considered choice among available remedies. As the House Committee explained:"Acceptance of compensation without knowledge of the effect upon such rights may work grave injustice. The assignment of this right of action against the third party might properly be contingent upon the acceptance of compensation under an award in a compensation order issued by the deputy commissioner, thus giving opportunity to the injured person . . . to consider the acceptance of compensation from the employer with the resultant loss of right to bring suit in damages against the third party. . . ."H.R.Rep. No.1945, 75th Cong., 3d Sess., 9 (1938). Thus, as this Court recognized in American Stevedores, Inc. v. Porello, 330 U. S. 446, 330 U. S. 454-456 (1947), Congress clearly did not contemplate that the mere acceptance of compensation Page 461 U. S. 537 benefits, in the absence of an award by the Deputy Commissioner, would trigger an immediate assignment of the longshoreman's claim against third persons, for such voluntary payments would not adequately apprise the longshoreman of the election of remedies.In 1959, Congress eliminated the harsh election of remedies requirement. [Footnote 5] As amended, § 33(b) allows a longshoreman to bring a suit against a third party within six months after accepting payments under "an award in a compensation order." There is no indication, however, that Congress intended to alter this statutory language governing the prerequisites for an assignment of the longshoreman's right of action. To the contrary, Congress indicated that its aim in amending § 33 was "to continue the current judicial construction" of the retained portions of the provision. 105 Cong.Rec. 9226 (1959). As noted above, this Court had previously concluded in American Stevedores, Inc. v. Poello, supra, that an assignment occurred under § 33(b) only after a longshoreman accepted an award by the Deputy Commissioner.Moreover, the Act continues to equate a "compensation order" with the formal document filed by the Deputy Commissioner at the conclusion of administrative proceedings, as it has since the LHWCA was enacted. See §§ 19, 21-22, 44 Stat. 1435-1437. Finally, limiting § 33(b) to formal compensation orders continues to serve the underlying congressional Page 461 U. S. 538 purposes even though the statute no longer requires an immediate election of remedies. Service of the compensation order puts the longshoreman on notice that his acceptance of future compensation payments will result in the irrevocable assignment of his claims, albeit not immediately, but six months later. Of equal importance, the requirement of a formal compensation order enhances an injured longshoreman's opportunity to make a well-considered decision whether to bring an action against a third party by allowing him to delay his decision until the amount of compensation to which he is entitled under the Act is clearly established in a judicially enforceable order.Petitioner contends that the requirement of a formal compensation order prior to the assignment of an injured longshoreman's claims will frustrate the Act's aims of ensuring prompt payment to injured workers and of relieving claimants and their employers of the undue expense and administrative burden of litigating compensation claims. It is said that employers who desire to seek indemnification from the negligent third party will be encouraged to contest their liability in order to obtain a compensation order instead of making voluntary payments. We do not find this contention persuasive. Employers are not required to contest their liability in order to obtain a formal compensation award. Department of Labor regulations permit an employer who makes voluntary payments to obtain a compensation order upon request if there is no disagreement among the parties. 20 CFR § 702.315(a) (1982). Moreover, even without a statutory assignment of the longshoreman's claims, an employer can seek indemnification from negligent third parties for payments it has made to the longshoreman. See Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U. S. 404 (1969); Crescent Wharf & Warehouse Co. v. Barracuda Tanker Corp., 696 F.2d 703 (CA9 1983). For these reasons, the employer who seeks to bring an action against a shipowner, Page 461 U. S. 539 charterer, or other third person has little to gain from contesting his liability to the longshoreman under the LHWCA.We therefore conclude that respondent's acceptance of voluntary compensation payments did not constitute "[a]cceptance of such compensation under an award in a compensation order" so as to give rise to the assignment of respondent's claims against third persons. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtPallas Shipping Agcy., Ltd. v. Duris, 461 U.S. 529 (1983)Pallas Shipping Agency, Ltd. v. DurisNo. 82-502Argued April 25, 1983Decided May 23, 1983461 U.S. 529SyllabusUnder § 33(b) of the Longshoremen's and Harbor Workers' Compensation Act (Act), an injured longshoreman who accepts "compensation under an award in a compensation order filed by the deputy commissioner or [Benefits Review] Board" has six months in which to file a negligence action against a third party, after which time the longshoreman's cause of action is irrevocably assigned to his employer. Respondent was injured while working as a longshoreman aboard a vessel that had been chartered by petitioner's predecessor corporation. Respondent's employer (another company) did not contest his right to compensation under the Act, and filed a form (Form LS-206) with the Labor Department indicating the employer's agreement to make payments to respondent. Approximately 23 months later, the employer terminated the payment of benefits by filing another form (Form LS-208) with the Department. Respondent subsequently filed suit in Federal District Court to recover for his injuries, alleging that they had been caused by the vessel charterer's negligence. The District Court dismissed the claim for lack of jurisdiction. The Court of Appeals reversed, holding that jurisdiction could properly be asserted over petitioner and that, in the absence of a formal compensation order or award entered by the Secretary of Labor, an employee's acceptance of compensation payments could not lead to an assignment of his right of action against third parties.Held: Respondent's acceptance of voluntary compensation payments did not constitute acceptance of compensation "under an award in a compensation order" so as to give rise to the assignment of his claims against third parties under § 33(b). Pp. 461 U. S. 532-539.(a) Under the Act's comprehensive scheme governing the rights of an injured longshoreman, the term "compensation order" refers specifically to an administrative award of compensation. Here, no administrative proceedings ever took place. Although respondent's employer, as required by the Act, filed Forms LS-206 and LS-208 relating to voluntary payment of compensation, nothing in the Act suggests that the filing of the forms is equivalent to an "award in a compensation order." Pp. 461 U. S. 532-535.(b) The Act's history confirms that "a compensation order" does not include a document testifying to an employer's voluntary payment of compensation under the Act. The requirement of a formal award was Page 461 U. S. 530 designed to protect the longshoreman from the unexpected loss of his rights against a negligent third party by acceptance of voluntary compensation payments, and to permit him to make a considered choice among available remedies. Cf. Bloomer v. Liberty Mutual Ins. Co., 445 U. S. 74; American Stevedores, Inc. v. Porello, 330 U. S. 446. Pp. 461 U. S. 535-538.(c) The requirement of a formal compensation order prior to the assignment of an injured longshoreman's claims does not frustrate the Act's aims of ensuring prompt payment to injured workers and of relieving claimants and their employers of the undue expense and administrative burden of litigating compensation claims. Under Labor Department regulations, employers who desire to seek indemnification from a negligent third party may make voluntary compensation payments and obtain a compensation order upon request if there is no disagreement among the parties. Moreover, even without a statutory assignment of the longshoreman's claims, an employer can seek indemnification from negligent third parties for payments it has made to the longshoreman. Thus, an employer who seeks to bring an action against a shipowner, charterer, or other third person has little to gain from contesting his liability to the longshoreman under the Act. Pp. 461 U. S. 538-539.684 F.2d 352, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court.

1985_85-140

JUSTICE WHITE delivered the opinion of the Court.In August, 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing Page 478 U. S. 188 sodomy [Footnote 1] by committing that act with another adult male in the bedroom of respondent's home. After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. [Footnote 2] He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution. The District Court granted the defendants' motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth's Attorney for the City of Richmond, 403 F. Supp. 1199 (ED Va.1975), which this Court summarily affirmed, 425 U.S. 901 (1976). Page 478 U. S. 189A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F.2d 1202 (1985). The court first held that, because Doe was distinguishable and, in any event, had been undermined by later decisions, our summary affirmance in that case did not require affirmance of the District Court. Relying on our decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 410 U. S. 113 (1973), the court went on to hold that the Georgia statute violated respondent's fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was remanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case, [Footnote 3] we granted the Attorney General's petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals. We agree with petitioner that the Court of Appeals erred, and hence reverse its judgment. [Footnote 4] Page 478 U. S. 190This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate.We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U. S. 678, 431 U. S. 685 (1977). Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923), were described as dealing with childrearing and education; Prince v. Massachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virginia, 388 U. S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U. S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 431 U. S. 688-689.Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the Page 478 U. S. 191 claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U.S. at 431 U. S. 688, n. 5, 431 U. S. 694, n. 17.Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that, despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325, 302 U. S. 326 (1937), it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither Page 478 U. S. 192 liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494, 431 U. S. 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition." Id. at 431 U. S. 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S. at 381 U. S. 506.It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U.Miami L.Rev. 521, 525 (1986). Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. [Footnote 5] In 1868, when the Fourteenth Amendment was Page 478 U. S. 193 ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. [Footnote 6] In fact, until 1961, [Footnote 7] all 50 States outlawed sodomy, and today, 24 States and the District of Columbia Page 478 U. S. 194 continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U.Miami L.Rev. supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation Page 478 U. S. 195 of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U. S. 557 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one's home:"If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch."Id. at 394 U. S. 565.Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id. at 394 U. S. 568, n. 11. And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct Page 478 U. S. 196 while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis. [Footnote 8]Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtBowers v. Hardwick, 478 U.S. 186 (1986)Bowers v. HardwickNo. 85-140Argued March 31, 1986Decided June 30, 1986478 U.S. 186SyllabusAfter being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.Held: The Georgia statute is constitutional. Pp. 478 U. S. 190-196.(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 478 U. S. 190-191.(b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Pp. 478 U. S. 191-194.(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 478 U. S. 194-195.(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U. S. 557, distinguished. Pp. 478 U. S. 195-196.(e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 478 U. S. 196.760 F.2d 1202, reversed. Page 478 U. S. 187WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., post, p. 478 U. S. 196, and POWELL, J., post, p. 478 U. S. 197, filed concurring opinions. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 478 U. S. 199. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 478 U. S. 214.

2002_01-270

charged" is zero and must remain zero. To allow States to disavow their reciprocity agreements so as to alter any fee charged or collected as of November 15, 1991, would potentially permit States to increase their revenues substantially under the new system, a result that the ICC quite reasonably believed Congress did not intend. The Court rejects respondents' arguments that Congress intended for each State to set a single, uniform fee; that the ICC could not add a constraint not within the statute's express language; and that the ICC's rule contravenes the fee-cap provision by limiting what a State can charge based on what was collected from or charged to a particular carrier. Pp.45-48.464 Mich. 21, 627 N. W. 2d 236, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p.48.Charles A. Rothfeld argued the cause for petitioner.With him on the briefs were Evan M. Tager, Robert L. Bronston, John W Bryant, and R. Ian Hunter.Austin C. Schlick argued the cause for the United States as amicus curiae in support of petitioner. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Wallace, Michael Jay Singer, Bruce G. Forrest, Kirk K. Van Tine, Paul M. Geier, Dale C. Andrews, and Laura C. Fentonmiller.Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondents. With him on the briefs were Jennifer M. Granholm, Attorney General, Susan 1. Leffler, Assistant Solicitor General, and David A. Voges and Henry J. Boynton, Assistant Attorneys General. *JUSTICE O'CONNOR delivered the opinion of the Court. We granted certiorari in this case, 534 U. S. 1112 (2002), to determine whether the Michigan Supreme Court erred in* Roy T. Englert, Jr., Sherri Lynn Wolson, Beth L. Law, and Robert Digges, Jr., filed a brief for the American Trucking Associations, Inc., et al. as amici curiae urging reversal.39holding that, under 49 U. S. C. § 14504(c)(2)(B)(iv)(III), only a State's "generic" fee is relevant to determining the fee that was "collected or charged as of November 15, 1991."I ABeginning in 1965, Congress authorized States to require interstate motor carriers operating within their borders to register with the State proof of their Interstate Commerce Commission (ICC) interstate operating permits. Pub. L. 89-170, 79 Stat. 648, 49 U. S. C. § 302(b)(2) (1970 ed.). Congress provided that state registration requirements would not constitute an undue burden on interstate commerce so long as they were consistent with regulations promulgated by the I CC. Ibid.Prior to 1994, the ICC allowed States to charge interstate motor carriers annual registration fees of up to $10 per vehicle. See 49 CFR § 1023.33 (1992). As proof of registration, participating States would issue a stamp for each of the carrier's vehicles. § 1023.32. The stamp was affixed on a "uniform identification cab car[d]" carried in each vehicle, within the square bearing the name of the issuing State. §§ 1023.32(d)-(e). This system came to be known as the "bingo card" system. Single State Insurance Registration, 9 1. C. C. 2d 610 (1993).The "bingo card" regime proved unsatisfactory to many who felt that the administrative burdens it placed on carriers and participating States outweighed the benefits to those States and to the public. H. R. Rep. No. 102-171, pt. I, p. 49 (1991); H. R. Conf. Rep. No. 102-404, pp. 437-438 (1991). In the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress therefore directed the ICC to implement a new system to replace the "bingo card" regime. **Congress abolished the ICC in 1995 and assigned responsibility for administering the new Single State Registration System to the Secretary of Transportation. See ICC Termination Act of 1995, Pub. L. 104-88,40See Pub. L. 102-240, § 4005, 105 Stat. 1914, 49 U. S. C. § 11506(c) (1994 ed.). Under the new system, called the Single State Registration System, "a motor carrier [would be] required to register annually with only one State," and "such single State registration [would] be deemed to satisfy the registration requirements of all other States." §§ 11506(c)(1)(A) and (C). Thus, one State would-on behalf of all other participating States-register a carrier's vehicles, file and maintain paperwork, and collect and distribute registration fees. § 11506(c)(2)(A). Participation in the Single State Registration System was limited to those States that had elected to participate in the "bingo card" system. § 11506(c)(2)(D).ISTEA also capped the per-vehicle registration fee that participating States could charge interstate motor carriers. Congress directed the I CC to"establish a fee system ... that (I) will be based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates, (II) will minimize the costs of complying with the registration system, and (III) will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991." § 11506(c)(2)(B)(iv).Congress provided that the charging or collection of any fee not in accordance with the ICC's fee system would "be deemed to be a burden on interstate commerce." § 11506(c)(2)(C).§ 101, 109 Stat. 803. The provisions of ISTEA governing the system were amended and recodified. See 49 U. S. C. § 14504(c). The Federal Highway Administration, under the Secretary of Transportation, adopted the ICC regulations that implemented the Single State Registration System, 61 Fed. Reg. 54706, 54707 (1996), and the Federal Motor Carrier Safety Administration now has authority to administer the system, 49 U. S. C. § 113(f)(1).41The ICC issued its final implementing regulations in May 1993 after notice-and-comment proceedings. Single-State Insurance Registration, supra. The rulemaking gave rise to the central question in this case: whether, under the Single State Registration System, States were free to terminate "reciprocity agreements" that were in place under the "bingo card" regime. Id., at 617-619. Under these agreements, in exchange for reciprocal treatment, some States discounted or waived registration fees for carriers from other States. Id., at 617.In issuing a set of proposed rules and soliciting further comments, the ICC questioned whether it had the power to require States to preserve pre-existing reciprocity agreements. Single State Insurance Registration, No. MC-l00 (Sub-No.6), 1993 WL 17833, *12 (Jan. 22, 1993); see Single State Insurance Registration-1993 Rules, 9 1. C. C. 2d 1, 11 (1992). It noted that these agreements were voluntary and mutually beneficial and commented that "as long as no carrier is charged more than [a State's] standard November 15, 1991, fee for all carriers (subject to the $10 limit), the requirements of [ISTEA] are satisfied." 1993 WL 17833, *12.In its final implementing regulations, however, the ICC concluded, in light of further comments, that its preliminary view on reciprocity agreements was inconsistent with ISTEA's fee-cap provision and with "the intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced." Single State Insurance Registration, 9 1. C. C. 2d, at 618. The agency therefore determined that States participating in the Single State Registration System "must consider fees charged or collected under reciprocity agreements when determining the fees charged or collected as of November 15, 1991, as required by § 11506(c)(2)(B)(iv)." Id., at 618-619; see also American Trucking Associations-Petition for Declaratory Order-Single State Insurance Registration, 9 1. C. C. 2d 1184, 1192, 1194-1195 (1993). The42National Association of Regulatory Utility Commissioners (NARUC) and 18 state regulatory commissions sought review of the ICC's determination and certain provisions of the Single State Registration System regulations. NARUC v. ICC, 41 F.3d 721 (1994). The United States Court of Appeals for the District of Columbia concluded that the plain language of the statute supported the ICC's determination that States participating in the new system must consider reciprocity agreements under 49 U. S. C. § 11506(c)(2)(B)(iv). 41 F. 3d, at 729.BPrior to the implementation of the Single State Registration System, Michigan had participated in the "bingo card" regime. See App. 5 (Affidavit of Thomas R. Lonergan, Director, Motor Carrier Regulation Division of the Michigan Public Service Commission ~ 3e) (hereinafter Lonergan Affidavit). The Michigan Legislature had directed the Michigan Public Service Commission to levy an annual registration fee of $10 per vehicle on interstate motor carrier vehicles and simultaneously endowed the commission with authority to "enter into a reciprocal agreement with a state." Mich. Compo Laws Ann. §478.7(4) (West 1988). Pursuant to such reciprocal agreements, the commission was empowered to "waive the fee [otherwise] required." Ibid.Petitioner in this case is an interstate trucking company headquartered in Kansas. For calendar years 1990 and 1991, the Michigan Public Service Commission did not levy a fee for petitioner's trucks that were licensed in Illinois pursuant to its policy "not to charge a fee to carriers with vehicles registered in states ... which did not charge Michiganbased carriers a fee." App. 6 (Lonergan Affidavit ~ 3i). In 1991, however, the Michigan Public Service Commission announced a change in its reciprocity policy to take effect on February 1, 1992. Under the new policy, the commission granted reciprocity treatment based on the policies of the State in which a carrier maintained its principal place of43business rather than the State in which individual vehicles were licensed. Because Michigan had no reciprocal arrangement with Kansas, the Michigan Public Service Commission sent petitioner a bill in September 1991, levying a fee of $10 per vehicle for the 1992 registration year on petitioner's entire fleet, with payment due on January 1, 1992.Petitioner paid the fees in October 1991 under protest and later brought suit in the Michigan Court of Claims seeking a refund of the fees it paid for its Illinois-licensed vehicles after the Single State Registration System came into effect. See 49 U. S. C. § 11506(c)(3) (1994 ed.) (setting effective date of January 1, 1994). Petitioner alleged that, because Michigan had not "collected or charged" a fee for the 1991 registration year for trucks licensed in Illinois, ISTEA's fee-cap provision prohibits Michigan from levying a fee on Illinoislicensed trucks.On cross motions for summary disposition, the Michigan Court of Claims ruled in favor of petitioner. Yellow Freight System, Inc. v. Michigan, No. 95-15706-CM (Mar. 13, 1996) (Yellow Freight System I). The Court of Claims' holding relied on an ICC declaratory order in which the agency held that ISTEA's fee-cap provision caps fees at the level "collected or charged" for registration year 1991, not those fees levied for registration year 1992 in advance of the statutory cutoff date. Id., at 3-4; see American Trucking Associations, supra, at 1192, 1195.The Michigan Court of Appeals affirmed on similar grounds. Yellow Freight System, Inc. v. Michigan, 231 Mich. App. 194, 585 N. W. 2d 762 (1998) (Yellow Freight System II). The Court of Appeals also rejected Michigan's argument that States need not consider reciprocity agreements in determining the level of fees "charged or collected as of November 15, 1991," noting that the ICC had determined reciprocity agreements must be considered, and that the agency's decision had been upheld in NARUC v. ICC, supra.44Yellow Freight System II, supra, at 202-203, 585 N. W. 2d, at 766.The Michigan Supreme Court reversed. Yellow Freight System, Inc. v. Michigan, 464 Mich. 21, 627 N. W. 2d 236 (2001) (Yellow Freight System III). The court concluded that "reciprocity agreements are not relevant in determining what fee [a State] 'charged or collected' as of November 15, 1991." Id., at 33, 627 N. W. 2d, at 242. The court expressly rejected the District of Columbia Circuit's contrary conclusion. Id., at 29,627 N. W. 2d, at 240 (citing NARUC v. ICC, supra). The Court applied Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), but determined that the statute unambiguously forbids the ICC's interpretation. Yellow Freight System III, 464 Mich., at 29-31, 627 N. W. 2d, at 240-241. Reasoning that "[t]he new 'fee system' is based not on the fees collected from one individual company, but on the fee system that the state had in place on November 15, 1991," the court concluded that "[w]e must look not at the fees paid by [petitioner] in any given year, but at the generic fee Michigan charged or collected from carriers as of November 15, 1991." Id., at 31, 627 N. W. 2d, at 241 (emphasis added). Two justices dissented, finding ISTEA's fee-cap provision ambiguous, the ICC's construction reasonable, and deference therefore due. Id., at 33-43, 627 N. W. 2d, at 242-247 (opinions of Kelly and Cavanagh, JJ.).The Michigan Supreme Court did not consider respondents' argument that the fees petitioner paid Michigan for the 1992 registration year were "collected or charged as of November 15, 1991." 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Nor did that court reach the question whether Michigan had "canceled its reciprocity agreements with other States in 1989." Brief for United States as Amicus Curiae 23. The only issue before this Court, therefore, is whether States may charge motor carrier registration fees in excess of those charged or collected under reciprocity agreements as of November 15, 1991.45IINeither party disputes that Chevron, supra, governs the interpretive task at hand. In ISTEA, Congress made an express delegation of authority to the ICC to promulgate standards for implementing the new Single State Registration System. 49 U. S. C. § 11506(c)(1) (1994 ed.). The ICC did so, interpreting ISTEA's fee-cap provision subsequent to a notice-and-comment rulemaking. See United States v. Mead Corp., 533 U. S. 218, 229 (2001) ("[A] very good indicator of delegation meriting Chevron treatment [is an] express congressional authorizatio[n] to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed"). The Federal Highway Administration adopted the ICC's regulations, see supra, at 39, n., and the Single State Registration System is now administered by the Federal Motor Carrier Safety Administration. 49 U. S. C. § 113.Accordingly, the question before us is whether the text of the statute resolves the issue, or, if not, whether the ICC's interpretation is permissible in light of the deference to be accorded the agency under the statutory scheme. If the statute speaks clearly "to the precise question at issue," we "must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U. S., at 842-843. If the statute is instead "silent or ambiguous with respect to the specific issue," we must sustain the agency's interpretation if it is "based on a permissible construction of the statute." Id., at 843; see Barnhart v. Walton, 535 U. S. 212, 217-218 (2002).ISTEA's fee-cap provision does not foreclose the ICC's determination that fees charged under States' pre-existing reciprocity agreements were, in effect, frozen by the new Single State Registration System. The provision requires that the new system "result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991." 49 U. S. C. § 14504(c)(2)(B)(iv)(III). The language "collected or46charged" can quite naturally be read to mean fees that a State actually collected or charged. The statute thus can easily be read as the ICC chose, making it unlawful "for a State to renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of November 15, 1991, under the predecessor registration system." American Trucking Associations, 9 1. C. C. 2d, at 1194; see Single State Insurance Registration, 9 1. C. C. 2d, at 618-619.The Michigan Supreme Court held that the language of ISTEA's fee-cap provision compels a different result. Although it acknowledged that ISTEA is silent with respect to reciprocity agreements, the court nonetheless concluded that the fee-cap provision mandates that those agreements have no bearing in the determination of what fee a State "collected or charged" as of November 15,1991. Yellow Freight System III, 464 Mich., at 31, 627 N. W. 2d, at 241. The court reasoned that the Single State Registration System was "based not on the fees collected from one individual company, but on the fee system that the state had in place." Ibid. (emphasis added). While such a reading might be reasonable, nothing in the statute compels that particular result.The fee-cap provision refers not to a "fee system," but to the "fee ... collected or charged." 49 U. S. C. § 14504(c)(2)(B)(iv)(III). Under the ICC's rule, where a State waives its registration fee, its "fee ... collected or charged" is zero and must remain zero. The I CC's interpretation is a permissible reading of the language of the statute. And, because there is statutory ambiguity and the agency's interpretation is reasonable, its interpretation must receive deference. See Chevron, supra, at 843.As commenters to the ICC during the rulemaking pointed out, to allow States to disavow their reciprocity agreements so as to alter any fee charged or collected as of November 15, 1991, would potentially permit States to increase their revenues substantially under the new system, a result that the ICC quite reasonably believed Congress did not intend.47See Single State Insurance Registration, 9 1. C. C. 2d, at 618. The ICC concluded that its rule best served the "intent of the law that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced." Ibid. The agency considered that allowing States to disavow reciprocity agreements and charge a single, uniform fee might reduce administrative burdens, but expressed concern that carriers' registration costs, and state revenues, would balloon. Ibid. (noting that some carriers' fees "assertedly could increase as much as 900%," and that one commenter presented a "worst case scenario" in which "State revenues could increase from $50 million to $200 million").Respondents argue that Congress intended for each State to set a single, uniform fee. While such a mandate would, indeed, have simplified the new system, it is not compelled by the language of the statute, which instructs the ICC to implement a system under which States charge a fee, not to exceed $10 per vehicle, that is equal to the fee such States "collected or charged as of November 15, 1991."Respondents also contend that, by freezing the fees charged under reciprocity agreements as part of the fee cap, the ICC added a constraint not within the express language of the statute. The Michigan Supreme Court expressed a similar concern, stating that "[i]t is not for the ICC ... to insert words into the statute." 464 Mich., at 32, 627 N. W. 2d, at 241-242. It was precisely Congress' command, however, that the ICC promulgate standards to govern the Single State Registration System, 49 U. S. C. § 11506(c) (1994 ed.), and it was thus for that agency to resolve any ambiguities and fill in any holes in the statutory scheme. See Mead Corp., supra, at 229; Chevron, supra, at 843-844. To hold States to the fees they actually collected or charged seems to us a reasonable interpretation of the statute's command that state fees be "equal to the fee, not to exceed $10 per48STEVENS, J., concurring in judgmentvehicle, that such State collected or charged as of November 15, 1991." 49 U. S. C. § 14504(c)(2)(B)(iv)(III).Respondents argue that the ICC's rule contravenes ISTEA's fee-cap provision by limiting what a State can charge based on what was collected from or charged to a particular carrier. Respondents point out that the focus of the provision is on the actions of the State, not the actions of any particular carrier. While we agree that the statute focuses on what States "collected or charged" rather than what particular carriers paid, we do not agree that the ICC's rule focuses the inquiry on the latter. Under the "bingo card" regime, States entered into reciprocity agreements that waived or reduced fees charged to particular categories of vehicles. The ICC's rule does not necessarily cap the aggregate fee paid by any particular carrier; rather, it simply requires States to preserve fees at the levels they actually collected or charged pursuant to reciprocity agreements in place as of November 15, 1991.Because the ICC's interpretation of ISTEA's fee-cap provision is consistent with the language of the statute and reasonably resolves any ambiguity therein, see Chevron, 467 U. S., at 843, the Michigan Supreme Court erred in declining to enforce it.The judgment is therefore reversed, and the case is remanded to the Michigan Supreme Court for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusYELLOW TRANSPORTATION, INC. v. MICHIGAN ETAL.CERTIORARI TO THE SUPREME COURT OF MICHIGANNo. 01-270. Argued October 7, 2002-Decided November 5, 2002Prior to 1994, the Interstate Commerce Commission (ICC) allowed States to charge interstate motor carriers operating within their borders annual registration fees of up to $10 per vehicle. As proof of registration, participating States issued stamps that were affixed to a card carried in each vehicle. Under this so-called "bingo card" system, some States entered into "reciprocity agreements" whereby, in exchange for reciprocal treatment, they discounted or waived registration fees for carriers from other States. In the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Congress directed the ICC to replace the "bingo card" regime with a new system, the "Single State Registration System," under which a carrier's annual registration with one State that had participated in the "bingo card" system would be deemed to satisfy the registration requirements of all other such States. ISTEA also capped state registration fees by directing the ICC to "establish a fee system ... that ... will result in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991." 49 U. S. C. § 11506(c)(2)(B)(iv)(III) (1994 ed.), amended and recodified in § 14504(c)(2)(B)(iv)(III). In its final implementing regulations, the ICC ruled that, under the new system, States could not terminate the reciprocity agreements that were in place under the "bingo card" regime. To allow them to do so, the ICC decided, would be inconsistent with ISTEA's fee-cap provision and with the Act's intent that the flow of revenue for the States be maintained while the burden of the registration system for carriers be reduced.Michigan participated in the "bingo card" regime. For the 1990 and 1991 registration years, the Michigan Public Service Commission did not levy a fee for petitioner's trucks that were licensed in Illinois pursuant to its policy not to charge a fee for vehicles registered in other States that did not charge Michigan-based carriers a fee. In 1991, however, the commission announced a change in its policy, effective February 1, 1992, whereby the commission granted reciprocity treatment based on the policies of the State in which a carrier maintained its principal place of business rather than the State in which individual vehicles were licensed. Because Michigan had no reciprocal arrangement with Kansas,37where petitioner was headquartered, the Michigan commission levied a fee of $10 per vehicle for the 1992 registration year on petitioner's entire fleet, with payment due on January 1, 1992. After paying the fees in October 1991 under protest, petitioner brought suit in the Michigan Court of Claims seeking a refund of the fees it paid for its Illinoislicensed vehicles after the Single State Registration System came into effect. It alleged that, because Michigan had not "collected or charged" a 1991 registration fee for those trucks, ISTEA's fee-cap provision prohibits Michigan from levying a fee for them. The court granted petitioner summary judgment, and the Michigan Court of Appeals affirmed. The Michigan Supreme Court reversed, concluding that reciprocity agreements are not relevant in determining what fee a State "charged or collected" as of November 15, 1991. Applying Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, the court determined that the statute unambiguously forbids the ICC's interpretation. Reasoning that the new fee system is based not on the fees collected from one individual company, but on the fee system that the State had in place on November 15, 1991, the court concluded that it must look not at the fees petitioner paid in any given year, but at the generic fee Michigan charged or collected from carriers as of November 15, 1991.Held: The Michigan Supreme Court erred in holding that, under § 14504(c)(2)(B)(iv)(III), only a State's "generic" fee is relevant to determining the fee that was "collected or charged as of November 15, 1991." States may not renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of that date. Because the ICC's interpretation of ISTEA's fee-cap provision is a permissible reading of the statutory language and reasonably resolves ambiguity therein, the ICC's interpretation must receive deference under Chevron, supra, at 843, and the Michigan Supreme Court erred in declining to enforce it. The fee-cap provision does not foreclose the ICC's determination that fees charged under States' pre-existing reciprocity agreements were, in effect, frozen by the new Single State Registration System. The statutory language "collected or charged" can quite naturally be read to mean fees that a State actually collected or charged. The statute can easily be read as the ICC chose, making it unlawful for a State to renounce or modify a reciprocity agreement so as to alter any fee charged or collected as of November 15, 1991. While the Michigan Supreme Court's reading of the statute might be reasonable, nothing in the statute compels that particular result. The fee-cap provision refers not to a "fee system," but to the "fee ... collected or charged." Under the ICC's rule, where a State waives its registration fee, its "fee ... collected or38Full Text of Opinion

1961_78

MR. JUSTICE CLARK delivered the opinion of the Court.The Town of Hempstead has enacted an ordinance regulating dredging and pit excavating on property within its limits. Appellants, who engaged in such operations Page 369 U. S. 591 prior to the enactment of the ordinance, claim that it in effect prevents them from continuing their business, and therefore takes their property without due process of law in violation of the Fourteenth Amendment. The trial court held that the ordinance was a valid exercise of the town's police power, 19 Misc.2d 176, 186 N.Y.S.2d 577, and the Appellate Division affirmed, 9 A.D.2d 941, 196 N.Y.S.2d 573. The New York Court of Appeals, in a divided opinion, affirmed. 9 N.Y.2d 101, 211 N.Y.S.2d 185, 172 N.E.2d 562. We noted probable jurisdiction, 366 U.S. 942, and, having heard argument, we now affirm the judgment.Appellant Goldblatt owns a 38-acre tract within the Town of Hempstead. At the time of the present litigation, appellant Builders Sand and Gravel Corporation was mining sand and gravel on this lot, a use to which the lot had been put continuously since 1927. Before the end of the first year, the excavation had reached the water table, leaving a water-filled crater which has been widened and deepened to the point that it is now a 20-acre lake with an average depth of 25 feet. The town has expanded around this excavation, and today, within a radius of 3,500 feet, there are more than 2,200 homes and four public schools with a combined enrollment of 4,500 pupils.The present action is but one of a series of steps undertaken by the town in an effort to regulate mining excavations within its limits. A 1945 ordinance, No. 16, provided that such pits must be enclosed by a wire fence and comply with certain berm and slope requirements. Although appellants complied with this ordinance, the town sought an injunction against further excavation as being violative of a zoning ordinance. This failed because appellants were found to be "conducting a prior nonconforming use on the premises. . . ." 135 N.Y.L.J., issue 52, p. 12 (1956). The town did not appeal. Page 369 U. S. 592In 1958, the town amended Ordinance No. 16 to prohibit any excavating below the water table [Footnote 1] and to impose an affirmative duty to refill any excavation presently below that level. The new amendment also made the berm, slope, and fence requirements more onerous.In 1959, the town brought the present action to enjoin further mining by the appellants on the grounds that they had not complied with the ordinance, as amended, nor acquired a mining permit as required by it. [Footnote 2] Appellants contended, inter alia, that the ordinance was unconstitutional because (1) it was not regulatory of their business, but completely prohibitory, and confiscated their property without compensation, (2) it deprived them of the benefit of the favorable judgment arising from the previous zoning litigation, and (3) it constituted ex post facto legislation. However, the trial court did not agree, and the appellants were enjoined from conducting further operations on the lot until they had obtained a permit and had complied with the new provisions of Ordinance No. 16.Concededly the ordinance completely prohibits a beneficial use to which the property has previously been devoted. However, such a characterization does not tell us whether or not the ordinance is unconstitutional. It is an oft-repeated truism that every regulation necessarily speaks as a prohibition. If this ordinance is otherwise a valid exercise of the town's police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional. Walls v. Midland Carbon Co., 254 U. S. 300 (1920); Hadacheck v. Sebastian, 239 U.S. Page 369 U. S. 593 394 (1915); Reinman v. Little Rock, 237 U. S. 171 (1915); Mugler v. Kansas, 123 U. S. 623 (1887); see Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 (1910). As pointed out in Mugler v. Kansas, supra, at 123 U. S. 668-669:"[T]he present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community cannot in any just sense be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by anyone for certain forbidden purposes is prejudicial to the public interests. . . . The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community."Nor is it of controlling significance that the "use" prohibited here is of the soil itself, as opposed to a "use" upon the soil, cf. United States v. Central Eureka Mining Co., 357 U. S. 155 (1958), or that the use prohibited is arguably not a common law nuisance, e.g., Reinman v. Little Rock, supra. Page 369 U. S. 594This is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922); see United States v. Central Eureka Mining Co., supra. There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is by no means conclusive, see Hadacheck v. Sebastian, supra, where a diminution in value from $800,000 to $60,000 was upheld. How far regulation may go before it becomes a taking we need not now decide, for there is no evidence in the present record which even remotely suggests that prohibition of further mining will reduce the value of the lot in question. [Footnote 3] Indulging in the usual presumption of constitutionality, infra, p. 369 U. S. 596, we find no indication that the prohibitory effect of Ordinance No. 16 is sufficient to render it an unconstitutional taking if it is otherwise a valid police regulation.The question, therefore, narrows to whether the prohibition of further excavation below the water table is a valid exercise of the town's police power. The term "police power" connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of "reasonableness," this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U. S. 133, 152 U. S. 137 (1894), is still valid today:"To justify the state in . . . interposing its authority in behalf of the public, it must appear -- first, that Page 369 U. S. 595 the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals."Even this rule is not applied with strict precision, for this Court has often said that "debatable questions as to reasonableness are not for the courts but for the Legislature. . . ." E.g., Sproles v. Binford, 286 U. S. 374, 286 U. S. 388 (1932).The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss which appellants will suffer from the imposition of the ordinance.A careful examination of the record reveals a dearth of relevant evidence on these points. One fair inference arising from the evidence is that, since a few holes had been burrowed under the fence surrounding the lake, it might be attractive and dangerous to children. But there was no indication whether the lake as it stood was an actual danger to the public, or whether deepening the lake would increase the danger. In terms of dollars or some other objective standard, there was no showing how much, if anything, the imposition of the ordinance would cost the appellants. In short, the evidence produced is clearly indecisive on the reasonableness of prohibiting further excavation below the water table.Although one could imagine that preventing further deepening of a pond already 25 feet deep would have a de minimis effect on public safety, we cannot say that such a conclusion is compelled by facts of which we can take notice. Even if we could draw such a conclusion, Page 369 U. S. 596 we would be unable to say the ordinance is unreasonable; for all we know, the ordinance may have a de minimis effect on appellants. Our past cases leave no doubt that appellants had the burden on "reasonableness." E.g., Bibb v. Navajo Freight Lines, 359 U. S. 520, 359 U. S. 529 (1959) (exercise of police power is presumed to be constitutionally valid); Salsburg v. Maryland, 346 U. S. 545, 346 U. S. 553 (1954) (the presumption of reasonableness is with the State); United States v. Carolene Products Co., 304 U. S. 144, 304 U. S. 154 (1938) (exercise of police power will be upheld if any state of facts either known or which could be reasonably assumed affords support for it). This burden not having been met, the prohibition of excavation on the 20-acre lake tract must stand as a valid police regulation.We now turn our attention to the remainder of the lot, the 18 acres surrounding the present pit which have not yet been mined or excavated. Appellants themselves contend that this area cannot be mined. They say that this surface space is necessary for the processing operations incident to mining, and that no other space is obtainable. This was urged as an important factor in their contention that upholding the depth limitation of the ordinance would confiscate the entire mining utility of their property. However, we have upheld the validity of the prohibition even on that supposition. If the depth limitation in relation to deepening the existing pit is valid, it follows a fortiori that the limitation is constitutionally permissible as applied to prevent the creation of new pits. We also note that, even if appellants were able to obtain suitable processing space, the geology of the 18-acre tract would prevent any excavation. The water table, appellants admit, is too close to the ground surface to permit commercial mining in the face of the depth restrictions of the ordinance. The impossibility of further mining Page 369 U. S. 597 makes it unnecessary for us to decide to what extent the berm and slope of such excavation could be limited by the ordinance.Appellants' other contentions warrant only a passing word. The claim that rights acquired in previous litigation are being undermined is completely unfounded. A successful defense to the imposition of one regulation does not erect a constitutional barrier to all other regulation. The first suit was brought to enforce a zoning ordinance, while the present one is to enforce a safety ordinance. In fact, no relevant issues presented here were decided in the first suit. [Footnote 4] We therefore do not need to consider to what extent such issues would have come under the protective wing of due process.Appellants also contend that the ordinance is unconstitutional because it imposes, under penalty of fine and imprisonment, such affirmative duties as refilling the existing excavation and the construction of a new fence. This claim is founded principally on the constitutional prohibitions against bills of attainder and ex post facto legislation. [Footnote 5] These provisions are severable, both in nature and by express declaration, from the prohibition against further excavation. Since enforcement of these provisions was not sought in the present litigation, this Court, under well established principles, will not at this time undertake to decide their constitutionality. E.g., Ohio Tax Cases, 232 U. S. 576, 232 U. S. 594 (1914); cf. United States v. Raines, 362 U. S. 17 (1960). That Page 369 U. S. 598 determination must await another day. We pass only on the provisions of the ordinance here invoked, not on probabilities not now before us, and, to that extent, the judgment is affirmed.Affirmed

U.S. Supreme CourtGoldblatt v. Town of Hempstead, 369 U.S. 590 (1962)Goldblatt v. Town of HempsteadNo. 78Argued January 15-16, 1962Decided ay 14, 1962369 U.S. 590SyllabusThe individual appellant owned a 38-acre tract within the Town of Hempstead on which the corporate appellant had been mining sand and gravel continuously since 1927. During the first year, the excavation reached the water table, leaving a water-filled crater which had since been widened and deepened until it became a 20-acre lake with an average depth of 25 feet, around which the Town had expanded until, within a radius of 3,500 feet, there were more than 2,200 homes and 4 public schools with a combined enrollment of 4,500 pupils. In 1958, the Town amended its ordinance regulating such excavations so as to prohibit any excavating below the water table. Although this concededly prohibited the beneficial use to which the property had previously been devoted, a state court granted the Town an injunction to enforce this prohibition.Held: on the record in this case, appellants have not sustained the burden of showing that the depth limitation is so onerous and unreasonable as to result in a taking of their property without due process of law in violation of the Fourteenth Amendment. Pp. 369 U. S. 590-598.9 N.Y.2d 101, 172 N.E.2d 562, affirmed.

1962_392

Opinion of the Court by MR. JUSTICE STEWART, announced by MR. JUSTICE WHITE.This case comes to us on appeal from the Supreme Court of New Mexico. One of the appellants, Agnes K. Head, owns a newspaper in Hobbs, New Mexico. The other appellant, Permian Basin Radio Corporation, owns and operates a radio station there. Hobbs is in the southeastern corner of the State, close to the Texas border, and much of the area served by both the radio station and the newspaper lies in Texas. The appellants were enjoined from accepting or publishing within the State of New Mexico a Texas optometrist's advertising found to be in violation of New Mexico law. The appellants claim that the state law, as applied, imposes an unlawful burden on interstate commerce. Permian also argues that regulation of advertising by radio has been preempted by the Communications Act of 1934. [Footnote 1] We noted probable jurisdiction, 371 U.S. 900, and invited the Solicitor General to express the Government's views concerning the question of federal preemption. We have concluded that the judgment should be affirmed.Section 67-7-13 of the New Mexico Statutes Annotated deals generally with the practice of optometry. It prohibits Page 374 U. S. 426 several varieties of unauthorized practice, and forbids even licensed practitioners from employing certain sales techniques, such as house-to-house canvassing, peddling on streets or highways, or offering lenses and frames as premiums. [Footnote 2] It also prohibits:"(m) Advertising by any means whatsoever the quotation of any prices or terms on eyeglasses, spectacles, lenses, frames, or mountings, or which quotes discount to be offered on eyeglasses, spectacles, lenses, frames, or mountings, or which quotes 'moderate prices,' 'low prices,' 'lowest prices,' 'guaranteed glasses,' 'satisfaction guaranteed,' or words of similar import."The purpose of this provision, according to the Supreme Court of New Mexico, is to"protect . . . citizens against the evils of price advertising methods tending to satisfy the needs of their pocketbooks, rather than the remedial requirements of their eyes."70 N.M. 90, 94, 370 P.2d 811, 813. Similar laws have been enacted in many States to assure high standards of professional competence. [Footnote 3] Page 374 U. S. 427The facts stated in the complaint were not disputed. Appellants received and published advertisements from Abner Roberts, an optometrist who resided and conducted his business in the State of Texas, just a few miles east of Hobbs. In the words of the complaint, this advertising consisted of "the quotation of prices on eyeglasses and spectacles, and of the quotation of discounts to be offered on eyeglasses and spectacles." The appellants conceded that the advertising violated § 67-7-13(m). Finding the statute applicable and violated, the trial court enjoined each of the appellants"from accepting or publishing within the State of New Mexico advertising of any nature from Abner Roberts which quotes prices or terms on eyeglasses . . . or which quotes moderate prices, low prices, lowest prices, guaranteed glasses, satisfaction guaranteed, or words of similar import. . . ."The Supreme Court of New Mexico affirmed, ruling that the injunction did not unlawfully burden interstate commerce and that the State's jurisdiction had not been ousted by federal legislation. 70 N.M. 90, 370 P.2d 811.IWithout doubt, the appellants' radio station and newspaper are engaged in interstate commerce, and the injunction in this case has unquestionably imposed some Page 374 U. S. 428 restraint upon that commerce. But these facts alone do not add up to an unconstitutional burden on interstate commerce. As we said in Huron Portland Cement Co. v. City of Detroit, 362 U. S. 440, upholding the application of a Detroit smoke abatement ordinance to ships engaged in interstate and international commerce:"In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when""conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.""Sherlock v. Alling, 93 U. S. 99, 93 U. S. 103; Austin v. Tennessee, 179 U. S. 343; Louisville & Nashville R. Co. v. Kentucky, 183 U. S. 503; The Minnesota Rate Cases. 230 U. S. 352; Boston & Maine R. Co. v. Armburg, 285 U. S. 234; Collins v. American Buslines, Inc., 350 U. S. 528."362 U.S. at 362 U. S. 443-444.Like the smoke abatement ordinance in the Huron case, the statute here involved is a measure directly addressed to protection of the public health, and the statute thus falls within the most traditional concept of what is compendiously known as the police power. [Footnote 4] The legitimacy of state legislation in this precise area has been expressly established. Williamson v. Lee Optical Co., 348 U.S. Page 374 U. S. 429 483. A state law may not be struck down on the mere showing that its administration affects interstate commerce in some way."State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand."Huron Portland Cement Co. v. City of Detroit, supra, at 362 U. S. 448.It has not been suggested that the statute, applicable alike to "any person" within the State of New Mexico, discriminates against interstate commerce as such. Nor can we find that the legislation impinges upon an area of interstate commerce which, by its nature, requires uniformity of regulation. The appellants have pointed to no regulations of other States imposing conflicting duties, nor can we readily imagine any. Colorado Anti-Discrimination Comm'n v. Continental Air Lines, 372 U. S. 714. We hold that the New Mexico statute, as applied here to prevent the publication in New Mexico of the proscribed price advertising, does not impose a constitutionally prohibited burden upon interstate commerce. [Footnote 5]IIIn dealing with the contention that New Mexico's jurisdiction to regulate radio advertising has been preempted by the Federal Communications Act, we may begin by noting that the validity of this claim cannot be judged by reference to broad statements about the "comprehensive" nature of federal regulation under the Federal Communications Page 374 U. S. 430 Act. [Footnote 6]"[T]he 'question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case.' Statements concerning the 'exclusive jurisdiction' of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive."California v. Zook, 336 U. S. 725, 336 U. S. 731. Kelly v. Washington, 302 U. S. 1, 302 U. S. 10-13. In areas of the law not inherently requiring national uniformity, [Footnote 7] our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found"such actual conflict between the two schemes of regulation that both cannot stand in the same area, [or] evidence of a congressional design to preempt the field."Florida Lime and Avocado Growers v. Paul, 373 U. S. 132, 373 U. S. 141.The specific provisions of the federal statute chiefly relied upon the support Permian's claim are those governing the granting, renewal, and revocation of broadcasting licenses. [Footnote 8] Under the broad standard of "public interest, convenience, and necessity," the Federal Communications Commission may consider a wide variety of factors in passing upon the fitness of an applicant. It is argued that the content of advertising is one of the factors which may be considered, and there is evidence that the Commission Page 374 U. S. 431 itself has, on occasion, so interpreted its authority. [Footnote 9] Further, the United States argues that the Commission has the authority to promulgate general regulations concerning the subject of advertising for the guidance of broadcasters. See Federal Communications Comm'n v. American Broadcasting Co., 347 U. S. 284, 347 U. S. 289-290. This grant of federal power, it is argued, is sufficient to oust state regulation of radio advertising.Assuming this to be a correct statement of the Commission's authority, we are nevertheless not persuaded that the federal legislation in this field has excluded the application of a state law of the kind here involved. The nature of the regulatory power given to the federal agency convinces us that Congress could not have intended its grant of authority to supplant all the detailed state regulation of professional advertising practices, particularly when the grant of power to the Commission was accompanied by no substantive standard other than the "public interest, convenience, and necessity." [Footnote 10] The Solicitor General has conceded that the power of license revocation is not a plausible substitute for state law dealing with "traditional" torts or crimes committed through the use of radio. We can find no material difference with respect to the less "traditional" statutory violation here involved. In the absence of Page 374 U. S. 432 positive evidence of legislative intent to the contrary, we cannot believe Congress has ousted the States from an area of such fundamentally local concern.Finally, there has been no showing of any conflict between this state law and the federal regulatory system, or that the state law stands as an obstacle to the full effectiveness of the federal statute. No specific federal regulations even remotely in conflict with the New Mexico law have been called to our attention. The Commission itself has apparently viewed state regulation of advertising as complementing its regulatory function, rather than in any way conflicting with it. [Footnote 11] As in Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U. S. 714, at 372 U. S. 724, we are satisfied that the state statute, "at least so long as any power the [Commission] may have remains "dormant and unexercised," will not frustrate any part of the purpose of the federal legislation." [Footnote 12]Affirmed

U.S. Supreme CourtHead v. New Mexico Board of Exam'rs, 374 U.S. 424 (1963)Head v. New Mexico Board of Examiners in OptometryNo. 392Argued April 15-16, 1963Decided June 17, 1963374 U.S. 424SyllabusOne of the appellants owns a newspaper, and the other a radio station, in New Mexico close to the Texas border, and much of the area served by both the newspaper and the radio station lies in Texas. Both appellants were enjoined by a New Mexico State Court from accepting or publishing within the State of New Mexico a Texas optometrist's advertising found to be in violation of a New Mexico statute regulating advertising by optometrists. The Supreme Court of New Mexico affirmed.Held:1. The New Mexico statute, as applied here to prevent the publication in New Mexico of the proscribed advertising, does not impose a constitutionally prohibited burden on interstate commerce. Pp. 374 U. S. 427-429.2. New Mexico's jurisdiction to regulate professional advertising practices in the manner here involved has not been preempted with respect to radio advertising by the Federal Communications Act. Pp. 374 U. S. 429-432.3. The statute here involved does not deprive appellants of property without due process of law or violate their privileges and immunities of national citizenship contrary to the Fourteenth Amendment. P. 374 U. S. 432, n. 12.4. Appellants' contention that the injunction constitutes an invalid restraint upon freedom of speech protected by the Fourteenth Amendment is not properly before this Court, since it was not made in the state courts or reserved in the notice of appeal to this Court. P. 433, n 12.70 N.M. 90, 370 P.2d 811, affirmed. Page 374 U. S. 425

1956_211

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner union entered into a collective bargaining agreement in 1953 with respondent employer, the agreement to run one year and from year to year thereafter, unless terminated on specified notices. The agreement provided that there would be no strikes or work stoppages, and that grievances would be handled pursuant to a specified procedure. The last step in the grievance procedure -- a step that could be taken by either party was arbitration.This controversy involves several grievances that concern work loads and work assignments. The grievances were processed through the various steps in the grievance procedure, and were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon the union brought this suit in the District Court to compel arbitration.The District Court concluded that it had jurisdiction, and ordered the employer to comply with the grievance arbitration provisions of the collective bargaining agreement. The Court of Appeals reversed by a divided vote. 230 F.2d 81. It held that, although the District Court had jurisdiction to entertain the suit, the court had no authority founded either in federal or state law to grant the relief. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and the contrariety of views in the courts. 352 U.S. 821.The starting point of our inquiry is § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C. § 185, which provides:"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, as Page 353 U. S. 450 defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.""(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets."There has been considerable litigation involving § 301, and courts have construed it differently. There is one view that § 301(a) merely gives federal district courts jurisdiction in controversies that involve labor organizations in industries affecting commerce, without regard to diversity of citizenship or the amount in controversy. [Footnote 1] Under that view, § 301(a) would not be the source of substantive law; it would neither supply federal law to resolve these controversies nor turn the federal judges to state law for answers to the questions. Other courts -- the overwhelming number of them -- hold that § 301(a) is Page 353 U. S. 451 more than jurisdictional [Footnote 2] -- that it authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements, and includes within that federal law specific performance of promises to arbitrate grievances under collective bargaining agreements. Perhaps the leading decision representing that point of view is the one rendered by Judge Wyzanski in Textile Workers Union v. American Thread Co., 113 F. Supp. 137. That is our construction of § 301(a), which means that the agreement to arbitrate grievance disputes, contained in this collective bargaining agreement, should be specifically enforced.From the face of the Act, it is apparent that § 301(a) and § 301(b) supplement one another. Section 301(b) makes it possible for a labor organization, representing employees in an industry affecting commerce, to sue and be sued as an entity in the federal courts. Section 301(b), in other words, provides the procedural remedy lacking at common law. Section 301(a) certainly does something more than that. Plainly, it supplies the basis Page 353 U. S. 452 upon which the federal district courts may take jurisdiction and apply the procedural rule of § 301(b). The question is whether § 301(a) is more than jurisdictional.The legislative history of § 301 is somewhat cloudy and confusing. But there are a few shafts of light that illuminate our problem.The bills, as they passed the House and the Senate, contained provisions which would have made the failure to abide by an agreement to arbitrate an unfair labor practice. S.Rep. No. 105, 80th Cong., 1st Sess., pp. 20 21, 23; H.R.Rep. No. 245, 80th Cong., 1st Sess., p. 21. [Footnote 3] This feature of the law was dropped in Conference. As the Conference Report stated,"Once parties have made a collective bargaining contract, the enforcement of that contract should be left to the usual processes of the law, and not to the National Labor Relations Board."H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., p. 42. Page 353 U. S. 453Both the Senate and the House took pains to provide for "the usual processes of the law" by provisions which were the substantial equivalent of § 301(a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions, as well as employees, should be bound to collective bargaining contracts. But there was also a broader concern a concern with a procedure for making such agreements enforceable in the courts by either party. At one point, the Senate Report, supra, p. 15, states,"We feel that the aggrieved party should also have a right of action in the Federal courts. Such a policy is completely in accord with the purpose of the Wagner Act, which the Supreme Court declared was""to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made. . . ."Congress was also interested in promoting collective bargaining that ended with agreements not to strike. [Footnote 4] Page 353 U. S. 454 The Senate Report, supra, p. 16 states:"If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not, by itself, promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract.""Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce."Thus, collective bargaining contracts were made "equally binding and enforceable on both parties." Id., p. 15. As stated in the House Report, supra, p. 6, the new provision"makes labor organizations equally responsible with employers for contract violations and provides for suit by either against the other in the United States district courts."To repeat, the Senate Report, supra, p. 17, summed up the philosophy of § 301 as follows:"Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace. "Page 353 U. S. 455Plainly, the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the federal courts over labor organizations. It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations, and that industrial peace can be best obtained only in that way.To be sure, there is a great medley of ideas reflected in the hearings, reports, and debates on this Act. Yet, to repeat, the entire tenor of the history indicates that the agreement to arbitrate grievance disputes was considered as quid pro quo of a no-strike agreement. And when in the House the debate narrowed to the question whether § 301 was more than jurisdictional, it became abundantly clear that the purpose of the section was to provide the necessary legal remedies. Section 302 of the House bill, [Footnote 5] the substantial equivalent of the present § 301, was being described by Mr. Hartley, the sponsor of the bill in the House:"Mr. BARDEN. Mr. Chairman, I take this time for the purpose of asking the Chairman a question, and, in asking the question I want it understood that it is intended to make a part of the record that may hereafter be referred to as history of the legislation.""It is my understanding that section 302, the section dealing with equal responsibility under collective bargaining contracts in strike actions and proceedings Page 353 U. S. 456 in district courts contemplates not only the ordinary lawsuits for damages, but also such other remedial proceedings, both legal and equitable, as might be appropriate in the circumstances; in other words, proceedings could, for example, be brought by the employers, the labor organizations, or interested individual employees under the Declaratory Judgments Act in order to secure declarations from the Court of legal rights under the contract.""Mr. HARTLEY. The interpretation the gentleman has just given of that section is absolutely correct."93 Cong.Rec. 3656 3657.It seems, therefore, clear to us that Congress adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes, [Footnote 6] by implication rejecting the common law rule, discussed in Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, against enforcement of executory agreements to arbitrate. [Footnote 7] We would undercut the Act and defeat its policy if we read § 301 narrowly as only conferring jurisdiction over labor organizations.The question, then is what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Page 353 U. S. 457 Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction, but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners v. United States, 308 U. S. 343, 308 U. S. 351. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U. S. 101, 318 U. S. 104. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. See Board of Commissioners v. United States, supra, at 308 U. S. 351 352. Any state law applied, however, will be absorbed as federal law, and will not be an independent source of private rights.It is not uncommon for federal courts to fashion federal law where federal rights are concerned. See Clearfield Trust Co. v. United States, 318 U. S. 363, 318 U. S. 366-367; National Metropolitan Bank v. United States, 323 U. S. 454. Congress has indicated by § 301(a) the purpose to follow that course here. There is no constitutional difficulty. Article III, § 2, extends the judicial power to cases "arising under . . . the Laws of the United States. . . ." The power of Congress to regulate these labor-management controversies under the Commerce Clause is plain. Houston & Texas R. Co. v. United States, 234 U. S. 342; Labor Board v. Jones & Laughlin Corp., 301 U. S. 1. A case or controversy arising under § 301(a) is, therefore, one within the purview of judicial power as defined in Article III.The question remains whether jurisdiction to compel arbitration of grievance disputes is withdrawn by the Page 353 U. S. 458 Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101. Section 7 of that Act prescribes stiff procedural requirements for issuing an injunction in a labor dispute. The kinds of acts which had given rise to abuse of the power to enjoin are listed in § 4. The failure to arbitrate was not a part and parcel of the abuses against which the Act was aimed. Section 8 of the Norris-LaGuardia Act does, indeed, indicate a congressional policy toward settlement of labor disputes by arbitration, for it denies injunctive relief to any person who has failed to make "every reasonable effort" to settle the dispute by negotiation, mediation, or "voluntary arbitration." Though a literal reading might bring the dispute within the terms of the Act (see Cox, Grievance Arbitration in the Federal Courts, 67 Harv.L.Rev. 591, 602-604), we see no justification in policy for restricting § 301(a) to damage suits, leaving specific performance of a contract to arbitrate grievance disputes to the inapposite [Footnote 8] procedural requirements of that Act. Moreover, we held in Virginia R. Co. v. System Federation, 300 U. S. 515, and in Graham v. Brotherhood of Firemen, 338 U. S. 232, 338 U. S. 237, that the Norris-LaGuardia Act does not deprive federal courts of jurisdiction to compel compliance with the mandates of the Railway Labor Act. The mandates there involved concerned racial discrimination. Yet those decisions were not based on any peculiarities of the Railway Labor Act. We followed the same course in Syres v. Oil Workers International Union, 350 U.S. 892, which was governed by the National Labor Relations Act. There, an injunction was sought against racial discrimination in application of a collective bargaining agreement, and we allowed the injunction to issue. The congressional policy in favor of the enforcement of agreements to arbitrate Page 353 U. S. 459 grievance disputes being clear, [Footnote 9] there is no reason to submit them to the requirements of § 7 of the Norris-LaGuardia Act.A question of mootness was raised on oral argument. It appears that, since the date of the decision in the Court of Appeals, respondent has terminated its operations and has contracted to sell its mill properties. All work in the mill ceased in March, 1957. Some of the grievances, however, ask for back pay for increased work loads; and the collective bargaining agreement provides that "the Board of Arbitration shall have the right to adjust compensation retroactive to the date of the change." Insofar as the grievances sought restoration of workloads and job assignments, the case is, of course, moot. But to the extent that they sought a monetary award, the case is a continuing controversy.The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for proceedings in conformity with this opinion.Reversed

U.S. Supreme CourtTextile Workers v. Lincoln Mills, 353 U.S. 448 (1957)Textile Workers Union of America v. Lincoln Mills of AlabamaNo. 211Argued March 25, 1957Decided June 3, 1957353 U.S. 448SyllabusA union entered into a collective bargaining agreement with an employer providing that there would be no strikes or work stoppages and that grievances would be handled pursuant to a specified procedure, the last step of which was arbitration. Grievances arose and were processed through various steps in the grievance procedure until the union's demands were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon, the union sued in a Federal District Court to compel arbitration.Held:1. Under § 301(a) of the Labor Management Relations Act of 1947, the District Court properly decreed specific performance of the agreement to arbitrate the grievance dispute. Pp. 353 U. S. 449-456.2. The substantive law to be applied in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. Pp. 353 U. S. 456-457.3. As here construed, § 301(a) is constitutional. P. 353 U. S. 457.4. Jurisdiction to compel arbitration of grievance disputes is not withdrawn by the Norris-LaGuardia Act. Pp. 353 U. S. 457-459.5. The employer in this case having ceased operations and contracted to sell its mill properties, the case is moot insofar as the union sought restoration of workloads and job assignments; but it is not moot to the extent that it sought a monetary award. P. 353 U. S. 459.230 F.2d 81, reversed. Page 353 U. S. 449

1965_29

MR. JUSTICE WHITE delivered the opinion of the Court.Appellees Clarence Ewell and Ronald Dennis were indicted on December 14, 1962, for selling narcotics without the order form required by 26 U.S.C. § 4705(a) (1964 ed.). [Footnote 1] The indictments, each alleging a single sale, did not name the purchasers. After pleas of guilty on December 18 and December 19, they were sentenced to the minimum terms of imprisonment permitted by the statute, Dennis for five years and Ewell, as a second offender, for ten years. [Footnote 2] On July 17, 1963, the Court of Appeals for the Seventh Circuit, in an unrelated case, held that a § 4705(a) indictment that does not allege the name of the purchaser is defective, and may be set aside under 28 U.S.C. § 2255 (1964 ed.). Lauer v. United States, 320 F.2d 187. [Footnote 3] Ewell's motion of November 6, 1963, to vacate his conviction, and Dennis, similar motion of January 28, 1964, were granted by the District Court on January 13 and April 13, 1964, respectively. Appellees were immediately rearrested on new complaints Page 383 U. S. 119 and reindicted, Ewell on March 26 and Dennis on June 15, 1964. These indictments, charging the same sales alleged in the original indictments, but this time naming the purchasers, contained three counts: Count I charged violations of 26 U.S.C. § 4705(a); Count II charged sales not in or from the original stamped packages in violation of 26 U.S.C. § 4704(a) (1964 ed.); [Footnote 4] Count III charged dealing in illegally imported narcotics in violation of 21 U.S.C. § 174 (1964 ed.).On July 13 and July 30, 1964, respectively, the United States District Court for the Southern District of Indiana granted the motions of Ewell and Dennis to dismiss the indictments against them on the ground that they had been denied their Sixth Amendment rights to a speedy trial, while rejecting their other contention that they were also being placed in double jeopardy. In its petition for rehearing on the dismissal of the indictment against Ewell, the Government advised the court that, upon a plea or finding of guilty, all counts except that under 26 U.S.C. § 4704(a) would be dismissed against him, leaving a conviction upon which the minimum sentence would be only five years for a second offender, [Footnote 5] in contrast to the minimum 10-year sentence which Ewell had previously received under § 4705(a). The court denied the request for rehearing, and the Government then appealed directly to this Court from the dismissal of the indictments against Ewell and Dennis. 18 U.S.C. § 3731 (1964 ed.). The Government has limited its appeal to that portion of the order of the District Court in each Page 383 U. S. 120 case that dismissed the second count of each indictment, charging a violation of 26 U.S.C. § 4704(a). We noted probable jurisdiction. 381 U.S. 909. We reverse.We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment's guarantee of a speedy trial. [Footnote 6] This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that"The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."Beavers v. Haubert, 198 U. S. 77, 198 U. S. 87."Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive,"Pollard v. United States, 352 U. S. 354, 352 U. S. 361. "[T]he essential ingredient is orderly expedition, and not mere speed." Smith v. United States, 360 U. S. 1, 360 U. S. 10.In this case, appellees were promptly indicted and convicted after their arrests in 1962, and were immediately arrested and reindicted in due course after their § 2255 Page 383 U. S. 121 motions were granted in 1964. Moreover, it was the decision in Lauer v. United States, supra, and the subsequent vacation of appellees' prior convictions that precipitated the later indictments. In these circumstances, the substantial interval between the original and subsequent indictments does not, in itself, violate the speedy trial provision of the Constitution.It has long been the rule that, when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. United States v. Ball, 163 U. S. 662, 671-672; United States v. Tateo, 377 U. S. 463, 377 U. S. 465, 377 U. S. 473-474. The rule of these cases, which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. United States v. Tateo, supra, at 377 U. S. 466. These policies, so carefully preserved in this Court's interpretation of the Double Jeopardy Clause, would be seriously undercut by the interpretation given the Speedy Trial Clause by the court below. Indeed, such an interpretation would place a premium upon collateral, rather than upon direct, attack, because of the greater possibility that immunization might attach.Appellees themselves concede that Ball and Tateo are ample authority for retrial on charges under § 4705, despite their Sixth Amendment contentions. [Footnote 7] But they Page 383 U. S. 122 urge us to prohibit prosecution in their cases because the Government is proceeding under § 4704, rather than § 4705, and because the passage of time has allegedly impaired their ability to defend themselves on this new and different charge, thereby rendering the delay prejudicial and oppressive.We note, first, however, that the new indictments charging violations of § 4704 were brought well within the applicable statute of limitations, which is usually considered the primary guarantee against bringing overly stale criminal charges. Surely appellees could claim no automatic violation of their rights to a speedy trial if there had been no charges or convictions in 1962, but only the § 4704 indictment in 1964. In comparison with that situation, the indictments and convictions of 1962 might well have enhanced appellees' ability to defend themselves, for they were, at the very least, put on early notice that the Government intended to prosecute them for the specific sales with which they were then and are now charged.Second, the appellees' claim of possible prejudice in defending themselves is insubstantial, speculative, and premature. They mention no specific evidence which has actually disappeared or has been lost, no witnesses who are known to have disappeared. Although the present charges allege sales not in or from the original stamped packages, under § 4704, rather than sales without the purchaser's written order form, under § 4705, the charges are based on the same sales as were involved in the previous indictments. In this respect, it should be recalled that the problem of delay is the Government's Page 383 U. S. 123 too, for it still carries the burden of proving the charges beyond a reasonable doubt.Third, the new indictments occurred only after the vacation of the previous convictions, and the Government now seeks to sustain the § 4704 charges, which carry lesser minimum sentences than the charges under § 4705(a), not to oppress, but to extend to the trial judge, if these appellees are again convicted, the clear opportunity to take due account of the time both Ewell and Dennis have already spent in prison. We find no oppressive or culpable governmental conduct inhering in these facts.The District Court apparently considered retrial and reconviction to be oppressive because appellees had already spent substantial time in prison and because, in its view, the law would not permit time already served to be credited against the sentences which might be imposed upon reconviction. This, too, is a premature concern. The appellees have not yet been convicted on the second indictments, and, if they were to be reconvicted on § 4705 or § 4704 counts, it should not be assumed that the controlling statute would prevent a credit for time already served. However that may be, as matters now stand, the remaining charges the Government seeks to sustain are under § 4704, which carries a minimum sentence in the case of Ewell of five years, as compared with a minimum of 10 years under § 4705, and two years instead of five years in the case of Dennis. In these circumstances, there is every reason to expect the sentencing judge to take the invalid incarcerations into account in fashioning new sentences if appellees are again convicted. [Footnote 8] Page 383 U. S. 124Appellees also invoke the Double Jeopardy Clause to sustain the dismissal of the indictments, a ground which we think the trial court correctly rejected. The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." That clause, designed to prohibit double jeopardy as well as double punishment, is not properly invoked to bar a second prosecution unless the "same offence" is involved in both the first and the second trials. The identity of offenses is, therefore, a recurring issue in double jeopardy cases, but one which we need not face in this case. Here, the Government is not attempting to prosecute a defendant for an allegedly different offense in the face of an acquittal or an unreversed conviction for another offense arising out of the same transaction. See Abbate v. United States, 359 U. S. 187, 359 U. S. 196, separate opinion of Mr. Justice Brennan. Nor is there any question here of the Government's joining in one indictment more than one count allegedly charging the same crime. Compare Blockburger v. United States, 284 U. S. 299. Here, the Government seeks only to sustain one charge under § 4704. If the present indictments charge the same offense as the § 4705 offense for which appellees were previously convicted, they may clearly be retried on either § 4705 or § 4704 after their convictions have been vacated on their own motions. In these circumstances, where the appellees are subject to a second trial under Page 383 U. S. 125 Ball and Tateo, the fact that § 4704, rather than § 4705, is charged does not in any manner expand the number of trials that may be brought against them. If the two offenses are not, however, the same, then the Double Jeopardy Clause, by its own terms, does not prevent the current prosecution under § 4704. [Footnote 9]Reversed

U.S. Supreme CourtUnited States v. Ewell, 383 U.S. 116 (1966)United States v. EwellNo. 29Argued November 18, 1965Decided February 23, 1966383 U.S. 116SyllabusAppellees were indicted on December 14, 1962, under 26 U.S.C. § 4705(a) for selling narcotics without the requisite form. They pleaded guilty, and were sentenced to the minimum statutory terms, one for five years and the other, as a second offender, for ten years. On July 17, 1963, the Seventh Circuit, in an unrelated case, held that an indictment under § 4705(a) that does not allege the purchaser's name is defective and may be set aside. Appellees' motions to vacate their convictions were filed on November 6, 1963, and January 28, 1964, and were granted by the District Court on January 13 and April 13, 1964, respectively. They were immediately rearrested on new complaints and reindicted on March 26 and June 15, 1964. The indictments, charging the same sales originally alleged but naming the purchasers, contained three counts, charging violations of 26 U.S.C. § 4705(a), 26 U.S.C. §4704 (a) and 21 U.S.C. §174. On July 13 and July 30, 1964, the District Court granted appellees' motions to dismiss the indictments on the ground that they had been denied their Sixth Amendment rights to a speedy trial, while rejecting their double jeopardy argument. In its petition for rehearing, the Government advised that, upon a plea or finding of guilty, all counts except that under § 4704(a) would be dismissed against the second offender appellee, in which case the minimum statutory sentence would be five years, rather than the ten years under § 4705(a). The request for rehearing was denied, and the Government appealed to this Court, limiting the appeal to that portion of the District Court's orders dismissing the count of the indictments charging violations of § 4704(a).Held:1. The mere passage of 19 months between the original arrests and the hearings on the later indictments is not ipso facto a violation of the Sixth Amendment's guarantee of a speedy trial. Pp. 383 U. S. 120-121.(a) The right to a speedy trial depends upon all the circumstances of the case, including the effect upon the rights of the accused and the rights of society. P. 383 U. S. 120. Page 383 U. S. 117(b) Since the only important interval of time occurred as a result of the Seventh Circuit's decision in an unrelated case, the substantial interval between the original and subsequent indictments does not, of itself, violate the Sixth Amendment's guarantee. Pp. 383 U. S. 120-121.(c) When a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. United States v. Ball, 163 U. S. 662; United States v. Tateo, 377 U. S. 463. P. 383 U. S. 121.2. That the Government is proceeding under § 4704, rather than § 4705, does not render the delay prejudicial and oppressive. Pp. 383 U. S. 121-123.(a) The new indictments were brought within the statute of limitations applicable to § 4704. P. 383 U. S. 122.(b) Appellees' claim of possible prejudice in defending themselves is insubstantial, speculative and premature. They mention no evidence that has been lost or witnesses who have disappeared. Pp. 383 U. S. 122-123.(c) The Government seeks to sustain the § 4704 charges, with the lesser minimum sentences, not to oppress, but to give the trial judge, if appellees are again convicted, the opportunity to take into account the time appellees have already spent in prison. P. 383 U. S. 123.3. Appellees' invocation of the Double Jeopardy Clause was properly rejected by the trial court. If the present indictments charge the same offense as the § 4705 offense for which appellees were previously convicted, they may, after their convictions have been vacated on their own motions, be retried under either § 4705 or §4704; if the two offenses are not the same, then the Double Jeopardy Clause, by its terms, does not prevent prosecution under §4704. Pp. 383 U. S. 124-125.242 F. Supp. 166, 451, reversed and remanded. Page 383 U. S. 118

1995_94-6615

Julie R. O'Sullivan, by appointment of the Court, 513Cynthia M. Hora, Assistant Attorney General of Alaska, argued the cause for respondents. With her on the brief was Bruce M. Botelho, Attorney General, pro se. *JUSTICE GINSBURG delivered the opinion of the Court. During a two-hour, tape-recorded session at Alaska state trooper headquarters, petitioner Carl Thompson confessedthat he killed his former wife. Thompson's confession was placed in evidence at the ensuing Alaska state-court trial,*Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Carolyn J. Mosley, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Daniel E. Lungren, Attorney General of California, Gale A. Norton, Attorney General of Colorado, John M. Bailey, Chief State's Attorney of Connecticut, M. Jane Brady, Attorney General of Delaware, Margery S. Bronster, Attorney General of Hawaii, Alan G. Lance, Attorney General of Idaho, Pamela Carter, Attorney General of Indiana, Tom Miller, Attorney General of Iowa, Carla J. Stovall, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Andrew Ketterer, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Jerimiah W "Jay" Nixon, Attorney General of Missouri, 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, Deborah T. Poritz, Attorney General of New Jersey, Dennis C. Vacco, Attorney General of New York, Michael F. Easley, Attorney General of North Carolina, Betty D. Montgomery, Attorney General of Ohio, Drew Edmondson, Attorney General of Oklahoma, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Charles Molony Condon, Attorney General of South Carolina, Mark Barnette, Attorney General of South Dakota, 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, and Christine O. Gregoire, Attorney General of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.102and he was convicted of first-degree murder. Challenging his conviction in a federal habeas corpus proceeding, Thompson maintained that the Alaska troopers gained his confession without according him the warnings Miranda v. Arizona, 384 U. S. 436 (1966), requires: that he could remain silent; that anything he said could be used against him in court; and that he was entitled to an attorney, either retained or appointed.Miranda warnings are due only when a suspect interrogated by the police is "in custody." The state trial and appellate courts determined that Thompson was not "in custody" when he confessed. The statute governing federal habeas corpus proceedings, 28 U. S. C. § 2254, directs that, ordinarily, state-court fact findings "shall be presumed to be correct." § 2254(d). The question before this Court is whether the state-court determination that Thompson was not "in custody" when he confessed is a finding of fact warranting a presumption of correctness, or a matter of law calling for independent review in federal court. We hold that the issue whether a suspect is "in custody," and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review.IOn September 10, 1986, two moose hunters discovered the body of a dead woman floating in a gravel pit lake on the outskirts of Fairbanks, Alaska. The woman had been stabbed 29 times. Notified by the hunters, the Alaska state troopers issued a press release seeking assistance in identifying the body. Thompson called the troopers on September 11 to inform them that his former wife, Dixie Thompson, fit the description in the press release and that she had been missing for about a month. Through a dental examination, the troopers conclusively established that the corpse was Dixie Thompson. On September 15, a trooper called103Thompson and asked him to come to headquarters, purportedly to identify personal items the troopers thought belonged to Dixie Thompson. It is now undisputed, however, that the trooper's primary reason for contacting Thompson was to question him about the murder.Thompson drove to the troopers' headquarters in his pickup truck and, upon arriving, immediately identified the items as Dixie's. He remained at headquarters, however, for two more hours while two unarmed troopers continuously questioned him in a small interview room and tape-recorded the exchange. The troopers did not inform Thompson of his Miranda rights. Although they constantly assured Thompson he was free to leave, they also told him repeatedly that they knew he had killed his former wife. Informing Thompson that execution of a search warrant was underway at his home, and that his truck was about to be searched pursuant to another warrant, the troopers asked questions that invited a confession. App.43-79.1 Eventually, Thompson told the troopers he killed Dixie.1 These passages from the transcript of the tape-recorded interrogation indicate the tenor of the questioning:"Q Do you know--of course, I don't mean to take up a lot of your time, you-you can leave any time that you want to, if you've got something else going on."A Oh no (indiscernible) around here, no."Q I know we called you and probably woke you up and .... "A No, I was just laying there."Q Okay. But you know, you can go any time you want to. We got a-you know, we're trying to-trying to crack on this thing, and I-I don't imagine it's any secret to you that there are some of your-your friends or associates who have been kind of calling up and saying, you know, they've been pointing at you ...."A Yeah, that (indiscernible) guy you know and we've been friends for ten years, you know, and this guy is starting to say stuff that I never even said ... " App. 44-45."Q ... And I'm willing to work with you on this thing to make the best of a bad situation. I can't tell you that this isn't a bad situation. I mean104As promised, the troopers permitted Thompson to leave, but impounded his truck. Left without transportation, Thompson accepted the troopers' offer of a ride to his friend'syou're free to get up and walk out of here now and-and never talk to me again. But what I'm telling you now is this is probably the last chance we'll have to-for you to say something that other people are gonna believe because let's just-let's just say that there's enough (indiscernible) here already that we can-we can prove conclusively beyond a reasonable doubt that-that you were responsible for this thing-this thing. Well really there's a lot that she's responsible for, but you're the guy that's stuck with the problem ...."A I've already told you the story."Q ... Well you haven't told me the critical part and you haven't told me the part about where Dixie gets killed."A And I don't know about that. That's your guys' job. You're supposed to know that."Q Well like I told you, we know the who, the where, the when, the how. The thing we don't know is the why. And that's-that's the thing we've got to kind of get straight here today between you and I. See I know that you did this thing. There's-there's no question in my mind about that. I can see it. I can see it when I'm looking at you. And I know that you care about Dixie. I mean this isn't something that you wanted to happen ...."Q ... I think that now it's the time for you to come honest about this thing, because if you turn around later and try to ...."A I am being honest about it."Q No, you haven't. You told part of the truth and you told a lot of it, but you haven't told all of it .... I mean your-you're not probably lying directly to me, but you're lying by omission .... I can tell you that right now there's a search warrant being served out at [your home] and a search warrant for your truck is gonna be served and we've got a forensic expert up from-from Anchorage ...."A Huh."Q ... And I don't believe that you're a bad person. I really don't .... [W]hat happened here was never planned, what happened here was one of these things that just happen .... And when it happened you're stuck with this-I mean you're stuck with a hell of a mess now. She's got-she's finally got you into more trouble than she can possibly imagine. I mean she's brought this thing on you. She causes that .... I mean I don't know whether she started the thing by grabbing the knife and saying she was105house. Some two hours later, the troopers arrested Thompson and charged him with first-degree murder.The Alaska trial court, without holding an evidentiary hearing, denied Thompson's motion to suppress his September 15 statements. Tr. 118 (Dec. 12, 1986); Tr. 142 (Mar. 18, 1987). Deciding the motion on the papers submitted, the trial court ruled that Thompson was not "in custody" for Miranda purposes, therefore the troopers had no obligation to inform him of his Miranda rights. App.8-9.2 Applying an objective test to resolve the "in custody" question, the court asked whether" 'a reasonable person would feel he was not free to leave and break off police questioning.'" Id., at 7 (quoting Hunter v. State, 590 P. 2d 888,895 (Alaska 1979)). These features, the court indicated, were key: Thompson arrived at the station in response to a trooper's request; two unarmed troopers in plain clothes questioned him; Thompson was told he was free to go at any time; and he was not arrested at the conclusion of the interrogation. App. 7-8. Although the trial court held that, under the totality of the circumstances, a reasonable person would have felt free to leave, it also observed that the troopers' subsequent actions-releasing and shortly thereafter arresting Thompson-rendered the question "very close." Id., at 8-9.After a trial, at which the prosecution played the taperecorded confession, the jury found Thompson guilty of first-degree murder and tampering with evidence. The Court of Appeals of Alaska affirmed Thompson's conviction, concluding, among other things, that the troopers had not placed Thompson "in custody," and therefore had no obligation to give him Miranda warnings. Thompson v. State,gonna (indiscernible) at you and it got turned around or just what happened. I mean I don't know those things .... " Id., at 49-51.2 The trial court also rejected Thompson's contention that his confession was involuntary. On both direct and habeas review, Thompson unsuccessfully asserted the involuntariness of his confession. His petition to this Court, however, does not present that issue.106768 P. 2d 127, 131 (Alaska App. 1989).3 The Alaska Supreme Court denied discretionary review. App. 24.Thompson filed a petition for a writ of habeas corpus in the United States District Court for the District of Alaska. The District Court denied the writ, according a presumption of correctness under 28 U. S. C. § 2254(d) to the state court's conclusion that, when Thompson confessed, he was not yet "in custody" for Miranda purposes. App. 37. The Court of Appeals for the Ninth Circuit affirmed without publishing an opinion. 34 F.3d 1073 (1994). Based on Circuit precedent,4 the court held that "a state court's determination that a defendant was not in custody for purposes of Miranda is a question of fact entitled to the presumption of correctness under 28 U. S. C. § 2254(d)." App. 41.Federal Courts of Appeals disagree on the issue Thompson asks us to resolve: whether state-court "in custody" determinations are matters of fact entitled to a presumption of correctness under 28 U. S. C. § 2254(d), or mixed questions of law and fact warranting independent review by the federal habeas court. Compare Feltrop v. Delo, 46 F.3d 766, 773 (CA8 1995) (applying presumption of correctness), with Jacobs v. Singletary, 952 F.2d 1282, 1291 (CAll 1992) (conducting independent review). Because uniformity among federal courts is important on questions of this order, we granted certiorari to end the division of authority. 513 U. S.3 It is unclear in this case what deference the Alaska appellate court accorded to the trial court's conclusion that petitioner was not "in custody"; in later decisions, the Alaska Court of Appeals reviewed the trial courts' "in custody" determinations for "clear error." See Higgins v. State, 887 P. 2d 966, 971 (Alaska App. 1994); McKillop v. State, 857 P. 2d 358, 361 (Alaska App. 1993).4 The panel relied on Krantz v. Briggs, 983 F.2d 961, 964 (CA9 1993), which held that state-court "in custody" determinations warrant a presumption of correctness under § 2254(d) if the state court made factfindings after a hearing on the merits.1071126 (1995). We now hold that the 28 U. S. C. § 2254(d) presumption does not apply to "in custody" rulings; accordingly, we vacate the Ninth Circuit's judgment.II"[I]n-custody interrogation[s]," this Court recognized in Miranda v. Arizona, place "inherently compelling pressures" on the persons interrogated. 384 U. S., at 467. To safeguard the uncounseled individual's Fifth Amendment privilege against self-incrimination, the Miranda Court held, suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation. Id., at 444. The Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Ibid.; see also Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam) (duty to give Miranda warnings is triggered "only where there has been such a restriction on a person's freedom as to render him 'in custody''') (quoted in Stansbury v. California, 511 U. S. 318, 322 (1994) (per curiam)). Our task in petitioner Thompson's case is to identify the standard governing federal habeas courts' review of state-court "in custody" determinations.5ASection 2254 governs federal habeas corpus proceedings instituted by persons in custody pursuant to the judgment of a state court. In such proceedings, § 2254(d) declares,5 Claims that state courts have incorrectly decided Miranda issues, as Withrow v. Williams, 507 U. S. 680 (1993), confirms, are appropriately considered in federal habeas review.108state-court determinations of "a factual issue" "shall be presumed to be correct" absent one of the enumerated exceptions.6 This provision, added in a 1966 amendment, Act of6 Section 2254(d) lists eight exceptions to the presumption of correctness. In full, 28 U. S. C. § 2254(d) reads:"In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit-"(1) that the merits of the factual dispute were not resolved in the State court hearing;"(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;"(3) that the material facts were not adequately developed at the State court hearing;"(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;"(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;"(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or"(7) that the applicant was otherwise denied due process of law in the State court proceeding;"(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:"And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly109Nov. 2, 1966, Pub. L. 89-711, 80 Stat. 1105-1106, received the Court's close attention in Miller v. Fenton, 474 U. S. 104 (1985). As the Miller Court observed, § 2254(d) "was an almost verbatim codification of the standards delineated in Townsend v. Sain, 372 U. S. 293 (1963), for determining when a district court must hold an evidentiary hearing before acting on a habeas petition." Miller, 474 U. S., at 111.7 Townsend counseled that, if the habeas petitioner has had in state court "a full and fair hearing ... resulting in reliable findings," the federal court "ordinarily should ... accept the facts as found" by the state tribunal. 372 U. S., at 318. Section 2254(d) essentially "elevated [the Townsend Court's] exhortation into a mandatory presumption of correctness." Miller, 474 U. S., at 111-112; see also id., at 112 (emphasizing respect appropriately accorded "a coequal state judiciary" and citing Culombe v. Connecticut, 367 U. S. 568, 605 (1961) (opinion of Frankfurter, J.)).Just as Townsend's instruction on the respect appropriately accorded state-court factfindings is now captured in the § 2254(d) presumption, so we have adhered to Townsend's definition of the § 2254(d) term "factual issue." 8 The Townsend Court explained that by "'issues of fact,'" it meantsupport such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous."7The list of circumstances warranting an evidentiary hearing in a federal habeas proceeding set out in H. R. Rep. No. 1384, 88th Cong., 2d Sess., 25 (1964), is similar to the list set out in Townsend v. Sain, 372 U. S. 293, 313 (1963). The legislative history further indicates that the House Judiciary Committee, in framing its recommendations, was mindful of the Court's recent precedent, including Townsend. H. R. Rep. No. 1384, supra, at 24-25. See also 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure §20.1a, pp. 537-538 (2d ed. 1994) (description of interplay between habeas statute and Townsend).8 Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), partially overruled Townsend on a point not relevant here; Keeney held that a "cause-andprejudice" standard, rather than the "deliberate by-pass" standard, is the correct standard for excusing a habeas petitioner's failure to develop a material fact in state-court proceedings. 504 U. S., at 5-6.110"basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators .... '" 372 U. S., at 309, n. 6 (quoting Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.)). "Socalled mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations," the Townsend Court added, "are not facts in this sense." 372 U. S., at 309, n. 6.9 In applying § 2254(d), we have reaffirmed that "basic, primary, or historical facts" are the "factual issue[s]" to which the statutory presumption of correctness dominantly relates. See, e. g., Miller, 474 U. S., at 112 ("[S]ubsidiary factual questions" in alleged involuntariness of confession cases are subject to the § 2254(d) presumption, but "the ultimate question"-requiring a "totality of the circumstances" assessment-"is a matter for independent federal determination."); Cuyler v. Sullivan, 446 U. S. 335, 342 (1980) ("mixed determination[s] oflaw and fact" generally are not subject to the § 2254(d) presumption of correctness).It must be acknowledged, however, "that the Court has not charted an entirely clear course in this area." Miller, 474 U. S., at 113. In regard to § 2254(d), as in other contexts,10 the proper characterization of a question as one of9 See also Brown v. Allen, 344 U. S. 443, 507 (1953) (opinion of Frankfurter, J.) ("Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts, the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.") (citation omitted).10 See, e. g., Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 401 (1990) (observing in regard to appellate review of sanctions imposed under Fed. Rule Civ. Proc. 11: "The Court has long noted the difficulty of distinguishing between legal and factual issues."); Pullman-Standard v. Swint, 456 U. S. 273, 288 (1982) (acknowledging, in relation to appellate review of intent determinations in Title VII cases, "the vexing nature of the distinction between questions of fact and questions of law").111fact or law is sometimes slippery. See ibid.; Wainwright v. Witt, 469 U. S. 412, 429 (1985) ("It will not always be easy to separate questions of 'fact' from 'mixed questions of law and fact' for § 2254(d) purposes .... "). Two lines of decisions compose the Court's § 2254(d) law/fact jurisprudence.In several cases, the Court has classified as "factual issues" within § 2254(d)'s compass questions extending beyond the determination of "what happened." This category notably includes: competency to stand trial (e. g., Maggio v. Fulford, 462 U. S. 111, 117 (1983) (per curiam)); and juror impartiality (e. g., Witt, 469 U. S., at 429; Patton v. Yount, 467 U. S. 1025, 1036 (1984); Rushen v. Spain, 464 U. S. 114, 120 (1983)). While these issues encompass more than "basic, primary, or historical facts," their resolution depends heavily on the trial court's appraisal of witness credibility and demeanor. See, e. g., Witt, 469 U. S., at 429 (Although the trial court is "applying some kind of legal standard to what [it] sees and hears," its "predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record."). This Court has reasoned that a trial court is better positioned to make decisions of this genre, and has therefore accorded the judgment of the jurist-observer "presumptive weight." Miller, 474 U. S., at 114 (when an "issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court").On the other hand, the Court has ranked as issues of law for § 2254(d) purposes: the voluntariness of a confession (Miller, 474 U. S., at 116); the effectiveness of counsel's assistance (Strickland v. Washington, 466 U. S. 668, 698 (1984)); and the potential conflict of interest arising out of an attorney's representation of multiple defendants (Cuyler, 446 U. S., at 341-342). "What happened" issues in these cases warranted a presumption of correctness, but the Court declared "the ultimate question" outside § 2254(d)'s domain112because of its "uniquely legal dimension." Miller, 474 U. S., at 116; see also Sumner v. Mata, 455 U. S. 591, 597 (1982) (per curiam) ("[T]he constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254(d)."); Brewer v. Williams, 430 U. S. 387, 397, and n. 4, 403-404 (1977) (waiver of Sixth Amendment right to assistance of counsel is not a question of historical fact, but rather requires application of constitutional principles to facts).BThe ultimate "in custody" determination for Miranda purposes, we are persuaded, fits within the latter class of cases. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances,l1 would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam) (quoting Mathiason, 429 U. S., at 495). The first inquiry, all agree, is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness under 28 U. S. C. § 2254(d). The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate11 The "totality of the circumstances" cast of the "in custody" determination, contrary to respondents' suggestions, does not mean deferential review is in order. See, e. g., Miller v. Fenton, 474 U. S. 104, 117 (1985) (state-court determination "whether, under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution" qualifies for independent review by federal habeas court).113determination, we hold, presents a "mixed question of law and fact" qualifying for independent review.The practical considerations that have prompted the Court to type questions like juror bias and competency as "factual issue[s]," and therefore governed by § 2254(d)'s presumption of correctness, are not dominant here. As this case illustrates, the trial court's superior capacity to resolve credibility issues is not dispositive of the "in custody" inquiry.12 Credibility determinations, as in the case of the alleged involuntariness of a confession, see Miller, 474 U. S., at 112, may sometimes contribute to the establishment of the historical facts and thus to identification of the "totality of the circumstances." But the crucial question entails an evaluation made after determination of those circumstances: if encountered by a "reasonable person," would the identified circumstances add up to custody as defined in Miranda? 1312 As earlier observed, see supra, at 105, the trial court decided Thompson's motion to suppress his September 15 statements on the papers submitted without holding an evidentiary hearing.13 Respondents observe that "reasonable person" assessments, most prominently to gauge negligence in personal injury litigation, fall within the province of fact triers. See, e.g., Cooter & Gell, 496 U. S., at 402 (negligence determinations "generally reviewed deferentially"); McAllister v. United States, 348 U. S. 19, 20-23 (1954) (District Court finding of negligence was not "clearly erroneous"); 9A C. Wright & A. Miller, Federal Practice and Procedures § 2590 (2d ed. 1995). Traditionally, our legal system has entrusted negligence questions to jurors, inviting them to apply community standards. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 37, pp. 235-237 (5th ed. 1984). For that reason, "[t]he question usually is said to be one of fact," although "it should be apparent that the function of the jury in fixing the standard differs from that of the judge only in that it cannot be reduced to anything approaching a definite rule." Id., at 237.Judges alone make "in custody" assessments for Miranda purposes, and they do so with a view to identifying recurrent patterns, and advancing uniform outcomes. If they cannot supply "a definite rule," they nonetheless can reduce the area of uncertainty. See, e. g., Illinois v. Perkins, 496 U. S. 292, 296 (1990) (Miranda warnings not required prior to questioning of incarcerated individual by undercover agent because suspect, unaware114See Berkemer v. McCarty, 468 U. S. 420, 442 (1984) (court must assess "how a reasonable man in the suspect's position would have understood his situation"); cf. Miller, 474 U. S., at 116-117 ("[A]ssessments of credibility and demeanor are not crucial to the proper resolution of the ultimate issue of 'voluntariness.' ").Unlike the voir dire of a juror, Patton, 467 U. S., at 1038, or the determination of a defendant's competency, Maggio, 462 U. S., at 117, which "take[s] place in open court on a full record," Miller, 474 U. S., at 117, the trial court does not have a first-person vantage on whether a defendant was "in custody" for Miranda purposes. See 474 U. S., at 117 (police interrogations yielding confessions ordinarily occur, not in court, but in an "inherently more coercive environment"). Furthermore, in fathoming the state of mind of a potential juror or a defendant in order to answer the questions, "Is she free of bias?," "Is he competent to stand trial?," the trial court makes an individual-specific decision, one unlikely to have precedential value.14 In contrast, "in custody" determinations do guide future decisions.15 We thus concludeof police presence, is not coerced); Berkemer v. McCarty, 468 U. S. 420, 436-439 (1984) (nature of suspected offense is irrelevant to duty to administer Miranda warnings); Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977) (per curiam) (fact that interrogation occurs at police station does not, in itself, require Miranda warnings).14 In other contexts, we have similarly concluded that the likely absence of precedential value cuts against requiring plenary appellate review of a district court's determination. For example, in Cooter & Gell v. Hartmarx Corp., a decision confirming that the abuse-of-discretion standard applies to appellate review of sanctions under Federal Rule of Civil Procedure 11, we observed that plenary review would likely" 'fail to produce the normal law-clarifying benefits that come from an appellate decision on a question of law ... .''' 496 U. S., at 404 (quoting Pierce v. Underwood, 487 U. S. 552, 561 (1988)).15 See, e. g., Stansbury v. California, 511 U. S. 318, 322-324 (1994) (per curiam) (review of precedent demonstrated a "well settled" principle: officer's undisclosed, subjective belief that person questioned is a suspect is irrelevant to objective "in custody" determination); Pennsylvania115that once the historical facts are resolved, the state court is not "in an appreciably better position than the federal habeas court to make [the ultimate] determination" of the consistency of the law enforcement officer's conduct with the federal Miranda warning requirement. See 474 U. S., at 117.Notably, we have treated the "in custody" question as one of law when States complained that their courts had erroneously expanded the meaning of "custodial interrogation." See Beheler, 463 U. S., at 1121-1125 (summarily reversing California Court of Appeal's judgment that respondent was "in custody"); Mathiason, 429 U. S., at 494-496 (summarily reversing Oregon Supreme Court's determination that respondent was "in custody"); cf. Oregon v. Hass, 420 U. S. 714, 719 (1975) ("[A] State may not impose ... greater restrictions [on police activity] as a matter of federal constitutional law when this Court specifically refrains from imposing them."). It would be anomalous to type the question differently when an individual complains that the state courts had erroneously constricted the circumstances that add up to an "in custody" conclusion.Classifying "in custody" as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law. See, e. g., Berkemer, 468 U. S., at 436-439 (routine traffic stop-typically temporary, brief, and public-does not place driver "in custody" for Miranda warning purposes); see also Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 273-276 (1985) ("norm elaboration occurs best when the Court has power to consider fully a series of closelyv. Bruder, 488 U. S. 9, 11 (1988) (per curiam) (summary reversal appropriate because state-court decision was contrary to rule of Berkemer v. McCarty, 468 U. S. 420 (1984), that ordinary traffic stops do not involve "custody" for purposes of Miranda).116related situations"; case-by-case elaboration when a constitutional right is implicated may more accurately be described as law declaration than as law application).***Applying § 2254(d)'s presumption of correctness to the Alaska court's "in custody" determination, both the District Court and the Court of Appeals ruled that Thompson was not "in custody" and thus not entitled to Miranda warnings. Because we conclude that state-court "in custody" determinations warrant independent review by a federal habeas court, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusTHOMPSON v. KEOHANE, WARDEN, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-6615. Argued October 11, 1995-Decided November 29,1995During a two-hour, tape-recorded session at Alaska state trooper headquarters, petitioner Thompson confessed he had killed his former wife. Thompson maintained that the troopers gained his confession without according him the warnings required by Miranda v. Arizona, 384 U. S. 436. The Alaska trial court denied his motion to suppress the confession, however, ruling that he was not "in custody" for Miranda purposes, therefore the troopers were not required to inform him of his Miranda rights. After a trial at which the prosecution played the tape-recorded confession, the jury found Thompson guilty of first-degree murder, and the Court of Appeals of Alaska affirmed his conviction. The Federal District Court denied Thompson's petition for a writ of habeas corpus, and the Ninth Circuit affirmed. Both courts held that a state court's ruling that a defendant was not "in custody" for Miranda purposes qualifies as a "fact" determination entitled to a presumption of correctness under 28 U. S. C. § 2254(d).Held: State-court "in custody" rulings, made to determine whether Miranda warnings are due, do not qualify for a presumption of correctness under § 2254(d). Such rulings do not resolve "a factual issue." Instead, they resolve mixed questions of law and fact and therefore warrant independent review by the federal habeas court. Pp. 107-116.(a) Section 2254(d) declares that, in a federal habeas proceeding instituted by a person in custody pursuant to a state-court judgment, the state court's determination of "a factual issue" ordinarily "shall be presumed to be correct." This Court has held that "basic, primary, or historical facts" are the "factual issue[s]" to which the statutory presumption of correctness dominantly relates. See, e. g., Miller v. Fenton, 474 U. S. 104, 112. Nonetheless, the proper characterization of a question as one of fact or law is sometimes slippery. Two lines of decisions compose the Court's § 2254(d) law/fact jurisprudence. In several cases, the Court has classified as "factual issues" within § 2254(d)'s compass questions extending beyond the determination of "what happened." The resolution of the issues involved in these cases, notably competency to stand trial and juror impartiality, depends heavily on the trial court's superior ability to appraise witness credibility and demeanor. On the100Syllabusother hand, the Court has recognized the "uniquely legal dimension" presented by issues such as the voluntariness of a confession and the effectiveness of counsel's assistance and has ranked these as questions of law for § 2254(d) purposes. "What happened" determinations in these cases warrant a presumption of correctness, but "the ultimate question," the Court has declared, remains outside § 2254(d)'s domain and is "a matter for independent federal determination." Ibid. Pp. 107-112.(b) The ultimate "in custody" determination for Miranda purposes fits within the latter class of cases. Two discrete inquiries are essential to the determination whether there was "a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U. S. 1121, 1125. The first inquiry-i. e., what circumstances surrounded the interrogation-is distinctly factual and state-court findings in response to that inquiry attract a presumption of correctness under § 2254(d). The second inquiry-i. e., would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave-calls for application of the controlling legal standard to the historical facts and thus presents a "mixed question of law and fact" qualifying for independent review. The practical considerations that have prompted the Court to type questions like juror bias and competency to stand trial as "factual issue[s]" do not dominate "in custody" inquiries. In such inquiries, the trial court's superior capacity to resolve credibility issues is not the foremost factor. Notably absent from the trial court's purview is any first-person vantage on whether a defendant, when interrogated, was so situated as to be "in custody" for Miranda purposes. Thus, once the historical facts are resolved, the state court is not in an appreciably better position than the federal habeas court to make the ultimate determination of the consistency of the law enforcement officer's conduct with the federal Miranda warning requirement. Furthermore, classifying "in custody" as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As the Court's decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law. Pp. 112-116.34 F.3d 1073, vacated and remanded.GINSBURG, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 116.101Full Text of Opinion

2002_01-10873

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, GINSBURG, and BREYER, JJ., joined, post, p. 83.Jeffrey T. Green argued the cause for petitioners. With him on the briefs were Howard Trapp and Rawlen T. Mantanona, both by appointment of the Court, 538 U. S. 920, Carter G. Phillips, and Eric A. Shumsky.Patricia A. Millett argued the cause for the United States. With her on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben.tJUSTICE STEVENS delivered the opinion of the Court. These cases present the question whether a panel of the Court of Appeals consisting of two Article III judges and one Article IV judge had the authority to decide petitioners' appeals. We conclude it did not, and we therefore vacate the judgments of the Court of Appeals.IPetitioners are residents of the island of Guam, which has been a possession of the United States since the end of the Spanish-American War.1 The Navy administered the island, except for the period of Japanese occupation during World War II, until Congress established Guam as an unincorporated Territory with the passage of the Organic Act of Guam in 1950.2 Pursuant to Congress' authority under Article IV; § 3, of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belongingtGordon Rhea filed a brief for Thomas K. Moore as amicus curiae urging affirmance.1 See Treaty of Paris, Art. II, 30 Stat. 1755 (1899).264 Stat. 384. See generally A. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations 313, 323 (1989).72to the United States," the Organic Act of Guam created a territorial court, the District Court of Guam, and vested it with subject-matter jurisdiction over causes arising under both federal law and locallaw.3 Petitioners were tried before a jury, convicted, and sentenced in the District Court of Guam to lengthy prison terms for federal narcotics offenses. Petitioners do not dispute that court's jurisdiction to conduct their criminal trial and enter judgments of conviction.As authorized by statute,4 petitioners appealed their convictions to the Court of Appeals for the Ninth Circuit. The panel convened to hear their appeals included the Chief Judge and a Senior Circuit Judge of the Ninth Circuit, both of whom are, of course, life-tenured Article III judges who serve during "good Behaviour" for compensation that may not be diminished while in office. U. S. Const., Art. III, § 1. The third member of the panel was the Chief Judge of the District Court for the Northern Mariana Islands. That court is not an Article III court but an Article IV territorial court with subject-matter jurisdiction substantially similar3 See Organic Act of Guam § 22, 64 Stat. 389, 48 U. S. C. § 1424. "The 'District Court of Guam' rather than 'United States District Court of Guam' was chosen as the court's title, since it was created under Art. IV, § 3, of the Federal Constitution rather than under Art. III, and since § 22 vested the court with original jurisdiction to decide both local and federal-question matters." Guam v. Olsen, 431 U. S. 195, 196-197, n. 1 (1977) (citing S. Rep. No. 2109, 81st Cong., 2d Sess., 12 (1950)). The Guam Legislature was authorized as well to create local courts and transfer to them jurisdiction over certain cases that otherwise could be heard by the District Court of Guam. See Olsen, 431 U. S., at 200-201 (citing Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F.2d 952, 959 (CA9 1976) (Kennedy, J., dissenting)).4 Title 28 U. S. C. § 1294(4) provides:"[A]ppeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows:"(4) From the District Court of Guam, to the Court of Appeals for the Ninth Circuit."73to the jurisdiction of the District Court of Guam.5 The Chief Judge of the District for the Northern Mariana Islands, unlike an Article III judge, is appointed by the President and confirmed by the Senate for a term of 10 years, "unless sooner removed by the President for cause." 6The highly unusual presence of a non-Article III judge as a member of the Ninth Circuit panel occurred during special sittings in Guam and the Northern Mariana Islands. When the Court of Appeals heard arguments in Guam, the Chief Judge of the Ninth Circuit invited the Chief Judge of the District Court for the Northern Mariana Islands to participate. A judge of the District Court of Guam was similarly invited to participate in appeals heard while the Ninth Circuit sat in the Northern Mariana Islands.The panel affirmed petitioners' convictions without dissent. 284 F.3d 1086 (2002). Neither Nguyen nor Phan objected to the composition of the panel before the cases were submitted for decision; neither petitioner sought rehearing after the Court of Appeals rendered judgment to challenge the panel's authority to decide their appeals. Each did, however, file a petition for certiorari raising the question whether the judgment of the Court of Appeals is invalid because of the participation of a non-Article III judge on the panel. In accordance with this Court's Rule 10(a), we granted the writ, 537 U. S. 999 (2002), to determine whether5"The District Court for the Northern Mariana Islands shall have the jurisdiction of a District Court of the United States, including, but not limited to, the diversity jurisdiction provided for in section 1332 of title 28 and that of a bankruptcy court of the United States."The district court shall have original jurisdiction in all causes in the Northern Mariana Islands not described in subsection (a) of this section jurisdiction over which is not vested by the Constitution or laws of the Northern Mariana Islands in a court or courts of the Northern Mariana Islands." 48 U. S. C. § 1822. The text of the statute closely follows the corresponding provisions of the Organic Act of Guam. See S. Rep. No. 95-475, p. 3 (1977).648 U. S. C. § 1821(b)(1).74the Court of Appeals had "so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court's supervisory powers." Pet. for Cert. in No. 01-10873, p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following reasons, we find these to be appropriate cases for the exercise of that power.IIWe begin with the congressional grant of authority permitting, in certain circumstances, the designation of district judges to serve on the courts of appeals. In relevant part, the designation statute authorizes the chief judge of a circuit to assign "one or more district judges within the circuit" to sit on the court of appeals "whenever the business of that court so requires." 28 U. S. C. § 292(a). Section 292(a) itself does not explicitly define the "district judges" who may be assigned to the court of appeals. However, as other provisions of law make perfectly clear, judges of the District Court for the Northern Mariana Islands are not "district judges" within the meaning of § 292(a).Outside of § 292(a), Title 28 contains several particularly instructive provisions. The term "district court" as used throughout Title 28 is defined to mean a " 'court of the United States'" that is "constituted by chapter 5 of this title." § 451. Chapter 5 of Title 28 in turn creates a "United States District Court" for each judicial district. § 132(a) ("There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district"). And "district judge[s]" are established as the members of those courts. § 132(b) ("Each district court shall consist of the district judge or judges for the district in regular active service"). The judicial districts constituted by Chapter 5 are then exhaustively enumerated. § 133(a) ("The President shall appoint, by and with the advice and consent of the Senate, district judges for the several ju-75dicial districts, as follows [listing districts]"). Lastly, Chapter 5 describes "district judges" as holding office "during good behavior." § 134(a).Taking these provisions together, § 292(a) cannot be read to permit the designation to the court of appeals of a judge of the District Court for the Northern Mariana Islands. Significantly, the District Court for the Northern Mariana Islands is not one of the courts constituted by Chapter 5 of Title 28, nor is that court even mentioned within Chapter 5.7 See § 133(a). Because the judges of the District Court for the Northern Mariana Islands are appointed for a term of years and may be removed by the President for cause, they also do not satisfy the command for district judges within the meaning of Title 28 to hold office during good behavior. § 134(a).The Government agrees these statutory provisions are best read together as not permitting the Chief Judge of the Northern Mariana Islands to sit by designation on the Ninth Circuit. The Government maintains, however, that the erroneous designation in these cases was not plainly impermissible because Title 28 does not expressly forbid it or explicitly define the term "district judge" separately from the term "district court." This contention requires an excessively strained interpretation of the statute. To be sure, a literal reading of the words "district judges" in isolation from the rest of the statute might arguably justify assigning the Chief Judge of the District Court for the Northern Mariana Islands for service on the Court of Appeals, for he is called a "district judge" of a court "within the [Ninth] [C]ircuit." But a literal reading of that sort is so capacious that it would also justify the designation of "district judges" of any number of7The District Court for the Northern Mariana Islands is instead established in Chapter 17 of Title 48 ("Territories and Insular Possessions"). See § 1821.76state courts "within" the Ninth Circuit.8 The statute cannot plausibly be interpreted to authorize the improper panel assignment in these cases.Moreover, we do not read the designation statute without regard for the "historic significance" of the term "United States District Court" used in Title 28. Mookini v. United States, 303 U. S. 201, 205 (1938). "[W]ithout an addition expressing a wider connotation," that term ordinarily excludes Article IV territorial courts, even when their jurisdiction is similar to that of a United States District Court created under Article III. Ibid. See also Summers v. United States, 231 U. S. 92, 101-102 (1913) ("[T]he courts of the Territories may have such jurisdiction of cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts, but this does not make them circuit and district courts of the United States"); Stephens v. Cherokee Nation, 174 U. S. 445, 476-477 (1899) ("It must be admitted that the words 'United States District Court' were not accurately used ... [to refer to] the United States Court in the Indian Territory"). Construing the relevant statutory provisions together with further aid from historical usage, it is evident that Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be "district judges" within the meaning of § 292(a). It necessarily follows that the appointment of one member of the panel deciding petitioners' appeals was unauthorized.98 Alaska, Hawaii, Idaho, Montana, Nevada, and Washington are all States within the Ninth Circuit whose judiciaries include "district judges." See Alaska Stat. §§ 22.15.010, 22.15.020, 22.20.010 (2002); Haw. Const., Art. VI, § 1; Haw. Rev. Stat. § 604-1 (1993); Idaho Const., Art. V, § 11; Idaho Code § 1-701 (1948-1998); Mont. Const., Art. VII, §§ 1, 4, 6; Nev. Const., Art. 6, §§ 5-6; Nev. Rev. Stat. § 1.010 (1995); Wash. Const., Art. IV, § 6 (West Supp. 2003); Wash. Rev. Code §§ 3.30.015, 3.30.030, 3.34.010, 3.66.010 (1988 and West Supp. 2003).9 Petitioners contend that the participation of an Article IV judge on the panel violated structural constitutional guarantees embodied in Article III and in the Appointments Clause, Art. II, § 2, cl. 2, of the Constitu-77IIIAlthough the Government concedes that the panel of the Court of Appeals was improperly constituted, it advances three grounds on which the judgments below may rest undisturbed. Two of the grounds on which we are urged to affirm concern petitioners' failure to object to the panel's composition in the Court of Appeals. Relying on the so-called "de facto officer" doctrine, the Government contends petitioners' failure to challenge the panel's composition at the earliest practicable moment completely forecloses relief in this Court. The Government also contends that petitioners do not meet the requirements for relief under plain-error review. The presence of a quorum of two otherwise-qualified judges on the Court of Appeals panel is invoked as the third ground sufficient to support the decision below. We do not find these contentions persuasive.The de facto officer doctrine, we have explained, "confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." Ryder v. United States, 515 U. S. 177, 180 (1995). Whatever the force of the de facto officer doctrine in other circumstances, an examination of our precedents concerning alleged irregularities in the assignment of judges does not compel us to apply it in these cases.Typically, we have found a judge's actions to be valid de facto when there is a "merely technical" defect of statutory authority. Glidden Co. v. Zdanok, 370 U. S. 530, 535 (1962) (plurality opinion of Harlan, J.). In McDowell v. United States, 159 U. S. 596, 601-602 (1895), for example, the Court declined to notice alleged irregularities in a Circuit Judge's designation of a District Judge for temporary service in another district. See also Ball v. United States, 140 U. S. 118,tion. We find it unnecessary to discuss the constitutional questions because the statutory violation is clear.78128-129 (1891) (assigned judge had de facto authority to replace a deceased judge even though he had been designated to replace a disabled judge). We observed in McDowell, however, that the judge whose assignment had been questioned was otherwise qualified to serve, because he was "a judge of the United States District Court, having all the powers attached to such office," and because the Circuit Judge was otherwise empowered to designate him. 159 U. S., at 60l.By contrast, we have agreed to correct, at least on direct review, violations of a statutory provision that "embodies a strong policy concerning the proper administration of judicial business" even though the defect was not raised in a timely manner. Glidden, 370 U. S., at 536 (plurality opinion). In American Constr. Co. v. Jacksonville, T. & K. W R. Co., 148 U. S. 372 (1893), the case Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appea1.10 This Court succinctly observed: "If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari." 148 U. S., at 387. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Tur-10 The petitioners in American Constr. Co. challenged the participation of a Circuit Judge who, while sitting as a trial judge, had entered an order closely related to the matter under review in the Circuit Court of Appeals. At the time, the relevant statute governing the composition of the circuit courts of appeals provided that "no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals." Evarts Act, ch. 517, § 3,26 Stat. 827.79bine Co., 228 U. S. 645 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650. Rather than sift through the underlying merits, we remanded to the Circuit Court of Appeals "so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute." Id., at 651. See also Moran v. Dillingham, 174 U. S. 153, 158 (1899) ("[T]his court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals to be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges" (emphasis deleted)).We are confronted in petitioners' cases with a question of judicial authority more fundamental than whether "some effort has been made to conform with the formal conditions on which [a judge's] particular powers depend." Johnson v. Manhattan R. Co., 61 F.2d 934, 938 (CA2 1932) (L. Hand, J.). The difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore the difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all. Like the statutes in William Cramp & Sons, Moran, and American Constr. Co., § 292(a) embodies weighty congressional policy concerning the proper organization of the federal courts.ll11 The Government seeks to distinguish William Cramp & Sons, Moran, and American Constr. Co. on the ground that the statutory provision at issue in each of those cases, unlike § 292(a), "expressly prohibited" the challenged judge's participation. Brief for United States 18. In light of our conclusion that there is no plausible interpretation of § 292(a) permitting the designation in the instant cases, see supra, at 74-76, we think this is a distinction without a difference. In any event, there was no "express" prohibition at play in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960), in which this Court vacated the judgment of a80Section 292(a) does not permit any assignment to service on the courts of appeals of a district judge who does not enjoy the protections set forth in Article III. Congress' decision to preserve the Article III character of the courts of appeals is more than a trivial concern, cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 57-60 (1982) (plurality opinion), and is entitled to respect. The Chief Judge of the Northern Mariana Islands did not purport to have "all the powers attached to" the position of an Article III judge, McDowell, 159 U. S., at 601, nor was the Chief Judge of the Ninth Circuit otherwise permitted by § 292(a) to designate him for service on an Article III court. Accordingly, his participation contravened the statutory requirements set by Congress for the composition of the federal courts of appeals.For essentially the same reasons, we think it inappropriate to accept the Government's invitation to assess the merits of petitioners' convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. It is true, as the Government observes, that a failure to object to trial error ordinarily limits an appellate court to review for plain error. See 28 U. S. C. § 2111; Fed. Rule Crim. Proc. 52(b). But to ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners' part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consider-Court of Appeals, sitting en bane, because a Senior Circuit Judge who had participated in the decision was not authorized by statute to do so. See also id., at 691 (Harlan, J., dissenting) ("The statute need hardly be read, as the Court now holds it should be, as saying that a case in an en bane court shall be 'heard and determined' by the active circuit judges").81ation of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel.12 See William Cramp & Sons, 228 U. S., at 650.More fundamentally, our enforcement of § 292(a)'s outer bounds is not driven so much by concern for the validity of petitioners' convictions at trial but for the validity of the composition of the Court of Appeals. As a general rule, federal courts may not use their supervisory powers to circumvent the obligation to assess trial errors for their prejudicial effect. See Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988). Because the error in these cases involves a violation of a statutory provision that "embodies a strong policy concerning the proper administration of judicial business," however, our exercise of supervisory power is not inconsistent with that general rule.13 Glidden, 370 U. S., at 536 (plurality opinion). Thus, we invalidated the judgment of a Court of Appeals without assessing prejudice, even though urged to do so, when the error alleged was the improper composition of that court. See United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960) (vacating judgment of en banc Court of Appeals because participation by Senior Circuit Judge was not provided by statute).12 We agree with the Government's submission that the improper composition of the court below was "an isolated, one-time mistake." Brief for United States 5. Countervailing concerns for gamesmanship, which animate the requirement for contemporaneous objection, therefore dissipate in these cases in light of the rarity of the improper panel assignment at issue.13 "The authority which Congress has granted this Court to review judgments of the courts of appeals undoubtedly vests us not only with the authority to correct errors of substantive law, but to prescribe the method by which those courts go about deciding the cases before them." Lehman Brothers v. Schein, 416 U. S. 386, 393 (1974) (REHNQUIST, J., concurring).82It is also true that two judges of a three-judge panel constitute a quorum legally able to transact business.14 Moreover, settled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified. United States v. Allied Stevedoring Corp., 241 F.2d 925, 927 (CA2 1957) (L. Hand, J.). For two reasons, however, the presence of a quorum on the Ninth Circuit panel does not save the judgments below. First, the quorum statute has been on the books (in relevant part essentially unchanged) for over a century,15 yet this Court has never doubted its power to vacate the judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960); William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913); American Constr. Co. v. Jacksonville, T. & K. W R. Co., 148 U. S. 372 (1893).Second, the statutory authority for courts of appeals to sit in panels, 28 U. S. C. § 46(b), requires the inclusion of at least three judges in the first instance.16 As the Second Circuit14 Title 28 U. S. C. § 46(d) provides: "A majority of the number of judges authorized to constitute a court or panel thereof ... shall constitute a quorum." As used in § 46(d), "quorum ... means such a number of the members of the court as may legally transact judicial business." Tobin v. Ramey, 206 F.2d 505, 507 (CA5 1953).15 See Act of Mar. 3, 1911, ch. 6, § 117,36 Stat. 1131:"There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum .... "The Evarts Act, which established the original circuit courts of appeals, contained essentially the same provision:"[T]here is hereby created in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum." Ch. 517, § 2, 26 Stat. 826.16 Title 28 U. S. C. § 46(b) provides, in pertinent part: "In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority83has noted, Congress apparently enacted § 46(b) in part "to curtail the prior practice under which some circuits were routinely assigning some cases to two-judge panels." Murray v. National Broadcasting Co., 35 F.3d 45, 47 (1994). It is "clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate," ibid., but it is less clear whether the quorum statute offers post judgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under § 292(a). Thus, although the two Article III judges who took part in the decision of petitioners' appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners' appeals by a properly constituted panel organized "comformably to the requirements of the statute." 17 William Cramp & Sons, 228 U. S., at 651.Accordingly, we vacate the judgments of the Court of Appeals and remand these cases for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusNGUYEN v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 01-10873. Argued March 24, 2003-Decided June 9, 2003*Petitioners were tried, convicted, and sentenced on federal narcotics charges in the District Court of Guam, a territorial court with subjectmatter jurisdiction over both federal-law and local-law causes. The Ninth Circuit panel convened to hear their appeals included two judges from that court, both of whom are life-tenured Article III judges, and the Chief Judge of the District Court for the Northern Mariana Islands, an Article IV territorial-court judge appointed by the President and confirmed by the Senate for a 10-year term. Neither petitioner objected to the panel's composition before the cases were submitted for decision, and neither sought rehearing to challenge the panel's authority to decide their appeals after it affirmed their convictions. However, each filed a certiorari petition claiming that the judgment is invalid because a non-Article III judge participated on the panel.Held: The Ninth Circuit panel did not have the authority to decide petitioners' appeals. Pp.74-83.(a) In light of the relevant statutory provisions and historical usage, it is evident that Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be "district judges" within the meaning of 28 U. S. C. § 292(a), which authorizes the assignment of "one or more district judges within [a] circuit" to sit on the court of appeals "whenever the business of that court so requires." As used throughout Title 28, "district court" means a "'court of the United States'" "constituted by chapter 5 of this title." §451. Among other things, Chapter 5 creates a "United States District Court" for each judicial district, § 132(a), exhaustively enumerates the districts so constituted, § 133(a), and describes "district judges" as holding office "during good behavior," § 134(a). Significantly, the District Court for the Northern Mariana Islands is not one of the enumerated courts, nor is it even mentioned in Chapter 5. See § 133(a). Because that court's judges are appointed for a term of years and may be removed by the President for cause, they also do not satisfy § 134(a)'s command for district judges to hold office during good behavior. Although the Chief*Together with No. 02-5034, Phan v. United States, also on certiorari to the same court.70SyllabusJudge of the District Court for the Northern Mariana Islands is literally a "district judge" of a court "within the [Ninth] [C]ircuit," such a reading of § 292(a) is so capacious that it would also justify the designation of "district judges" of any number of state courts "within" the Ninth Circuit. Moreover, historically, the term "United States District Court" in Title 28 has ordinarily excluded Article IV territorial courts, even when their jurisdiction is similar to that of an Article III United States District Court. E. g., Mookini v. United States, 303 U. S. 201, 205. Pp.74-76.(b) The Government's three grounds for leaving the judgments below undisturbed are not persuasive. First, this Court's precedents concerning alleged irregularities in the assignment of judges do not compel application here of the de facto officer doctrine, which confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment to office is deficient, Ryder v. United States, 515 U. S. 177, 180. Typically, the Court has found a judge's actions to be valid de facto when there is a "merely technical" defect of statutory authority, McDowell v. United States, 159 U. S. 596, 601-602, but not when, as here, there has been a violation of a statutory provision that embodies weighty congressional policy concerning the proper organization of the federal courts, see, e. g., American Constr. Co. v. Jacksonville, T. & K. W R. Co., 148 U. S. 372, 387. Second, for essentially the same reasons, it is inappropriate to accept the Government's invitation to assess the merits of petitioners' convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. Third, the Government's argument that the presence of a quorum of two otherwise-qualified judges on the panel is sufficient to support the decision below is rejected for two reasons. The federal quorum statute, 28 U. S. C. § 46(d), has been on the books (in relevant part essentially unchanged) for over a century, yet this Court has never doubted its power to vacate a judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See, e. g., United States v. American-Foreign S. S. Corp., 363 U. S. 685. Moreover, the statute authorizing courts of appeals to sit in panels, § 46(b), requires the inclusion of at least three judges in the first instance. Although the two Article III judges who took part below would have constituted a quorum had the original panel been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. Thus, it is appropriate to return these cases to the Ninth Circuit for fresh consideration by a properly constituted panel. Pp. 77-83.284 F.3d 1086, vacated and remanded.71Full Text of Opinion

1998_98-470

Syllabusmatter determination. For example, if a federal court concludes that state law does not allow damages sufficient to meet the amount in controversy for diversity jurisdiction, see 28 U. S. C. § 1332(a), and remands to the state court on that basis, the federal court's ruling on permissible state-law damages may bind the parties in state court. Most essentially, federal and state courts are complementary systems for administering justice. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises difficult questions of state law, and subject-matter jurisdiction is resolved as easily as personal jurisdiction, a district court will ordinarily conclude that federalism concerns tip the scales in favor of initially ruling on the motion to remand. In other cases, however, the district court may find that overriding concerns of judicial economy and restraint warrant immediate dismissal for lack of personal jurisdiction. The federal design allows leeway for sensitive judgments of this sort. See Younger v. Harris, 401 U. S. 37, 44. pp. 585-587.(c) In most instances, subject-matter jurisdiction will involve no arduous inquiry, and both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first. Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex state-law question, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction. Pp. 587-588.145 F.3d 211, reversed and remanded.GINSBURG, J., delivered the opinion for a unanimous Court.Charles Alan Wright argued the cause for petitioner.With him on the briefs were Ben H. Sheppard, Jr., Harry M. Reasoner, Guy S. Lipe, and Arthur R. Miller.Clifton T. Hutchinson argued the cause for respondents.With him on the brief were J. Gregory Taylor, David J. Schenck, and David L. Shapiro. ** Brian J. Serr filed a brief for the Conference of Chief Justices as amicus curiae urging affirmance.577JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the authority of the federal courts to adjudicate controversies. Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them. In Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), this Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections "where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." Id., at 93. Recalling "a long and venerable line of our cases," id., at 94, Steel Co. reiterated: "The requirement that jurisdiction be established as a threshold matter ... is 'inflexible and without exception,'" id., at 94-95 (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884)); for "[j]urisdiction is power to declare the law," and "'[w]ithout jurisdiction the court cannot proceed at all in any cause,'" 523 U. S., at 94 (quoting Ex parte McCardle, 7 Wall. 506,514 (1869)). The Court, in Steel Co., acknowledged that "the absolute purity" of the jurisdiction-first rule had been diluted in a few extraordinary cases, 523 U. S., at 101, and JUSTICE O'CONNOR, joined by JUSTICE KENNEDY, joined the majority on the understanding that the Court's opinion did not catalog "an exhaustive list of circumstances" in which exceptions to the solid rule were appropriate, id., at 110.Steel Co. is the backdrop for the issue now before us: If, as Steel Co. held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question578of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks "[w]hether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction." Pet. for Cert. i.We hold that in cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry. The proceeding before us is such a case.IThe underlying controversy stems from a venture to produce gas in the Heimdal Field of the Norwegian North Sea. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired Marathon Petroleum Company (Norway) (MPCN) and respondent Marathon Petroleum Norge (Norge). See App. 26.1 Before the acquisition, Norge held a license to produce gas in the Heimdal Field; following the transaction, Norge assigned the license to MPCN. See Record, Exhs. 61 and 62 to Document 64. In 1981, MPCN contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. See Record, Exh. 1 to Document 63, pp. 90, 280. The parties' agreement was incor-1 Ruhrgas is a German corporation; Norge is a Norwegian corporation.See App. 21, 22. Marathon Oil Company, an Ohio corporation, and Marathon International Oil Company, a Delaware corporation, moved their principal places of business from Ohio to Texas while the venture underlying this case was in formation. See id., at 21, 239, and n. 11.579porated into the Heimdal Gas Sales Agreement (Heimdal Agreement), which is "governed by and construed in accordance with Norwegian Law," Record, Exh. B, Tab 1 to Pet. for Removal, Heimdal Agreement, p. 102; disputes thereunder are to be "exclusively and finally ... settled by arbitration in Stockholm, Sweden, in accordance with" International Chamber of Commerce rules, id., at 100.IIMarathon Oil Company, Marathon International Oil Company, and Norge (collectively, Marathon) filed this lawsuit against Ruhrgas in Texas state court on July 6, 1995, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. See App. 33-40. Marathon Oil Company and Marathon International Oil Company alleged that Ruhrgas and the other European buyers induced them with false promises of "premium prices" and guaranteed pipeline tariffs to invest over $300 million in MPCN for the development of the Heimdal Field and the erection of a pipeline to Ruhrgas' plant in Germany. See id., at 26-28; Brief for Respondents 1-2. Norge alleged that Ruhrgas' effective monopolization of the Heimdal gas diminished the value of the license Norge had assigned to MPCN. See App. 31, 33, 357; Brief for Respondents 2. Marathon asserted that Ruhrgas had furthered its plans at three meetings in Houston, Texas, and through a stream of correspondence directed to Marathon in Texas. See App. 229, 233.Ruhrgas removed the case to the District Court for the Southern District of Texas. See 145 F.3d 211, 214 (CA5 1998). In its notice of removal, Ruhrgas asserted three bases for federal jurisdiction: diversity of citizenship, see 28 U. S. C. § 1332 (1994 ed. and Supp. III), on the theory that Norge, the only nondiverse plaintiff, had been fraudulently580joined; 2 federal question, see § 1331, because Marathon's claims "raise[d] substantial questions of foreign and international relations, which are incorporated into and form part of the federal common law," App. 274; and 9 U. S. C. § 205, which authorizes removal of cases "relat[ing] to" international arbitration agreements.3 See 145 F. 3d, at 214-215; 115 F.3d 315, 319-321 (CA5), vacated and rehearing en banc granted, 129 F.3d 746 (1997). Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. See 145 F. 3d, at 215.After permitting jurisdictional discovery, the District Court dismissed the case for lack of personal jurisdiction. See App. 455. In so ruling, the District Court relied on Fifth Circuit precedent allowing district courts to adjudicate personal jurisdiction without first establishing subjectmatter jurisdiction. See id., at 445. Texas' long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (1997), authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution. See App. 446; Kawasaki Steel Corp. v. Middleton, 699 S. W. 2d 199, 200 (Tex. 1985). The District Court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction.2 A suit between "citizens of a State and citizens or subjects of a foreign state" lies within federal diversity jurisdiction. 28 U. S. C. § 1332(a)(2). Section 1332 has been interpreted to require "complete diversity." See Strawbridge v. Curtiss, 3 Cranch 267 (1806); R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1528-1531 (4th ed. 1996). The foreign citizenship of defendant Ruhrgas, a German corporation, and plaintiff Norge, a Norwegian corporation, rendered diversity incomplete.3 Title 9 U. S. C. § 205 allows removal "[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958]."581See App. 445-454. Finding "no evidence that Ruhrgas engaged in any tortious conduct in Texas," id., at 450, the court determined that Marathon's complaint did not present circumstances adequately affiliating Ruhrgas with Texas, see id., at 448.4A panel of the Court of Appeals for the Fifth Circuit concluded that "respec[t]" for "the proper balance of federalism" impelled it to turn first to "the formidable subject matter jurisdiction issue presented." 115 F. 3d, at 318. After examining and rejecting each of Ruhrgas' asserted bases of federal jurisdiction, see id., at 319-321,5 the Court of Appeals vacated the judgment of the District Court and ordered the case remanded to the state court, see id., at 321. This Court denied Ruhrgas' petition for a writ of certiorari, which was4 Respecting the three meetings Ruhrgas attended in Houston, Texas, see supra, at 579, the District Court concluded that Marathon had not shown that Ruhrgas pursued the alleged pattern of fraud and misrepresentation during the Houston meetings. See App. 449. The court further found that Ruhrgas attended those meetings "due to the [Heimdal Agreement] with MPCN." Id., at 450. As the Heimdal Agreement provides for arbitration in Sweden, the court reasoned, "Ruhrgas could not have expected to be haled into Texas courts based on these meetings." Ibid. The court also determined that Ruhrgas did not have "systematic and continuous contacts with Texas" of the kind that would "subject it to general jurisdiction in Texas." Id., at 453 (citing Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 (1984)).5The Court of Appeals concluded that whether Norge had a legal interest in the Heimdallicense notwithstanding its assignment to MPCN likely turned on difficult questions of Norwegian law; Ruhrgas therefore could not show, at the outset, that Norge had been fraudulently joined as a plaintiff to defeat diversity. See 115 F.3d 315, 319-320 (CA5), vacated and rehearing en banc granted, 129 F.3d 746 (1997). The appeals court also determined that Marathon's claims did not "strike at the sovereignty of a foreign nation," so as to raise a federal question on that account. 115 F. 3d, at 320. Finally, the court concluded that Marathon asserted claims independent of the Heimdal Agreement and that the case therefore did not "relat[e] to" an international arbitration agreement under 9 U. S. C. § 205. See 115 F. 3d, at 320-321.582limited to the question whether subject-matter jurisdiction existed under 9 U. S. C. § 205. See 522 U. S. 967 (1997).The Fifth Circuit, on its own motion, granted rehearing en bane, thereby vacating the panel decision. See 129 F.3d 746 (1997). In a 9-to-7 decision, the en bane court held that, in removed cases, district courts must decide issues of subjectmatter jurisdiction first, reaching issues of personal jurisdiction "only if subject-matter jurisdiction is found to exist." 145 F. 3d, at 214. Noting Steel CO.'s instruction that subject-matter jurisdiction must be " 'established as a threshold matter,'" 145 F. 3d, at 217 (quoting 523 U. S., at 94), the Court of Appeals derived from that decision "counsel against" recognition of judicial discretion to proceed directly to personal jurisdiction. 145 F. 3d, at 218. The court limited its holding to removed cases; it perceived in those cases the most grave threat that federal courts would "usur[p] ... state courts' residual jurisdiction." Id., at 219.6Writing for the seven dissenters, Judge Higginbotham agreed that subject-matter jurisdiction ordinarily should be considered first. See id., at 231. If the challenge to personal jurisdiction involves no complex state-law questions, however, and is more readily resolved than the challenge to subject-matter jurisdiction, the District Court, in the dissenters' view, should take the easier route. See ibid. Judge Higginbotham regarded the District Court's decision dismissing Marathon's case as illustrative and appropriate:While Ruhrgas' argument under 9 U. S. C. § 205 presented a difficult issue of first impression, its personal jurisdiction challenge raised "[n]o substantial questions of purely state law," and "could be resolved relatively easily in [Ruhrgas'] favor." 145 F. 3d, at 232-233.6 The Fifth Circuit remanded the case to the District Court for it to consider the "nove[l]" subject-matter jurisdiction issues presented. 145 F.3d 211, 225 (CA5 1998). The appeals court "express[ed] no opinion" on the vacated panel decision which had held that the District Court lacked subject-matter jurisdiction. Id., at 225, n. 23.583We granted certiorari, 525 U. S. 1039 (1998), to resolve a conflict between the Circuits 7 and now reverse.IIISteel Co. held that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case. "For a court to pronounce upon [the merits] when it has no jurisdiction to do so," Steel Co. declared, "is ... for a court to act ultra vires." 523 U. S., at 101-102. The Fifth Circuit incorrectly read Steel Co. to teach that subject-matter jurisdiction must be found to exist, not only before a federal court reaches the merits, but also before personal jurisdiction is addressed. See 145 F. 3d, at 218.AThe Court of Appeals accorded priority to the requirement of subject-matter jurisdiction because it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. See id., at 217-218. The character of the two jurisdictional bedrocks unquestionably differs. Subject-matter limitations on federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level. See Steel Co., 523 U. S., at 94-95; Fed. Rule Civ. Proc. 12(h)(3) ("Whenever it appears ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); 28 U. S. C. § 1447(c) (1994 ed., Supp. III) ("If at any time before final judgment [in a removed case] it appears that the7 The Court of Appeals for the Second Circuit has concluded that district courts have discretion to dismiss a removed case for want of personal jurisdiction without reaching the issue of subject-matter jurisdiction. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F.3d 152, 155 (1996).584district court lacks subject matter jurisdiction, the case shall be remanded.").Personal jurisdiction, on the other hand, "represents a restriction on judicial power ... as a matter of individual liberty." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority. See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person waivable); Insurance Corp. of Ireland, 456 U. S., at 703 (same).These distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is "an essential element of the jurisdiction of a district ... court," without which the court is "powerless to proceed to an adjudication." Employers Reinsurance Corp. v. Bryant, 299 U. S. 374, 382 (1937). In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies-lack of complete diversity-rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by 28 U. S. C. § 1332 (1994 ed. and Supp. III), but not by Article III, see State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530-531 (1967), is absent. In contrast, Ruhrgas relies on the constitutional safeguard of due process to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland, 456 U. S., at 702 ("The requirement that a court have personal jurisdiction flows ... from the Due Process Clause.").While Steel Co. reasoned that subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues. "[A] court that dismisses on ... non-merits grounds such as ... personal jurisdiction, before finding subject-matter jurisdiction, makes no assumption of law-declaring power585that violates the separation of powers principles underlying Mansfield and Steel Company." In re Papandreou, 139 F. 3d 247,255 (CADC 1998). It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel Co., district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see Moor v. County of Alameda, 411 U. S. 693, 715-716 (1973), or abstain under Younger v. Harris, 401 U. S. 37 (1971), without deciding whether the parties present a case or controversy, see Ellis v. Dyson, 421 U. S. 426, 433-434 (1975). See Steel Co., 523 U. S., at 100-101, n. 3; cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 66-67 (1997) (pretermitting challenge to appellants' standing and dismissing on mootness grounds).BMaintaining that subject-matter jurisdiction must be decided first even when the litigation originates in federal court, see Tr. of Oral Arg. 21; Brief for Respondents 13, Marathon sees removal as the more offensive case, on the ground that the dignity of state courts is immediately at stake. If a federal court dismisses a removed case for want of personal jurisdiction, that determination may preclude the parties from relitigating the very same personal jurisdiction issue in state court. See Baldwin v. Iowa State Traveling Men's Assn., 283 U. S. 522, 524-527 (1931) (personal jurisdiction ruling has issue-preclusive effect).Issue preclusion in subsequent state-court litigation, however, may also attend a federal court's subject-matter determination. Ruhrgas hypothesizes, for example, a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract. See Tr. of Oral Arg. 10-11. If the district court determines that state law does not allow puni-586tive damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, see 28 U. S. C. § 1332(a) (1994 ed., Supp. III) ($75,000), the federal court's conclusion will travel back with the case. Assuming a fair airing of the issue in federal court, that court's ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 376 (1940) ("[Federal courts'] determinations of [whether they have jurisdiction to entertain a case] may not be assailed collaterally."); Restatement (Second) of Judgments § 12, p. 115 (1980) ("When a court has rendered a judgment in a contested action, the judgment [ordinarily] precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation."). Similarly, as Judge Higginbotham observed, our "dualistic ... system of federal and state courts" allows federal courts to make issue-preclusive rulings about state law in the exercise of supplemental jurisdiction under 28 U. S. C. § 1367. 145Most essentially, federal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises "difficult questions of [state] law," and subject-matter jurisdiction is resolved "as eas[ily]" as personal jurisdiction, a district court will ordinarily conclude that "federalism concerns tip the scales in favor of initially ruling on the motion to remand." Allen v. Ferguson, 791 F.2d 611, 616 (CA7 1986). In other cases, however, the district court may find that concerns of judicial economy and restraint are overriding. See, e. g., Asociacion Nacional de Pescadores v. Dow Quimica, 988 F. 2d 559, 566-567 (CA5 1993) (if removal is nonfrivolous and587personal jurisdiction turns on federal constitutional issues, "federal intrusion into state courts' authority ... is minimized"). The federal design allows leeway for sensitive judgments of this sort. " 'Our Federalism' ""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." Younger, 401 U. S., at 44.The Fifth Circuit and Marathon posit that state-court defendants will abuse the federal system with opportunistic removals. A discretionary rule, they suggest, will encourage manufactured, convoluted federal subject-matter theories designed to wrench cases from state court. See 145 F. 3d, at 219; Brief for Respondents 28-29. This specter of unwarranted removal, we have recently observed, "rests on an assumption we do not indulge-that district courts generally will not comprehend, or will balk at applying, the rules on removal Congress has prescribed .... The well-advised defendant ... will foresee the likely outcome of an unwarranted removal-a swift and nonreviewable remand order, see 28 U. S. C. §§ 1447(c), (d), attended by the displeasure of a district court whose authority has been improperly invoked." Caterpillar Inc. v. Lewis, 519 U. S. 61, 77-78 (1996).CIn accord with Judge Higginbotham, we recognize that in most instances subject-matter jurisdiction will involve no arduous inquiry. See 145 F. 3d, at 229 ("engag[ing]" subjectmatter jurisdiction "at the outset of a case ... [is] often ... the most efficient way of going"). In such cases, both expedition and sensitivity to state courts' coequal stature should588impel the federal court to dispose of that issue first. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F.3d 152, 155 (CA2 1996) (a court disposing of a case on personal jurisdiction grounds "should be convinced that the challenge to the court's subject-matter jurisdiction is not easily resolved"). Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.8***For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusRUHRGAS AG v. MARATHON OIL CO. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 98-470. Argued March 22, 1999-Decided May 17, 1999The underlying controversy stems from a venture to produce gas in the North Sea's Heimdal Field. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired respondent Marathon Petroleum Norge (Norge) and Marathon Petroleum Company (Norway) (MPCN). Following the acquisition, Norge assigned its license to produce gas in the Heimdal Field to MPCN, which then contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. MPCN's sales agreement with Ruhrgas and the other European buyers provided that disputes would be settled by arbitration in Sweden. In 1995, Marathon Oil Company, Marathon International Oil Company, and Norge (collectively Marathon) sued Ruhrgas in Texas state court, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. Marathon alleged that Ruhrgas had defrauded it into financing MPCN's development of the Heimdal Field and that Ruhrgas had diminished the value of the license Norge had assigned to MPCN. Ruhrgas removed the case to the District Court, asserting three bases for federal jurisdiction: diversity of citizenship, see 28 U. S. C. § 1332, on the theory that Norge, the only nondiverse plaintiff, had been fraudulently joined; federal question, see § 1331, because Marathon's claims raised questions of international relations; and 9 U. S. C. § 205, which authorizes removal of cases relating to international arbitration agreements. Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subjectmatter jurisdiction. The District Court granted Ruhrgas' motion. Noting that Texas' long-arm statute authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution, the court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction. The en banc Fifth Circuit vacated and remanded, holding that, in removed cases, district courts must decide issues of subjectmatter jurisdiction first, reaching issues of personal jurisdiction only if subject-matter jurisdiction is found to exist. The court derived "counsel against" recognizing judicial discretion to proceed directly to per-575sonal jurisdiction from Steel Co. v. Citizens for Better Environment, 523 U. S. 83, in which this Court held that Article III generally requires a federal court to satisfy itself of its subject-matter jurisdiction before it considers the merits of a case. The Fifth Circuit limited its holding to removed cases, perceiving in them the most grave threat that federal courts would usurp state courts' residual jurisdiction.Held: In cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy requiring the federal court to adjudicate subject-matter jurisdiction before considering a challenge to personal jurisdiction. Pp. 583-588.(a) The Fifth Circuit erred in according absolute priority to the subject-matter jurisdiction requirement on the ground that it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. Although the character of the two jurisdictional bedrocks unquestionably differs, the distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is an essential element of district court jurisdiction, without which the court is powerless to proceed to an adjudication. Employers Reinsurance Corp. v. Bryant, 299 U. S. 374, 382. In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies-lack of complete diversity-rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by § 1332, but not by Article III of the Constitution, see State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530-531, is absent. In contrast, Ruhrgas relies on the constitutional due process safeguard to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702. The Steel Co. jurisdiction-before-merits principle does not dictate a sequencing of jurisdictional issues. A court that dismisses for want of personal jurisdiction, without first ruling on subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Steel Co. pp. 583-585.(b) The Court rejects Marathon's assertion that it is particularly offensive in removed cases to rule on personal jurisdiction without first deciding subject-matter jurisdiction, because the federal court's personal jurisdiction determination may preclude the parties from relitigating the very same issue in state court. See Baldwin v. Iowa State Traveling Men's Assn., 283 U. S. 522,524-527. Issue preclusion in subsequent state-court litigation may also attend a federal court's subject-576Full Text of Opinion

1989_89-601

Justice STEVENS delivered the opinion of the Court.The Equal Access to Justice Act (EAJA) directs a court to award "fees and other expenses" to private parties who prevail in litigation against the United States if, among other conditions, the position of the United States was not "substantially justified." [Footnote 1] In many cases, parties are able to resolve by stipulation a claim for fees under the EAJA. In some cases, however, a fee application will prompt the Government to litigate aspects of the fee request or require the Page 496 U. S. 156 court to convene a hearing before deciding if an award of fees and expenses is authorized. The question in this case is whether a prevailing party is ineligible for fees for the services rendered during such a proceeding unless the Government's position in the fee litigation itself is not "substantially justified."Because the question for decision is so narrow -- affecting only eligibility for compensation for services rendered for fee litigation rather than the amount that may be appropriately awarded for such services -- it is not necessary to restate the protracted history of this vigorously contested litigation. [Footnote 2] It is sufficient to note that the District Court expressly found that respondents"were the prevailing parties within the meaning of the Act, that the government's position was not substantially justified, and that there are no other special circumstances that would make an award unjust. [Footnote 3]"The Court of Appeals upheld these findings. Jean v. Nelson, 863 F.2d Page 496 U. S. 157 759, 765-769 (CA11 1988). After an extensive review of the record developed at the fee hearing, however, the Court of Appeals decided that certain errors required that the case "be remanded for recalculation of attorney's fees and expenses." Id. at 780. In view of this holding, we must assume that at least some of the positions the Government took regarding the proper fee were substantially justified, even though its position on the merits of the litigation was not. Thus, the record squarely presents the question whether the District Court must make a second finding of no "substantial justification" before awarding respondent any fees for the fee litigation.The Government concedes that fees for time and expenses incurred in applying for fees are appropriate, but takes the position that, unless the court finds that the Government's position in the fee litigation itself was not substantially justified, fees for any litigation about fees are not recoverable. [Footnote 4] It is respondents' position that fee litigation is a component part of an integrated case, and that, if the statutory prerequisites for an award of fees for prevailing in the case are satisfied, the award presumptively encompasses services for fee litigation. Because the Courts of Appeals have resolved this question differently, we granted certiorari. 493 U.S. 1055 (1990). [Footnote 5] Page 496 U. S. 158ISection 2412(d)(1)(A) of Title 28 provides:"Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a "prevailing party"; (2) that the Government's position was not "substantially justified"; (3) that no "special circumstances make an award unjust"; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement. Only the application of the "substantially justified" condition is at issue in this case. [Footnote 6] The most telling answer to the Government's submission that it may assert a "substantial justification" defense at multiple Page 496 U. S. 159 stages of an action is the complete absence of any textual support for this position. Subsection (d)(1)(A) refers to an award of fees "in any civil action" without any reference to separate parts of the litigation, such as discovery requests, fees or appeals. The reference to "the position of the United States" in the singular also suggests that the court need make only one finding about the justification of that position.In 1985, Congress amended the EAJA, adding the following definition:"(D) 'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings."Pub.L. 99-80, 99 Stat. 185, § 2(c)(2)(B), 28 U.S.C. § 2412(d)(2)(D). The fact that the "position" is again denominated in the singular, although it may encompass both the agency's prelitigation conduct and the Department of Justice's subsequent litigation positions, buttresses the conclusion that only one threshold determination for the entire civil action is to be made. [Footnote 7] Page 496 U. S. 160The language Congress chose in describing the fee application procedure in 28 U.S.C. § 2412(d)(1)(B), corroborates the statute's other references to a single finding. A fee application must contain an allegation "that the position of the United States was not substantially justified." Ibid. Again, the reference is to only one position, and it is to a position that the Government took in the past. There is no reference to the position the Government may take in response to the fee application. Moreover, the 1985 amendment to § 2412(d)(1)(B) directs a court to determine whether the Government's past position was substantially justified"on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought."Pub.L. 99-80, 99 Stat. 184-185, § 2(b), 28 U.S.C. § 2412(d)(1)(B). The reference to "the record" in the civil action is again in the singular. [Footnote 8]The single finding that the Government's position lacks substantial justification, like the determination that a claimant is a "prevailing party," thus operates as a one-time threshold for fee eligibility. In EAJA cases, the Court first must determine if the applicant is a "prevailing party" by evaluating the degree of success obtained. If the Government then asserts an exception for substantial justification or for circumstances that render an award unjust, the court must make a second finding regarding these additional threshold conditions. As we held in Hensley v. Eckerhart, 461 U. S. 424 (1983), the "prevailing party" requirement is"a generous formulation that brings the plaintiff only across the Page 496 U. S. 161 statutory threshold. It remains for the district court to determine what fee is 'reasonable.'"Id. at 461 U. S. 433. Similarly, once a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley. See id. at 461 U. S. 433-437.In Hensley, we emphasized that it is appropriate to allow the district court discretion to determine the amount of a fee award, given its "superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Id. at 461 U. S. 437. EAJA prescribes a similar flexibility. Section 2412(d)(1)(C) empowers the district court, "in its discretion," to"reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy."This exception to a fee award was repeated in the 1985 amendment that added a definition of "position of the United States," by there excluding fees and expenses "for any portion of the litigation in which the party has unreasonably protracted the proceedings." Supra at 496 U. S. 159; 28 U.S.C. § 2412(d)(2)(D). Thus, absent unreasonably dilatory conduct by the prevailing party in "any portion" of the litigation which would justify denying fees for that portion, a fee award presumptively encompasses all aspects of the civil action. [Footnote 9]Any given civil action can have numerous phases. While the parties' postures on individual matters may be more or less justified, the EAJA -- like other fee-shifting statutes -- favors Page 496 U. S. 162 treating a case as an inclusive whole, rather than as atomized line-items. See, e.g., Sullivan v. Hudson, 490 U. S. 877, 490 U. S. 888 (1989) (where administrative proceedings are "necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded"). Cf. Gagne v. Maher, 594 F.2d 336, 344 (CA2 1979) ("denying attorneys' fees for time spent in obtaining them would dilute the value of a fees award by forcing attorneys into extensive, uncompensated litigation in order to gain any fees'" under § 1988), aff'd on other grounds, 448 U. S. 122 (1980); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U. S. 546, 478 U. S. 559 (1986) (fees for post-judgment proceedings to enforce consent decree properly compensable as a cost of litigation under § 304(d) of the Clean Air Act), New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980) (fees for administrative proceedings included under § 706(k) of Title VII of the Civil Rights Act of 1964). The Government acknowledges that the EAJA may provide compensation for all aspects of fee litigation; it only disputes the finding necessary to support such an award. It would allow, without a specific threshold determination, fees for "`the time spent preparing the EAJA fee application . . . because it is "necessary for the preparation of the party's case[,]" 28 U.S.C. § 2414(d)(2)(A),'" but it would subject a fee request for any further work in pursuing that application to an additional substantial justification defense. Brief for Petitioners 16, n. 17 (quoting Kelly v. Bowen, 862 F.2d 1333, 1334 (CA8 1988)); see n 4, supra. We find no textual or logical argument for treating so differently a party's preparation of a fee application and its ensuing efforts to support that same application.IIThe Government further argues, as a matter of policy, that the allowance of an automatic award of "fees for fees" will encourage exorbitant fee requests, generate needless litigation, and Page 496 U. S. 163 unreasonably burden the federal fisc. Brief for Petitioners 26-31. The terms of the statute, as well as its structure and purpose, identify at least two responses to these arguments.First, no award of fees is "automatic." Eligibility for fees is established upon meeting the four conditions set out by the statute, but a district court will always retain substantial discretion in fixing the amount of an EAJA award. Exorbitant, unfounded, or procedurally defective fee applications -- like any other improper position that may unreasonably protract proceedings -- are matters that the district court can recognize and discount. [Footnote 10] The Government's fear that such requests will receive "automatic" approval is unfounded. In contrast, requiring courts to make a separate finding of "substantial justification" regarding the Government's opposition to fee requests would multiply litigation. "A request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437. As the Government admits, allowing a substantial justification exception to fee litigation theoretically can spawn a "Kafkaesque judicial nightmare" of infinite litigation to recover fees for the last round of litigation over fees. Brief for Petitioners 29; Cinciarelli v. Reagan, 234 U.S.App. D.C. 315, 324, 729 F.2d 801, 810 (1984).Second, the specific purpose of the EAJA is to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions. See Sullivan v. Hudson, 490 U.S. at 490 U. S. 883 (1989). [Footnote 11] The EAJA applies to a wide range of Page 496 U. S. 164 awards in which the cost of litigating fee disputes would equal or exceed the cost of litigating the merits of the claim. [Footnote 12] If the Government could impose the cost of fee litigation on prevailing parties by asserting a "substantially justified" defense to fee applications, the financial deterrent that the EAJA aims to eliminate would be resurrected. The Government's general interest in protecting the federal fisc [Footnote 13] is subordinate to the specific statutory goals of encouraging private parties to Page 496 U. S. 165 vindicate their rights and "curbing excessive regulation and the unreasonable exercise of Government authority." [Footnote 14]The "substantial justification" requirement of the EAJA establishes a clear threshold for determining a prevailing party's eligibility for fees, one that properly focuses on the governmental misconduct giving rise to the litigation. EAJA further provides district courts discretion to adjust the amount of fees for various portions of the litigation, Page 496 U. S. 166 guided by reason and statutory criteria. The purpose and legislative history of the statute reinforce our conclusion that Congress intended EAJA to cover the cost of all phases of successful civil litigation addressed by the statute.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtCommissioner, INS v. Jean, 496 U.S. 154 (1990)Commissioner, Immigration and Naturalization Service v. JeanNo. 89-601Argued April 23, 1990Decided June 4, 1990496 U.S. 154SyllabusThe Equal Access to Justice Act (EAJA) directs a court to award fees and other expenses to private parties who prevail in litigation against the United States if, inter alia, the Government's position was not "substantially justified." 28 U.S.C. § 2412(d)(1)(A). The District Court found that respondents were prevailing parties within the meaning of the EAJA, the Government's position was not substantially justified, and there were no other special circumstances that would make a fee award unjust. The Court of Appeals upheld these findings, but remanded for recalculation of fees. Although the Government concedes that fees for time and expenses incurred in applying for fees are appropriate, it contends that respondents are ineligible for fees for services rendered during the substantial litigation over the fees unless the Court finds that the Government's position in the fee litigation itself was not substantially justified.Held: A second "substantial justification" finding is not required before EAJA fees are awarded for fee litigation itself. Pp. 496 U. S. 158-166.(a) The EAJA's "substantial justification" requirement is a single finding that operates as a clear threshold for determining a prevailing party's fee eligibility. Once a litigant has met all of the eligibility conditions for fees, the district court has the discretion to adjust the amount of fees for various portions of the litigation, guided by reason and the statutory criteria. See Hensley v. Eckerhart, 461 U. S. 424. There is no textual support for the position that the Government may assert a "substantial justification" defense at multiple stages of an action, since the EAJA refers only to a single "position," §§ 2412(d)(1)(A) and (d)(2)(D), that the Government has taken in the past, § 2412(d)(1)(B), in "any civil action," § 2412(d)(1)(A). Pp. 496 U. S. 158-162.(b) The Government's argument that automatic awards of "fees for fees" will encourage exorbitant fee requests, generate needless litigation, and unreasonably burden the federal fisc is rejected. First, no fee award is automatic, since a district court always has discretion to fix the amount of the award once eligibility is established. In contrast, requiring courts to make a separate "substantial justification" finding regarding the Government's opposition to fee requests would multiply litigation. Second, the EAJA's purpose to eliminate the average person's financial Page 496 U. S. 155 disincentive to challenge unreasonable governmental actions would be defeated if the Government could impose on prevailing parties the costs of litigating fee requests, costs that may exceed those incurred in litigating the claim's merits. Pp. 496 U. S. 162-166.863 F.2d 759 (CA 11 1988), affirmed.STEVENS, J., delivered the opinion for a unanimous Court.

1974_73-1406

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the issue of the constitutionality of a federal court-ordered reapportionment of the North Dakota Legislature, called in that State the Legislative Assembly. That State, like many others, has struggled to satisfy constitutional requirements for legislative apportionment delineated in Baker v. Carr, 369 U. S. 186 (1962); Reynolds v. Sims, 377 U. S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U. S. 633 (1964); Maryland Committee v. Tawes, 377 U. S. 656 (1964); Davis v. Mann, 377 U. S. 678 (1964); Roman v. Sincock, 377 U. S. 695 (1964); Lucas v. Colorado General Assembly, 377 U. S. 713 (1964), and other cases. This litigation is the culmination of that struggle, totally ineffectual on the legislative side, during the past decade.IThe State's Constitution and Its StatutesNorth Dakota's original Constitution, adopted at the State's admission into the Union in 1889, is still in effect. It has been amended, of course, from time to time. Since 1918, § 25 thereof has read: "The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives." N.D.Const. Art. II, § 25. That legislative power for 70 years has been subject to the initiative and the referendum. Ibid. The Constitution has further provided that the State's senate "shall be composed of forty-nine members," § 26, elected for a four-year term, § 27, with one-half thereof elected every two years, § 30, and that no one shall be a senator unless he is a qualified elector of the senatorial district, has attained the age of 25 years, and has been a Page 420 U. S. 4 resident of the State for the two years next preceding the election, § 28. Since 1960, § 29 has read:"Each existing senatorial district as provided by law at the effective date of this amendment shall permanently constitute a senatorial district. Each senatorial district shall be represented by one senator and no more. [Footnote 1]"1 Laws 1959, c. 438; Laws 1961, c.405.The document also states that the house of representatives "shall be composed of not less than sixty, nor more than one hundred forty members," § 32, elected for a two-year term, § 33, and that no one shall be a representative unless he is a qualified elector of the district, has attained the age of 21 years, and has been a resident of the State for the two years next preceding the election, § 34. Section 35 provides for at least one representative for each senatorial district and for as many representatives as there are counties in the district; states that the Legislative Assembly, after each federal decennial census, shall apportion "the balance of the members of the House of Representatives," and, if the Legislative Assembly fails in its apportionment duty, places the task of apportioning the house in a designated group of officials of the state. [Footnote 2] Page 420 U. S. 5There have been complementary statutory provisions. An apportionment effected by Laws 1931, c. 7, N.D.Cent.Code § 503-01 (1960), was in effect for over 30 years despite the mandate of § 35 of the Constitution that apportionment be effected after each federal census.IIPrior LitigationA. Things began to stir in North Dakota even prior to this Court's decision in Baker v. Carr in 1962. The State's Legislative Assembly of 1961 had failed to apportion the house following the 1960 census. After Baker Page 420 U. S. 6 had been decided at the District Court level, 179 F. Supp. 824 (MD Tenn.1959), and between the argument and reargument of the case here, the Supreme Court of North Dakota dismissed an original action for a prerogative writ to enjoin its Chief Justice from issuing the apportionment proclamation which would have announced the conclusions of the statutorily designated "apportionment group" that were then anticipated. The petition asserted that the group's plan would apportion the house in an unconstitutional manner and not according to population. The Supreme Court ruled that the function of the group was legislative; that it had not yet completed its work; that it was performing a function the Legislative Assembly should have performed; and that, until the proclamation was issued, the group's action was not subject to challenge in the courts. State ex rel. Aamoth v. Sathre, 110 N.W.2d 228 (1961).B. Citizens of North Dakota then sought declaratory and injunctive relief in federal court under the Civil Rights Acts, 42 U.S.C. §§ 1983 and 1988. By this time, the State's Chief Justice had issued the proclamation. A three-judge District Court held that the presence of the proclamation eliminated the aspect of prematurity that had characterized the earlier challenge in the state court. But the "basic issues," the court concluded with one dissent, had not been presented to the Supreme Court of North Dakota. "We believe that court should have the opportunity of passing on all questions herein." The court, accordingly, abstained from passing upon those issues; it stayed further proceedings before it, but did not dismiss the action. Lein v. Sathre, 201 F. Supp. 535, 542 (ND 1962).C. The plaintiffs in the federal case promptly took to the Supreme Court of North Dakota their attack upon the plan adopted by the apportionment group. That Page 420 U. S. 7 court assumed jurisdiction. State ex rel. Lein v. Sathre, 113 N.W.2d 679, 681 (1962). It noted that no question arising under the United States Constitution was presented, id. at 681-682, and that it was not concerned with the validity of the allotment of one representative to each senatorial district, as prescribed by the first sentence of § 35 of the Constitution, id. at 683. The court recognized that there was inherent in a constitutional direction to apportion according to population "a limited discretion to make the apportionment that will approach, as nearly as is reasonably possible, a mathematical equality." Id. at 685. It then went on to hold that the apportionment made by the group "violates the constitutional mandate of apportionment according to the population of the several districts and is void," id. at 687, and that the apportionment effected by the 1931 statute continued to be the law until superseded by an apportionment valid under § 35 or under a further amendment of the Constitution. Id. at 687-688.D. The same plaintiffs then turned again to the federal court. The three-judge court, with one judge dissenting, denied the request for injunctive relief on the ground that the only challenge before it was to the apportionment group's plan, and that the 1931 apportionment was not challenged. Lein v. Sathre, 205 F. Supp. 536 (ND 1962). It noted that the Legislative Assembly would meet the following January, that it had "the mandatory duty" to apportion the house, and that the court would not presume that it would not perform that duty. Jurisdiction was retained, with the observation that, if the Legislative Assembly failed to act, the plaintiffs, upon appropriate amendment of their complaint, might further petition the court for relief. Id. at 540.E. The 1963 Legislative Assembly did reapportion. Laws 1963, c. 345. Page 420 U. S. 8F. Reynolds v. Sims, 377 U. S. 533, and its companion cases were decided in June, 1964. A new suit then was instituted in federal court to invalidate North Dakota's entire apportionment system on federal constitutional grounds. Sections 26, 29, and 35 of the Constitution and the 1963 statute were challenged. The three-judge court held that these constitutional and statutory provisions were violative of the Equal Protection Clause. Paulson v. Meier, 232 F. Supp. 183 (ND 1964). It went on to hold that the 1931 apportionment, being "the last valid apportionment," as described by the North Dakota Supreme Court, and by which the 1963 legislators had been elected, was also invalid. Thus, "there is no constitutionally valid legislative apportionment law in existence in the State of North Dakota at this time." Id. at 187. The court encountered difficulty as to an appropriate remedy. It concluded, one judge dissenting, that adequate time was not available within which to formulate a proper plan for the then forthcoming 1964 elections, id. at 188; that the 1965 Legislative Assembly would have a de facto status; and that that Assembly should promptly devise a constitutional system. Injunctive relief was denied. Id. at 190G. The 1965 Legislative Assembly produced a reapportionment act, although it was not approved or disapproved by the Governor. Laws 1965, c. 338.H. The North Dakota Secretary of State, defendant in the federal court, then moved to dismiss the federal action on the ground that the 1965 act met constitutional requirements. The three-judge court, however, ruled otherwise. Paulson v. Meier, 246 F. Supp. 36, 43 (ND 1965). It turned to the question of remedy and concluded that the Legislative Assembly had had its opportunity and that the court now had the duty itself to take affirmative action. Id. at 43-44. It considered Page 420 U. S. 9 several plans that had been introduced in the Assembly and centered its attention on the Smith plan. Although the court found the plan "not perfect" (five multi-member senatorial districts, [Footnote 3] and county lines violated in 12 instances), it concluded that the plan, if "slightly" modified, would meet constitutional standards ("impressive mathematical exactness," namely, 25 of 39 districts within 5% of the average population, four slightly over 5%, and only two exceeding 9%). Id. at 44-45. The "slight" modification was made and reapportionment, really the first to be finally effected since 1931, was therefore accomplished in North Dakota by federal court intervention.I. Still another original proceeding in the State's Supreme Court was instituted. This one challenged the right of senators from the multi-member districts to hold office. It was claimed that this multiple membership violated § 29 of the North Dakota Constitution, which provided that each senatorial district "shall be represented by one senator and no more." The state court held that the 1965 judgment of the federal court was not res judicata as to the then plaintiffs; that the initial or "freezing" portion of § 29 was clearly invalid; that the concluding portion, restricting representation of a district to one senator, would not have been desired by the people without the "balance" of the freezing portion; and that § 29 as a unit must fall as violative of equal protection. State ex rel. Stockman v. Anderson, 184 N.W.2d 53 (1971). The result was that multi-member senatorial districts were not held illegal by the state court. Page 420 U. S. 10IIIThe Present litigationThe 1970 federal census was taken in due course. The 1971 Legislative Assembly failed to reapportion. The present federal action was instituted the following November. The plaintiffs alleged that substantial shifts in population had taken place, and that the court-ordered plan of 1965 no longer complied with the requirements of the Equal Protection Clause. The relief requested was that the court order apportionment upon the 1970 census figures and also provide for single member districts; that the 1965 plan be declared invalid; and that the Secretary of State be restrained from administering the election laws under that plan.On May 22, 1972, the three-judge court entered an order to the effect that the existing North Dakota apportionment failed to meet federal constitutional standards and that the court would attempt to reapportion. Jurisdictional Statement A-54. It appointed a commission to formulate and present a plan within 30 days, and it submitted guidelines to the commission. With respect to multi-member districts, the order provided:"We have considered the matter of 'multi-member' districts, and conclude there is insufficient time prior to the 1972 elections to fully explore and resolve the issues involved. The matter of 'multi-member' districts will be studied in depth by the Commission, and the results of that study be made available to us."Id. at A-55.An opinion was filed on June 30. 372 F. Supp. 363 (ND). This recited that the commission had presented eight separate plans to the court; that shifts in population since 1960 had resulted in constitutionally impermissible population variations among existing districts; Page 420 U. S. 11 that a plan submitted by Commissioner Dobson substantially reduced the disproportionate representation, although it decreased the number of districts by one and increased the number of senators by two and the number of representatives by four. [Footnote 4] "[C]ertain weaknesses" in the plan were recognized, including "some variance in population . . . which, in a few instances, seems substantial," and a continuation of multi-member districts. Id. at 366. These districts included the State's five largest cities. The court noted that the districts had been created not by enactment of the Legislative Assembly, but by the federal court in the 1965 Paulson decision, and observed, ibid.:"In light of subsequent [United States] Supreme Court pronouncements, we believe it would be improper for this Court to permit their continuation in a court-fashioned plan."Connor v. Johnson, 402 U. S. 690 (1971), and Connor v. Williams, 404 U. S. 549, 404 U. S. 551 (1972), were cited. The court, however, felt"constrained to permit multi-member districts to continue during the 1972 elections . . . to avoid extreme disruptions in the elective processes. . . . We feel that the electorate will be better served by minimizing the confusion surrounding the impending elections than it would be by the abolition of multi-member districts at this eleventh hour."372 F. Supp. at 366. The Dobson plan was therefore approved "for the 1972 election only." Id. at 367. An alternative, the Ostenson plan, was commended to the commission for "further study," with a direction to modify it "so as to eliminate the existing multi-member senate districts." Id. at 367-368. Chief District Judge Benson dissented as to the limitation of the Dobson plan to the 1972 election; for Page 420 U. S. 12 him, the Connor litigation was distinguishable on racial grounds, and the desirability of multi-member districts was a question for the Legislative Assembly, and not for the court. Id. at 368-369. Jurisdiction was retained.On November 8, 1972, immediately after the election that year, the three-judge court suspended its June 30 order until further notice and directed the State's Attorney General promptly to report any action taken by the 1973 Legislative Assembly.That Assembly not only passed an apportionment Act but overrode its veto by the Governor. [Footnote 5] Laws 1973, C. 411, and Note, at 1178. The Act provided for 37 legislative districts, each having one senator and two representatives, except for five multi-member senatorial districts. Section 3 thereof specifically recited the population of each district and the population variance (plus 3.3% to minus 3.5%, a total of 6.8%; or plus 408 persons to minus 432 persons, a total of 840 persons) from the average of 12,355 per senator.The effectiveness of the legislative plan, however, promptly was suspended by a referendum petition. See Laws 1973, p. 1549. By a companion initiative petition, an amendment to the State's Constitution was proposed; this would have created a commission to reapportion the State and, in addition, would have mandated single-member senatorial districts. A special election on these took place December 4, 1973. Both were defeated. The Legislative Assembly's work to reapportion was thus nullified by the people. It could be suggested, and apparently was, that the people also reacted against the elimination of the five multi-member districts. In any Page 420 U. S. 13 event, the defendant thereupon moved the federal court to readopt the plan temporarily approved by its order of June, 1972. The plaintiffs resisted.The three-judge District Court, with Circuit Judge Bright dissenting, then made "permanent" the 1972 Dobson plan, with its five multi-member districts providing 18 senators out of a state-wide total of 51. 372 F. Supp. 371, 379 (ND 1974). We noted probable jurisdiction. 416 U.S. 966 (1974).IVJurisdictionWe are met at the threshold with a mild question of jurisdiction not pressed by the parties. We have jurisdiction under 28 U.S.C. § 1253 [Footnote 6] only if a three-judge court was required by 28 U.S.C. § 2281. [Footnote 7]It might be suggested that the three-judge court here did not restrain the enforcement of a statute, but, instead, the enforcement of the court-ordered plan of 1965 which had become unconstitutional in the circumstances of 1972, and, hence, that the provisions of § 2281 were not satisfied. The argument is less than persuasive, and we Page 420 U. S. 14 conclude that it is without merit. Although the reapportionment now under attack was indeed court-ordered, its enforcement is doubly based on the State's Constitution and statutes. Its effectuation directly depends on the state election law machinery and, in addition, the plan itself is a court-imposed replacement of the North Dakota constitutional provisions and the 1931, 1963, and 1965 reapportionment statutes. It is these that are, and have been, the primary objects of attack. It would be highly anomalous if jurisdiction were not here, for then it would follow that a single judge could invalidate a reapportionment plan that had been evolved or approved, and was required so to be, by a three-judge court some time before. Subject matter of this kind is regular grist for the three-judge court, and that route typically has been employed under conditions similar to those present here. See, e.g., Skolnick v. State Electoral Board of Illinois, 336 F. Supp. 839 (ND Ill 1971). We think this is correct procedure, and we conclude that we have jurisdiction.VThe Multi-member DistrictsFrom the above review of the North Dakota constitutional and statutory provisions and of the litigation of the past 12 years, two significant facts emerge: the first is that some multi-membership on the house side of the Legislative Assembly traditionally has existed. This plainly qualifies as established state policy. [Footnote 8] The second is that, in contrast, multi-membership on the senate side, even as to the five districts, has never existed except as imposed (a) by the three-judge federal court by its 1965 Paulson decision; (b) by a majority of the three-judge Page 420 U. S. 15 court as a temporary expedient for the 1972 election only; (c) by the provisions of the 1973 act immediately nullified by referendum; and (d) by a different majority of the three-judge court as a "permanent" solution in the judgment under review. Thus, only once has the Legislative Assembly provided for multi-member senate representation, and that effort was promptly aborted. Every other such provision in North Dakota's history has been court-imposed. Multi-member senate representation, therefore, obviously does not qualify as established state policy.This Court has refrained from holding that multi-member districts in apportionment plans adopted by States for their legislatures are per se unconstitutional. White v. Regester, 412 U. S. 755, 412 U. S. 765 (1973), and cases cited therein. On the contrary, the Court has upheld numerous state-initiated apportionment schemes utilizing multi-member districts. See, e.g., Kilgarlin v. Hill, 386 U. S. 120 (1967); Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965). And, beginning with Reynolds v. Sims, 377 U.S. at 377 U.S. 577, the Court has indicated that a State might devise an apportionment plan for a bicameral legislature with one body composed of at least some multi-member districts, as long as substantial equality of population per representative is maintained.Notwithstanding this past acceptance of multi-member districting plans, we recognize that there are practical weaknesses inherent in such schemes. First, as the number of legislative seats within the district increases, the difficulty for the voter in making intelligent choices among candidates also increases. See Lucas v. Colorado General Assembly, 377 U.S. at 377 U. S. 731. Ballots tend to become unwieldy, confusing, and too lengthy to allow thoughtful consideration. Second, when candidates are Page 420 U. S. 16 elected at large, residents of particular areas within the district may feel that they have no representative specially responsible to them. Ibid. Third, [Footnote 9] it is possible that bloc voting by delegates from a multi-member district may result in undue representation of residents of these districts relative to voters in single member districts. This possibility, however, was rejected, absent concrete proof, in Whitcomb v. Chavis, 403 U. S. 124, 403 U. S. 147 (1971). Criticism of multi-member districts has been frequent and widespread. Id. at 403 U. S. 157-160, [Footnote 10] and articles cited therein. See generally Carpeneti, Legislative Apportionment: Multi-member Districts and Fair Representation, 120 U.Pa.L.Rev. 666 (1972); Banzhaf, Multi-member Electoral Districts -- Do They Violate the "One Man, One Vote" Principle, 75 Yale L.J. 1309 (1966). Page 420 U. S. 17In Fortson v. Dorsey, supra, we held that the mere assertion of such possible weaknesses in a legislature's multi-member districting plan was insufficient to establish a denial of equal protection. Rather, it must be shown that"designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population."379 U.S. at 379 U. S. 439. Further, there must be more evidence than a simple disproportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups. White v. Regester, 412 U.S. at 412 U. S. 765-766. Such evidence may be more easily developed where the multi-member districts compose a large part of the legislature, where both bodies in a bicameral legislature utilize multi-member districts, or where the members' residences are concentrated in one part of the district. Burns v. Richardson, 384 U.S. at 384 U. S. 88. [Footnote 11] Whether such factors are present or not, proof of lessening or cancellation of voting strength must be offered.This requirement that one challenging a multi-member districting plan must prove that the plan minimizes or cancels out the voting power of a racial or political group has been applied in cases involving apportionment schemes adopted by state legislatures. In Connor v. Johnson, 402 U. S. 690 (1971), however, which came to Page 420 U. S. 18 us on. an application for a stay, we were presented with a court-ordered reapportionment scheme having some multi-member districts in both bodies of the state legislature. We stated explicitly that,"when district courts are forced to fashion apportionment plans, single member districts are preferable to large multi-member districts as a general matter."Id. at 402 U. S. 692. Exercising our supervisory power, we directed the District Court to devise a single member districting plan, "absent insurmountable difficulties." Ibid. This preference for and emphasis upon single member districts in court-ordered plans was reaffirmed in Connor v. Wlliams, 404 U.S. at 404 U. S. 551, and again in Mahan v. Howell, 410 U. S. 315, 410 U. S. 333 (1973). In the latter case, a District Court was held to have acted within its discretion in forming a multi-member district as an interim remedy in order to alleviate substantial underrepresentation of military personnel in an impending election. [Footnote 12]The standards for evaluating the use of multi-member districts thus clearly differ depending on whether a federal court or a state legislature has initiated the use. The Page 420 U. S. 19 practical simultaneity of decision in Connor v. Johnson and in Whitcomb v. Chavis, supra, so demonstrates. When the plan is court-ordered, there often is no state policy of multi-member districting which might deserve respect or deference. Indeed, if the court is imposing multi-member districts upon a State which always has employed single member districts, there is special reason to follow the Connor rule favoring the latter type of districting.Appellants do not contend that any racial or political group [Footnote 13] has been discriminated against by the multi-member districting ordered by the District Court. They only suggest that the District Court has not followed our mandate in Connor v. Johnson, and that the court has failed to articulate any reasons for this departure. We agree. Absent particularly pressing features calling for multi-member districts, a United States district court should refrain from imposing them upon a State.The District Court cannot avoid the multi-member issue by labeling it, see 372 F. Supp. at 377, a political issue to be resolved by the State. The District Court itself created multi-member districting in North Dakota, and it might be said to be disingenuous to suggest that the judicial creation became a political question simply by the passage of nine years. The District Court's treatment of this issue directly conflicts with its prior opinion in this case, where it allowed continuation of the multi-member districts first established in the Paulson decision in 1965 only as an interim remedy. 372 F. Supp. at 367. The court there noted that, in the largest multi-member district, a voter would be asked to evaluate the qualifications of at least 30 candidates for the state Page 420 U. S. 20 legislature, a "most formidable" task. Id. at 366. Taking note of Connor v. Johnson, the court held in 1972 that it would be improper to permit multi-member districts to remain permanently, and allowed continued use only for the impending election because of the great confusion that otherwise would result. The court appears now to have abandoned that position, with no suggestion of reasons for the abrupt change. It is especially anomalous that the court would continue with the multi-member districting plan when the Special Master who initially proposed it has disavowed use of permanent multi-member districts. Dobson, Reapportionment Problems, 48 N.D.L.Rev. 281, 289 (1972).In contrast, the dissent in the District Court suggests a wide range of attributes of single member districts. 372 F. Supp. at 391. One advantage is obvious: confusion engendered by multiple offices will be removed. Other advantages perhaps are more speculative: single member districts may prevent domination of an entire slate by a narrow majority, may ease direct communication with one's senator, may reduce campaign costs, and may avoid bloc voting. Of course, these are general virtues of single member districts, and there is no guarantee that any particular feature will be found in a specific plan. Neither the District Court majority nor appellee, however, has provided us with any suggestion of a legitimate state interest supporting the abandonment of the general preference for single member districts in court-ordered plans which we recognized in Connor v. Johnson. [Footnote 14] The fact that no allegation of minority group discrimination is raised by appellants here does not make Connor inapplicable. Page 420 U. S. 21It is true that, in 1973, the voters of North Dakota voted down a proposed constitutional amendment which would have reestablished the State's tradition of single-member senatorial districts. At the same time, the voters also rejected by referendum the Legislative Assembly's 1973 Act which would have continued the multi-member format for five districts. We are unable to infer from these simultaneous actions of the electorate any particular attitude toward multi-member districts. It simply appears that North Dakota's voters have not been satisfied with any reapportionment proposal, and that they are frustrated by the years of confusion since the obviously impermissible apportionment provisions of the State's Constitution were invalidated.We are confident that the District Court, with perhaps the aid of its Special Masters, will be able to reinstitute the use of single member districts while also attaining the necessary goal of substantial population equality. Special Master Ostenson had indicated that it "would not be terribly difficult to adopt single member districts.'" See 372 F. Supp. at 392. [Footnote 15] Unless the District Court can articulate such a "singular combination of unique factors" as was found to exist in Mahan v. Howell, 410 U.S. at 410 U. S. 333, or unless the 1975 Legislative Assembly appropriately acts, the court should proceed expeditiously to reinstate single member senatorial districts in North Dakota.VIThe Population VarianceThe second aspect of the court-ordered reapportionment plan that is challenged by the appellants is the population divergence in the various senatorial districts. Since the population of the State under the 1970 census Page 420 U. S. 22 was 617,761, and the number of senators provided for by the court's plan was 51, each senatorial district would contain 12,112 persons if population equality were achieved. In fact, however, one district under the plan has 13,176 persons, and thus is underrepresented by 8.71%, while another district has 10,728 persons, and is overrepresented by 11.43%. The total variance between the largest and smallest districts consequently is 20.14%, and the ratio of the population of the largest to the smallest is 1.23 to 1.Reynolds v. Sims, supra, established that both houses of a state legislature must be apportioned so that districts are "as nearly of equal population as is practicable." 377 U.S. at 377 U.S. 577. While "[m]athematical exactness or precision" is not required, there must be substantial compliance with the goal of population equality. Ibid. Reynolds v. Sims, of course, involved gross population disparity among districts.Since Reynolds, we have had the opportunity to observe attempts in many state legislative reapportionment plans to achieve the goal of population equality. Although each case must be evaluated on its own facts, and a particular population deviation from the ideal may be permissible in some cases but not in others, Swann v. Adams, 385 U. S. 440, 385 U. S. 445 (1967), certain guidelines have been developed for determining compliance with the basic goal of one person, one vote. In Swann, we held that a variance of 25.65% in one house and 33.55% in the other was impermissible absent "a satisfactory explanation grounded on acceptable state policy." Id. at 385 U. S. 444. See also Kilgarlin v. Hill, 386 U.S. at 386 U. S. 123-124. In Swann, no justification of the divergences had been attempted. Possible justifications, each requiring adequate proof, were suggested by the Court. Among these were"such state policy considerations as the integrity Page 420 U. S. 23 of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines."385 U.S. at 385 U. S. 444. See also Reynolds v. Sims, 377 U.S. at 377 U.S. 578-581.On the other hand, we have acknowledged that some leeway in the equal population requirement should be afforded States in devising their legislative reapportionment plans. As contrasted with congressional districting, where population equality appears now to be the preeminent, if not the sole, criterion on which to adjudge constitutionality, Wesberry v. Sanders, 376 U. S. 1 (1964); Kirkpatrick v. Preisler, 394 U. S. 526 (1969); Wells v. Rockefeller, 394 U. S. 542 (1969); White v. Weiser, 412 U. S. 783 (1973), when state legislative districts are at issue we have held that minor population deviations do not establish a prima facie constitutional violation. For example, in Gaffney v. Cummings, 412 U. S. 735 (1973), we permitted a deviation of 7.83% with no showing of invidious discrimination. In White v. Regester, supra, a variation of 9.9% was likewise permitted.The treatment of the reapportionment plan in Mahan v. Howell, supra, is illustrative of our approach in this area. There, the Virginia Legislature had fashioned a plan providing a total population variance of 16.4% among house districts. This disparity was of sufficient magnitude to require an analysis of the state policies asserted in justification. We found that the deviations from the average were caused by the attempt of the legislature to fulfill the rational state policy of refraining from splitting political subdivisions between house districts, and we accepted the policy as legitimate notwithstanding the fact that subdivision splits were permitted in senatorial districts. Since the population divergences Page 420 U. S. 24 in the Virginia plan were "based on legitimate considerations incident to the effectuation of a rational state policy," Reynolds v. Sims, 377 U.S. at 377 U.S. 579, we held that the plan met constitutional standards.It is to be observed that this measure of acceptable deviation from population equality has been developed in cases that concerned apportionment plans enacted by state legislatures. In the present North Dakota case, however, the 20% variance is in the plan formulated by the federal court. We believe that a population deviation of that magnitude in a court-ordered plan is constitutionally impermissible in the absence of significant state policies or other acceptable considerations that require adoption of a plan with so great a variance. The burden is on the District Court to elucidate the reasons necessitating any departure from the goal of population equality, and to articulate clearly the relationship between the variance and the state policy furthered.The basis for the District Court's allowance of the 20 variance is claimed to lie in the absence of "electorally victimized minorities," in the fact that North Dakota is sparsely populated, in the division of the State caused by the Missouri River, and in the goal of observing geographical boundaries and existing political subdivisions. We find none of these factors persuasive here, and none of them has been explicitly shown to necessitate the substantial population deviation embraced by the plan.First, a variance of this degree cannot be justified simply because there is no particular racial or political group whose voting power is minimized or canceled. All citizens are affected when an apportionment plan provides disproportionate voting strength, and citizens in districts that are underrepresented lose something even if they do not belong to a specific minority group.Second, sparse population is not a legitimate basis for a departure from the goal of equality. A State with a Page 420 U. S. 25 sparse population may face problems different from those faced by one with a concentrated population, but that, without more, does not permit a substantial deviation from the average. Indeed, in a State with a small population, each individual vote may be more important to the result of an election than in a highly populated State. Thus, particular emphasis should be placed on establishing districts with as exact population equality as possible. The District Court's bare statement that North Dakota's sparse population permitted or perhaps caused the 20% deviation is inadequate justification. [Footnote 16]Third, the suggestion that the division of the State caused by the Missouri River and the asserted state policy of observing existing geographical and political subdivision boundaries warrant departure from population equality is also not persuasive. It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines. As the dissenting judge in this case noted, appellee's counsel acknowledged that reapportionment proposed by the Legislative Assembly broke county lines, 372 F. Supp. at 393 n. 22, and the District Court indicated as long as a decade ago that the legislature had abandoned the strict policy. Paulson v. Meier, 246 F. Supp. at 42-43. Furthermore, a plan devised by Special Master Ostenson demonstrates that neither the Missouri River nor the policy of maintaining township lines prevents attaining a significantly lower population variance. [Footnote 17] We do not imply that the Page 420 U. S. 26 Ostenson.plan should be adopted by the District Court, or that its 5.95% population variance necessarily would be permissible in a court-ordered plan. What we intend by our reference to the Ostenson plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible. [Footnote 18] The District Court has provided no rationale for its rejection of the Ostenson plan.Examination of the asserted justifications of the court-ordered plan thus plainly demonstrates that it fails to meet the standards established for evaluating variances in plans formulated by State legislatures or other state bodies. The plan, hence, would fail even under the criteria enunciated in Mahan v. Howell and Swann v. Adams. A court-ordered plan, however, must be held to higher standards than a State's own plan. With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features. We have felt it necessary in this case to clarify the greater responsibility of the District Court, when devising its own reapportionment plan, because of the severe problems occasioned for the citizens of North Dakota during the several years of redistricting confusion.VIIWe hold today that, unless there are persuasive justifications, a court-ordered reapportionment plan of a state Page 420 U. S. 27 legislature must avoid use of multi-member districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation. [Footnote 19] Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court's responsibility to articulate precisely why a plan of single member districts with minimal population variance cannot be adopted.We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court. Reynolds v. Sims, 377 U.S. at 377 U.S. 586; Maryland Committee v. Tawes, 377 U.S. at 377 U. S. 676. It is to be hoped that the 1975 North Dakota Legislative Assembly will perform that duty and enact a constitutionally acceptable plan. If it fails in that task, the responsibility falls on the District Court, and it should proceed with dispatch to resolve this seemingly interminable problem.The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtChapman v. Meier, 420 U.S. 1 (1975)Chapman v. MeierNo. 73-1406Argued November 13, 1974Decided January 27, 1975420 U.S. 1SyllabusThis case involves the issue of the constitutionality of a federal court-ordered reapportionment of the North Dakota Legislative Assembly. Following protracted state and federal litigation challenging various apportionment plans, statutes, and state constitutional provisions, including a federal action in which a three-judge District Court in 1965 approved a reapportionment plan that included five multi-member senatorial districts, appellants brought the present federal action against appellee, the Secretary of State, alleging that substantial population shifts had occurred and that the 1965 plan no longer met equal protection requirements, and requesting the court to order apportionment based on the 1970 census figures, to provide for single member districts, to declare the 1965 plan invalid, and to restrain appellee from administering the election laws under that plan. A three-judge District Court, holding that such plan failed to meet constitutional standards, approved another plan that called for five multi-member senatorial districts and that contained a 20% population variance between the largest and smallest senatorial districts.Held:1. This Court has jurisdiction of the appeal under 28 U.S.C. § 1253. Although the challenged reapportionment plan was court-ordered, Page 420 U. S. 2 its enforcement is based on the State's Constitution and statutes, its effectuation directly depends on the state election law machinery, and the plan itself is a court-imposed replacement of state constitutional provisions and reapportionment statutes. Pp. 420 U. S. 13-14.2. Absent persuasive justification, a federal district court, in ordering state legislative reapportionment, should refrain from imposing multi-member districts upon a State. Here, the District Court has failed to articulate a significant state interest supporting its departure from the general preference for single member districts in court-ordered reapportionment plans that this Court recognized in Connor v. Johnson, 402 U. S. 690, and unless the District Court can articulate such a "singular combination of unique factors" as was found to exist in Mahan v. Howell, 410 U. S. 315, 410 U. S. 333, or unless the 1975 Legislative Assembly appropriately acts, the court should proceed expeditiously to reinstate single member senatorial districts. Pp. 420 U. S. 121.3. A population deviation of such magnitude in a court-ordered reapportionment plan as the 20% variance involved here is constitutionally impermissible absent significant state policies or other acceptable considerations requiring its adoption. The burden is on the District Court to elucidate the reasons necessitating any departure from approximate population equality and to articulate clearly the relationship between the variance and the state policy furthered. Here, the District Court's allowance of the 20% variance is not justified, as the court claimed, by the absence of "electorally victimized minorities," by the sparseness of North Dakota's population, by the division of the State caused by the Missouri River, or by the asserted state policy of observing geographical boundaries and existing political subdivisions, especially when it appears that other, less statistically offensive, reapportionment plans already devised are feasible. Pp. 420 U. S. 21-26.372 F. Supp. 371, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 420 U. S. 3

1955_404

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This suit was brought by petitioner against respondent county and its treasurer for a declaratory judgment that petitioner was not required to pay certain state and county "personal property" taxes and for an injunction against the levy of such taxes on that property. The controlling facts are not in dispute. Petitioner is a Nebraska corporation organized primarily to provide housing for rent or sale. On January 18, 1951, petitioner entered into a contract with the Secretary of the Air Force to lease 63 acres of land and to build a housing project on Offutt Air Force Base in respondent county in accordance with specifications submitted to the Department of the Air Force and to be approved by the Federal Housing Commissioner.The lease was for 75 years at a rental price of $100 per year. It provided that the"buildings and improvements erected by the Lessee, constituting the aforesaid housing project, shall be and become, as completed, real estate and part of the leased land, and public buildings of the United States, leased to Lessee . . . ,"and further provided that,"upon the expiration of this lease, or earlier termination, all improvements made upon the leased premises shall remain the property of the Government without compensation. . . ."Petitioner was to lease all the units of the project to such military and civilian personnel at the Base as were designated by the Commanding Officer, Page 351 U. S. 255 on terms specified in the contract and at a maximum rent approved by the Federal Housing Administration and the Air Force. The Government was to provide fire and police protection to the project on a reimbursable basis. Petitioner had the right to permit public utilities to extend water, gas, sewer, telephone, and electric power lines onto the leased land in order to provide those services. Petitioner agreed to insure the buildings at its own expense, to permit Government inspection of the premises, and to comply with regulations prescribed by the Commanding Officer for military requirements for safety and security purposes consistent with the use of the leased land for housing. Petitioner could not assign the lease without the written approval of the Secretary of the Air Force.The preferred stock of petitioner was held by the Commissioner of the Federal Housing Administration which, acting under Title VIII of the National Housing Act (the Wherry Military Housing Act), 63 Stat. 570, insured a mortgage on the project after receiving a certificate from the Department of the Air Force that a housing project was necessary to provide adequate housing for civilian or military personnel. After the singing of the contract and the insurance of the mortgage, construction proceeded forthwith. Petitioner filed no county tax return, although the Attorney General of Nebraska had ruled that its interest in the project, including all of the "personal property" used therein, was taxable as "personal property." On June 23, 1952, the county assessor of Sarpy County filed a schedule on behalf of petitioner, listing a taxable total of $825,685, itemized as "Furniture & Fixtures -- Tools & Equipment"; "Household Appliances"; and "Improvements on Leased Land." Petitioner never paid the resulting county and state taxes, and, after the county treasurer threatened to issue the usual distress warrant to collect the taxes, petitioner brought this suit. Page 351 U. S. 256The District Court of Sarpy County held that, since title to the buildings and improvements was in the United States, Nebraska and Sarpy County could not tax them. The Supreme Court of Nebraska reversed, holding that Congress had given Nebraska the right to tax petitioner's interest in the property and that, for tax purposes, under Neb.Rev.Stat. Reissue 1950, § 77-1209, petitioner was, in fact and as a matter of law, the owner of the property sought to be taxed. 160 Neb. 320, 70 N.W.2d 382. Petitioner's attack on the Nebraska judgment raises serious questions of state-federal relations with respect to taxation of private housing developments on Government-owned land, and therefore we granted certiorari. 350 U.S. 893.This is another in a long series of cases in this Court dealing with the power of the States to tax property in private hands against a claim of exempt status deriving from an immunity of the Federal Government from state taxation. Offutt Air Force Base falls within the scope of Article I, § 8, cl. 17 of the United States Constitution, providing that the Congress shall have power"To exercise exclusive Legislation in all Cases whatsoever, over such District [of Columbia] . . . and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. . . ."The course of construction of this provision cannot be said to have run smooth. The power of "exclusive Legislation" has been held to prohibit a state tax on private property located on a military base acquired pursuant to art. I, § 8, cl. 17. Surplus Trading Co. v. Cook, 281 U. S. 647. On the other hand, the State may acquire the right to tax private interests within such a location Page 351 U. S. 257 by permission of Congress, see e.g., the Buck Act, 54 Stat. 1059, 4 U.S.C. §§ 104-110 (permitting state sales, use, and income taxes), and we have also held that the State may tax when the United States divests itself of proprietary interest over the area on which the tax is sought to be levied. S.R.A., Inc. v. Minnesota, 327 U. S. 558; see also Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U. S. 375.The line of least resistance in analysis of our immediate problem is to ascertain whether Congress has given consent to the type of state taxation here asserted. The applicable congressional statutes are the Military Leasing Act of 1947 and the Wherry Military Housing Act of 1949 (adding Title VIII to the National Housing Act). The Military Leasing Act provides:"That whenever the Secretary of War or the Secretary of the Navy shall deem it to be advantageous to the Government, he is authorized to lease such real or personal property under the control of his Department as is not surplus to the needs of the Department within the meaning of the Act of October 3, 1944 (58 Stat. 765), and is not for the time required for public use, to such lessee or lessees and upon such terms and conditions as in his judgment will promote the national defense or will be in the public interest. Each such lease shall be for a period not exceeding five years unless the Secretary of the Department concerned shall determine that a longer period will promote the national defense or will be in the public interest. . . . Each such lease shall contain a provision permitting the Secretary of the Department concerned to revoke the lease at any time, unless the Secretary shall determine that the omission of such provision from the lease will promote the national defense or will be in the public interest. In any event, each such lease shall be revocable by the Secretary Page 351 U. S. 258 of the Department concerned during a national emergency declared by the President. . . . The authority herein granted shall not apply to oil, mineral, or phosphate lands. . . .""* * * *" "SEC. 6. The lessee's interest, made or created pursuant to the provisions of this Act, shall be made subject to State or local taxation. Any lease of property authorized under the provisions of this Act shall contain a provision that, if and to the extent that such property is made taxable by State and local governments by Act of Congress, in such event the terms of such lease shall be renegotiated."61 Stat. 774-776. Two years later, the Wherry Act provided:"Whenever the Secretary of the Army, Navy, or Air Force determines that it is desirable to lease real property within the meaning of the Act of August 5, 1947 (61 Stat. 774), to effectuate the purposes of this title, the Secretary concerned is authorized to lease such property under the authority of said Act upon such terms and conditions as in his opinion will best serve the national interest without regard to the limitations imposed by said Act in respect to the term or duration of the lease, and the power vested in the Secretary of the Department concerned to revoke any lease made pursuant to said Act in the event of a national emergency declared by the President shall not apply. . . ."63 Stat. 570, 576.These two Acts interlock, and must be read together. The reasonable relationship between them has been thus delineated by the Court of Appeals for the Third Circuit:"In our view, this provision of the National Housing Act [the 1949 Act] merely permits leasing for Page 351 U. S. 259 military housing purposes, already covered by the general authorization of the 1947 Act, to be accomplished without regard to specified restrictions of the 1947 Act, when the elimination of these restrictions would serve the purposes of the Housing Act. Other provisions of the 1947 Act, including the language of Section 6 subjecting the lessee's interest to local taxation, apply to leases made under the authority of both Acts.""We have not overlooked the argument for a narrower view of the scope of the 1947 Act based upon legislative history indicating that the primary purpose of that Act was to provide for the leasing of standby defense plants. But the language of the Act extends the leasing authority to all non-surplus property under the control of the Defense Department except oil, mineral, or phosphate lands (an exception which would be unnecessary if the Act applied only to defense plants). An additional indication that the 1947 Act encompasses the leasing of property generally is found in Section 2, which repeals the prior authority for the leasing of War Department property generally, 27 Stat. 321. The Senate Report expresses the reporting committee's understanding that this prior leasing statute was being 'entirely superseded.' Sen.Rep.No. 626, 1947, 80th Cong.1st Sess. (p. 3)."Fort Dix Apartments Corp. v. Borough of Wrightstown, 225 F.2d 473, 475-476.We agree with this. To be sure, the 1947 Act does not refer specifically to property in an area subject to the power of "exclusive Legislation" by Congress. It does, however, govern the leasing of Government property generally, and its permission to tax extends generally to all lessees' interests created by virtue of the Act. The legislative Page 351 U. S. 260 history indicates a concern about loss of revenue to the States and a desire to prevent unfairness toward competitors of the private interests that might otherwise escape taxation. While the latter consideration is not necessarily applicable where military housing is involved, the former is equally relevant to leases for military housing as for any other purpose.We do not say that this is the only admissible construction of these Acts. We could regard art. I, § 8, cl. 17 as of such overriding and comprehensive scope that consent by Congress to state taxation of obviously valuable private interests located in an area subject to the power of "exclusive Legislation" is to be found only in explicit and unambiguous legislative enactment. We have not heretofore so regarded it, see S.R.A., Inc. v. Minnesota, 327 U. S. 558; Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U. S. 375, nor are we constrained by reason to treat this exercise by Congress of the "exclusive Legislation" power and the manner of construing it any differently from any other exercise by Congress of that power. This is one of those cases in which Congress has seen fit not to express itself unequivocally. It has preferred to use general language, and thereby requires the judiciary to apply this general language to a specific problem. To that end, we must resort to whatever aids to interpretation the legislation in its entirety and its history provide. Charged as we are with this function, we have concluded that the more persuasive construction of the statute, however flickering and feeble the light afforded for extracting its meaning, is that the States were to be permitted to tax private interests, like those of this petitioner, in housing projects located on areas subject to the federal power of "exclusive Legislation." We do not hold that Congress has relinquished this power over these areas. We hold only that Congress, in the exercise of this power, has permitted Page 351 U. S. 261 such state taxation as is involved in the present case.Petitioner also argues that the state tax, measured by the full value of the buildings and improvements, is not on the "lessee's interest," but is on the full value of property owned by the Government. Labeling the Government as the "owner" does not foreclose us from ascertaining the nature of the real interests created, and so does not solve the problem. See Millinery Center Building Corp. v. Commissioner, 350 U. S. 456. The lease is for 75 years; the buildings and improvements have an estimated useful life of 35 years. The enjoyment of the entire worth of the buildings and improvements will therefore be petitioner's.Petitioner argues, however, that the Government has a substantial interest in the buildings and improvements, since the Government prescribed the maximum rents and determined the occupants, had voting interests in petitioner, provided services, and took the financial risks by insuring the project. Petitioner compares its own position to that of a "managing agent." This characterization is an attempt by use of a phrase to make these facts fit an abstract legal category. This contention would certainly surprise a Congress which was interested in having private enterprise, and not the Government, conduct these housing projects. The Government may have "title," but only a paper title, and, while it retained the controls described in the lease as a regulatory mechanism to prevent the ordinary operation of unbridled economic forces, this does not mean that the value of the buildings and improvements should thereby be partially allocated to it. If an ordinary private housing venture were being assessed for tax purposes, the value would not be allocated between an owner and the mortgage company which does his financing, or between the owner and the State, which may fix rents and provide Page 351 U. S. 262 services. In the circumstances of this case, then, the full value of the buildings and improvements is attributable to the lessee's interest. [Footnote 1]Petitioner further argues that the tax on the appliances and furniture is invalid because petitioner owns those items, never bought them from the Government, and that therefore its interest was not "made or created pursuant to the provisions of this Act [the Military Leasing Act of 1947]." Here again, using a label, that of "owner," as descriptive of petitioner does not answer the question. It appears from the record that petitioner was required to supply the appliances for the housing project. Petitioner and its tenants will have full use of them for the lease period, and they or their replacements must be left on the property at the end of the lease. Petitioner's interest in the appliances, just like its interest in the buildings, is determined by its agreement with the Government, and, keeping in mind the purpose of § 6, we interpret that section as treating these items alike. [Footnote 2]For these reasons the judgment of the Supreme Court of Nebraska must beAffirmed

U.S. Supreme CourtOffutt Housing Co. v. County of Sarpy, 351 U.S. 253 (1956)Offutt Housing Co. v. County of SarpyNo. 404Argued April 26, 30, 1956Decided May 28, 1956351 U.S. 253SyllabusPetitioner entered into a contract with the Secretary of the Air Force, under which petitioner leased from the Government land on an Air Force base in Nebraska and built thereon housing accommodations to be rented by petitioner to military and civilian personnel of the base under strict governmental control. The lease was for a term of 75 years at nominal rental, and provided that the buildings and improvements erected by petitioner should become part of the real estate and that, upon expiration or termination of the lease, all improvements made upon the leased premises should remain the property of the Government without compensation. The estimated useful life of the buildings and improvements was only 35 years. The Nebraska county in which the base was located assessed against petitioner "personal property" taxes on the buildings, improvements, appliances, and furniture erected or provided by petitioner on the premises.Held:1. By the Military Leasing Act of 1947 and the Wherry Military Housing Act of 1949, Congress consented to state taxation of petitioner's interest as lessee, though the area involved is subject to the federal power of "exclusive Legislation." Pp. 351 U. S. 257-261.2. In the circumstances of this case, the full value of the buildings and improvements is attributable to the lessee's interest. Pp. 351 U. S. 261-262.3. Petitioner's interest in the appliances is subject to the state tax in like manner as its interest in the buildings. P. 351 U. S. 262.160 Neb. 320, 70 N.W.2d 382, affirmed. Page 351 U. S. 254

2002_01-1107

William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the brief were Jerry W Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Alison P. Landry, Assistant Attorney General.Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Barbara McDowell, Jessica Dunsay Silver, and Linda F. Thome.[347]Rodney A. Smolla argued the cause for respondents.With him on the brief were James O. Broccoletti, David P. Baugh, and Kevin E. Martingayle.[Footnote *]JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER join.In this case we consider whether the Commonwealth of Virginia's statute banning cross burning with "an intent to intimidate a person or group of persons" violates the First Amendment. Va. Code Ann. § 18.2-423 (1996). We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any[348]cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.IRespondents Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating Virginia's cross-burning statute, § 18.2-423. That statute provides:"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony."Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. Twenty-five to thirty people attended this gathering, which occurred on private property with the permission of the owner, who was in attendance. The property was located on an open field just off Brushy Fork Road (State Highway 690) in Cana, Virginia.When the sheriff of Carroll County learned that a Klan rally was occurring in his county, he went to observe it from the side of the road. During the approximately one hour that the sheriff was present, about 40 to 50 cars passed the site, a "few" of which stopped to ask the sheriff what was happening on the property. App. 71. Eight to ten houses were located in the vicinity of the rally. Rebecca Sechrist, who was related to the owner of the property where the rally took place, "sat and watched to see wha[t] [was] going on" from the lawn of her in-laws' house. She looked on as the Klan prepared for the gathering and subsequently conducted the rally itself. Id., at 103.During the rally, Sechrist heard Klan members speak about "what they were" and "what they believed in." Id.,[349]at 106. The speakers "talked real bad about the blacks and the Mexicans." Id., at 109. One speaker told the assembled gathering that "he would love to take a .30/.30 and just random[ly] shoot the blacks." Ibid. The speakers also talked about "President Clinton and Hillary Clinton," and about how their tax money "goes to . . . the black people." Ibid. Sechrist testified that this language made her "very . . . scared." Id., at 110.At the conclusion of the rally, the crowd circled around a 25- to 30-foot cross. The cross was between 300 and 350 yards away from the road. According to the sheriff, the cross "then all of a sudden . . . went up in a flame." Id., at 71. As the cross burned, the Klan played Amazing Grace over the loudspeakers. Sechrist stated that the cross burning made her feel "awful" and "terrible." Id., at 110.When the sheriff observed the cross burning, he informed his deputy that they needed to "find out who's responsible and explain to them that they cannot do this in the State of Virginia." Id., at 72. The sheriff then went down the driveway, entered the rally, and asked "who was responsible for burning the cross." Id., at 74. Black responded, "I guess I am because I'm the head of the rally." Ibid. The sheriff then told Black, "[T]here's a law in the State of Virginia that you cannot burn a cross and I'll have to place you under arrest for this." Ibid.Black was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of § 18.2-423. At his trial, the jury was instructed that "intent to intimidate means the motivation to intentionally put a person or a group of persons in fear of bodily harm. Such fear must arise from the willful conduct of the accused rather than from some mere temperamental timidity of the victim." Id., at 146. The trial court also instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent." Ibid. When Black objected to this last instruction on First Amendment grounds,[350]the prosecutor responded that the instruction was "taken straight out of the [Virginia] Model Instructions." Id., at 134. The jury found Black guilty, and fined him $2,500. The Court of Appeals of Virginia affirmed Black's conviction. Rec. No. 1581-99-3 (Va. App., Dec. 19, 2000), App. 201.On May 2, 1998, respondents Richard Elliott and Jonathan O'Mara, as well as a third individual, attempted to burn a cross on the yard of James Jubilee. Jubilee, an AfricanAmerican, was Elliott's next-door neighbor in Virginia Beach, Virginia. Four months prior to the incident, Jubilee and his family had moved from California to Virginia Beach. Before the cross burning, Jubilee spoke to Elliott's mother to inquire about shots being fired from behind the Elliott home. Elliott's mother explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing range.On the night of May 2, respondents drove a truck onto Jubilee's property, planted a cross, and set it on fire. Their apparent motive was to "get back" at Jubilee for complaining about the shooting in the backyard. Id., at 241. Respondents were not affiliated with the Klan. The next morning, as Jubilee was pulling his car out of the driveway, he noticed the partially burned cross approximately 20 feet from his house. After seeing the cross, Jubilee was "very nervous" because he "didn't know what would be the next phase," and because "a cross burned in your yard . . . tells you that it's just the first round." Id., at 231.Elliott and O'Mara were charged with attempted cross burning and conspiracy to commit cross burning. O'Mara pleaded guilty to both counts, reserving the right to challenge the constitutionality of the cross-burning statute. The judge sentenced O'Mara to 90 days in jail and fined him $2,500. The judge also suspended 45 days of the sentence and $1,000 of the fine.At Elliott's trial, the judge originally ruled that the jury would be instructed "that the burning of a cross by itself is[351]sufficient evidence from which you may infer the required intent." Id., at 221-222. At trial, however, the court instructed the jury that the Commonwealth must prove that "the defendant intended to commit cross burning," that "the defendant did a direct act toward the commission of the cross burning," and that "the defendant had the intent of intimidating any person or group of persons." Id., at 250. The court did not instruct the jury on the meaning of the word "intimidate," nor on the prima facie evidence provision of § 18.2-423. The jury found Elliott guilty of attempted cross burning and acquitted him of conspiracy to commit cross burning. It sentenced Elliott to 90 days in jail and a $2,500 fine. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. O'Mara v. Commonwealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000).Each respondent appealed to the Supreme Court of Virginia, arguing that § 18.2-423 is facially unconstitutional. The Supreme Court of Virginia consolidated all three cases, and held that the statute is unconstitutional on its face. 262 Va. 764, 553 S. E. 2d 738 (2001). It held that the Virginia cross-burning statute "is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377 (1992)]." Id., at 772, 553 S. E. 2d, at 742. The Virginia statute, the court held, discriminates on the basis of content since it "selectively chooses only cross burning because of its distinctive message." Id., at 774, 553 S. E. 2d, at 744. The court also held that the prima facie evidence provision renders the statute overbroad because "[t]he enhanced probability of prosecution under the statute chills the expression of protected speech." Id., at 777, 553 S. E. 2d, at 746.Three justices dissented, concluding that the Virginia cross-burning statute passes constitutional muster because it proscribes only conduct that constitutes a true threat. The justices noted that unlike the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377 (1992), the Virginia[352]statute does not just target cross burning "on the basis of race, color, creed, religion or gender." 262 Va., at 791, 553 S. E. 2d, at 753. Rather, "the Virginia statute applies to any individual who burns a cross for any reason provided the cross is burned with the intent to intimidate." Ibid. The dissenters also disagreed with the majority's analysis of the prima facie provision because the inference alone "is clearly insufficient to establish beyond a reasonable doubt that a defendant burned a cross with the intent to intimidate." Id., at 795, 553 S. E. 2d, at 756. The dissent noted that the burden of proof still remains on the Commonwealth to prove intent to intimidate. We granted certiorari. 535 U. S. 1094 (2002).[Footnote 1]IICross burning originated in the 14th century as a means for Scottish tribes to signal each other. See M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145 (1991). Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. See W. Scott, The Lady of The Lake, canto third. Cross burning in this country, however, long ago became unmoored from its Scottish ancestry. Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan.The first Ku Klux Klan began in Pulaski, Tennessee, in the spring of 1866. Although the Ku Klux Klan started as a social club, it soon changed into something far different. The Klan fought Reconstruction and the corresponding drive to allow freed blacks to participate in the political process.[353]Soon the Klan imposed "a veritable reign of terror" throughout the South. S. Kennedy, Southern Exposure 31 (1991) (hereinafter Kennedy). The Klan employed tactics such as whipping, threatening to burn people at the stake, and murder. W. Wade, The Fiery Cross: The Ku Klux Klan in America 48-49 (1987) (hereinafter Wade). The Klan's victims included blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites.The activities of the Ku Klux Klan prompted legislative action at the national level. In 1871, "President Grant sent a message to Congress indicating that the Klan's reign of terror in the Southern States had rendered life and property insecure." Jett v. Dallas Independent School Dist., 491 U. S. 701, 722 (1989) (internal quotation marks and alterations omitted). In response, Congress passed what is now known as the Ku Klux Klan Act. See "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes," 17 Stat. 13 (now codified at 42 U. S. C. §§ 1983,1985, and 1986). President Grant used these new powers to suppress the Klan in South Carolina, the effect of which severely curtailed the Klan in other States as well. By the end of Reconstruction in 1877, the first Klan no longer existed.The genesis of the second Klan began in 1905, with the publication of Thomas Dixon's The Clansmen: An Historical Romance of the Ku Klux Klan. Dixon's book was a sympathetic portrait of the first Klan, depicting the Klan as a group of heroes "saving" the South from blacks and the "horrors" of Reconstruction. Although the first Klan never actually practiced cross burning, Dixon's book depicted the Klan burning crosses to celebrate the execution of former slaves. Id., at 324-326; see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770-771 (1995) (THOMAS, J., concurring). Cross burning thereby became associated with the first Ku Klux Klan. When D. W. Griffith turned Dixon's book into the movie The Birth of a Nation in 1915,[354]the association between cross burning and the Klan became indelible. In addition to the cross burnings in the movie, a poster advertising the film displayed a hooded Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right hand holding a burning cross above his head. Wade 127. Soon thereafter, in November 1915, the second Klan began.From the inception of the second Klan, cross burnings have been used to communicate both threats of violence and messages of shared ideology. The first initiation ceremony occurred on Stone Mountain near Atlanta, Georgia. While a 40-foot cross burned on the mountain, the Klan members took their oaths of loyalty. See Kennedy 163. This cross burning was the second recorded instance in the United States. The first known cross burning in the country had occurred a little over one month before the Klan initiation, when a Georgia mob celebrated the lynching of Leo Frank by burning a "gigantic cross" on Stone Mountain that was "visible throughout" Atlanta. Wade 144 (internal quotation marks omitted).The new Klan's ideology did not differ much from that of the first Klan. As one Klan publication emphasized, "We avow the distinction between [the] races, . . . and we shall ever be true to the faithful maintenance of White Supremacy and will strenuously oppose any compromise thereof in any and all things." Id., at 147-148 (internal quotation marks omitted). Violence was also an elemental part of this new Klan. By September 1921, the New York World newspaper documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27 tar-and-featherings. Wade 160.Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence. For example, in 1939 and 1940, the Klan burned crosses in front of synagogues and churches. See Kennedy 175. After one cross burning at a synagogue, a Klan member noted that if the cross burning did not "shut the Jews up, we'll cut a few[355]throats and see what happens." Ibid. (internal quotation marks omitted). In Miami in 1941, the Klan burned four crosses in front of a proposed housing project, declaring, "We are here to keep niggers out of your town . . . . When the law fails you, call on us." Id., at 176 (internal quotation marks omitted). And in Alabama in 1942, in "a whirlwind climax to weeks of flogging and terror," the Klan burned crosses in front of a union hall and in front of a union leader's home on the eve of a labor election. Id., at 180. These cross burnings embodied threats to people whom the Klan deemed antithetical to its goals. And these threats had special force given the long history of Klan violence.The Klan continued to use cross burnings to intimidate after World War II. In one incident, an African-American "school teacher who recently moved his family into a block formerly occupied only by whites asked the protection of city police . . . after the burning of a cross in his front yard." Richmond News Leader, Jan. 21, 1949, p. 19, App. 312. And after a cross burning in Suffolk, Virginia, during the late 1940's, the Virginia Governor stated that he would "not allow any of our people of any race to be subjected to terrorism or intimidation in any form by the Klan or any other organization." D. Chalmers, Hooded Americanism: The History of the Ku Klux Klan 333 (1980) (hereinafter Chalmers). These incidents of cross burning, among others, helped prompt Virginia to enact its first version of the cross-burning statute in 1950.The decision of this Court in Brown v. Board of Education, 347 U. S. 483 (1954), along with the civil rights movement of the 1950's and 1960's, sparked another outbreak of Klan violence. These acts of violence included bombings, beatings, shootings, stabbings, and mutilations. See, e.g., Chalmers 349-350; Wade 302-303. Members of the Klan burned crosses on the lawns of those associated with the civil rights movement, assaulted the Freedom Riders, bombed churches, and murdered blacks as well as whites[356]whom the Klan viewed as sympathetic toward the civil rights movement.Throughout the history of the Klan, cross burnings have also remained potent symbols of shared group identity and ideology. The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings. According to the Klan constitution (called the kloran), the "fiery cross" was the "emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused." The Ku Klux Klan Hearings before the House Committee on Rules, 67th Cong., 1st Sess., 114, Exh. G (1921); see also Wade 419. And the Klan has often published its newsletters and magazines under the name The Fiery Cross. See id., at 226, 489.At Klan gatherings across the country, cross burning became the climax of the rally or the initiation. Posters advertising an upcoming Klan rally often featured a Klan member holding a cross. See N. MacLean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan 142-143 (1994). Typically, a cross burning would start with a prayer by the "Klavern" minister, followed by the singing of Onward Christian Soldiers. The Klan would then light the cross on fire, as the members raised their left arm toward the burning cross and sang The Old Rugged Cross. Wade 185. Throughout the Klan's history, the Klan continued to use the burning cross in their ritual ceremonies.For its own members, the cross was a sign of celebration and ceremony. During a joint Nazi-Klan rally in 1940, the proceeding concluded with the wedding of two Klan members who "were married in full Klan regalia beneath a blazing cross." Id., at 271. In response to antimasking bills introduced in state legislatures after World War II, the Klan burned crosses in protest. See Chalmers 340. On March 26, 1960, the Klan engaged in rallies and cross burnings throughout the South in an attempt to recruit 10 million members. See Wade 305. Later in 1960, the Klan became[357]an issue in the third debate between Richard Nixon and John Kennedy, with both candidates renouncing the Klan. After this debate, the Klan reiterated its support for Nixon by burning crosses. See id., at 309. And cross burnings featured prominently in Klan rallies when the Klan attempted to move toward more nonviolent tactics to stop integration. See id., at 323; cf. Chalmers 368-369, 371-372, 380, 384. In short, a burning cross has remained a symbol of Klan ideology and of Klan unity.To this day, regardless of whether the message is a political one or whether the message is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S., at 771 (THOMAS, J., concurring). And while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. For example, when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. The person who burns a cross directed at a particular person often is making a serious threat, meant to coerce the victim to comply with the Klan's wishes unless the victim is willing to risk the wrath of the Klan. Indeed, as the cases of respondents Elliott and O'Mara indicate, individuals without Klan affiliation who wish to threaten or menace another person sometimes use cross burning because of this association between a burning cross and violence.In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.[358]III AThe First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law . . . abridging the freedom of speech." The hallmark of the protection of free speech is to allow "free trade in ideas"-even ideas that the overwhelming majority of people might find distasteful or discomforting. Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting); see also Texas v. Johnson, 491 U. S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Thus, the First Amendment "ordinarily" denies a State "the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence." Whitney v. California, 274 U. S. 357, 374 (1927) (Brandeis, J., concurring). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See, e.g., R. A. V. v. City of St. Paul, 505 U. S., at 382; Texas v. Johnson, supra, at 405-406; United States v. O'Brien, 391 U. S. 367, 376-377 (1968); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505 (1969).The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem"). The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are 'of such slight social value[359]as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" R. A. V. v. City of St. Paul, supra, at 382-383 (quoting Chaplinsky v. New Hampshire, supra, at 572).Thus, for example, a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572; see also R. A. V. v. City of St. Paul, supra, at 383 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words-"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" -are generally proscribable under the First Amendment. Cohen v. California, 403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire, supra, at 572. Furthermore, "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." Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). And the First Amendment also permits a State to ban a "true threat." Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted); accord, R. A. V. v. City of St. Paul, supra, at 388 ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc., 512 U. S. 753, 774 (1994); Schenck v. Pro-Choice Network of Western N.Y., 519 U. S. 357, 373 (1997)."True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 ("political hyberbole" is not a true threat); R. A. V. v. City of St. Paul, 505 U. S., at 388. The[360]speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur." Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra, the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.BThe Supreme Court of Virginia ruled that in light of R. A. V. v. City of St. Paul, supra, even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint. 262 Va., at 771-776, 553 S. E. 2d, at 742-745. It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.[Footnote 2][361]The fact that cross burning is symbolic expression, however, does not resolve the constitutional question. The Supreme Court of Virginia relied upon R. A. V. v. City of St. Paul, supra, to conclude that once a statute discriminates on the basis of this type of content, the law is unconstitutional. We disagree.In R. A. V., we held that a local ordinance that banned certain symbolic conduct, including cross burning, when done with the knowledge that such conduct would "'arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender'" was unconstitutional. Id., at 380 (quoting the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990)). We held that the ordinance did not pass constitutional muster because it discriminated on the basis of content by targeting only those individuals who "provoke violence" on a basis specified in the law. 505 U. S., at 391. The ordinance did not cover "[t]hose who wish to use 'fighting words' in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality." Ibid. This content-based discrimination was unconstitutional because it allowed the city "to impose special prohibitions on those speakers who express views on disfavored subjects." Ibid.We did not hold in R. A. V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, we specifically stated that some types of content discrimination did not violate the First Amendment:"When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or[362]viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class." Id., at 388.Indeed, we noted that it would be constitutional to ban only a particular type of threat: "[T]he Federal Government can criminalize only those threats of violence that are directed against the President . . . since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President." Ibid. And a State may "choose to prohibit only that obscenity which is the most patently offensive in its prurience--i. e., that which involves the most lascivious displays of sexual activity." Ibid. (emphasis in original). Consequently, while the holding of R. A. V. does not permit a State to ban only obscenity based on "offensive political messages," ibid., or "only those threats against the President that mention his policy on aid to inner cities," ibid., the First Amendment permits content discrimination "based on the very reasons why the particular class of speech at issue . . . is proscribable," id., at 393.Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." Id., at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Ibid. Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. See, e. g., supra, at 355 (noting the instances of cross burnings directed at union members); State v. Miller, 6 Kan. App. 2d 432,629 P. 2d 748 (1981) (describing[363]the case of a defendant who burned a cross in the yard of the lawyer who had previously represented him and who was currently prosecuting him). Indeed, in the case of Elliott and O'Mara, it is at least unclear whether the respondents burned a cross due to racial animus. See 262 Va., at 791, 553 S. E. 2d, at 753 (Hassell, J., dissenting) (noting that "these defendants burned a cross because they were angry that their neighbor had complained about the presence of a firearm shooting range in the Elliott's yard, not because of any racial animus").The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment.IVThe Supreme Court of Virginia ruled in the alternative that Virginia's cross-burning statute was unconstitutionally overbroad due to its provision stating that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. § 18.2-423 (1996). The Commonwealth added the prima facie provision to the statute in 1968. The court below did not reach whether this provision is severable from the rest of the cross-burning statute under Virginia law. See § 1-17.1 ("The provisions of all statutes are severable unless . . . it is[364]Opinion of O'CONNOR, J.apparent that two or more statutes or provisions must operate in accord with one another"). In this Court, as in the Supreme Court of Virginia, respondents do not argue that the prima facie evidence provision is unconstitutional as applied to anyone of them. Rather, they contend that the provision is unconstitutional on its face.The Supreme Court of Virginia has not ruled on the meaning of the prima facie evidence provision. It has, however, stated that "the act of burning a cross alone, with no evidence of intent to intimidate, will nonetheless suffice for arrest and prosecution and will insulate the Commonwealth from a motion to strike the evidence at the end of its case-inchief." 262 Va., at 778, 553 S. E. 2d, at 746. The jury in the case of Richard Elliott did not receive any instruction on the prima facie evidence provision, and the provision was not an issue in the case of Jonathan O'Mara because he pleaded guilty. The court in Barry Black's case, however, instructed the jury that the provision means: "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196. This jury instruction is the same as the Model Jury Instruction in the Commonwealth of Virginia. See Virginia Model Jury Instructions, Criminal, Instruction No. 10.250 (1998 and Supp. 2001).The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Because this jury instruction is the Model Jury Instruction, and because the Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury instruction's construction of the prima facie provision "is a ruling on a question of state law that is as binding on us as though the precise words had been written into" the statute. E. g., Terminiello v. Chicago, 337 U. S. 1, 4 (1949) (striking down an ambiguous statute on facial grounds based upon the instruction given to the jury); see also New York v. Ferber, 458 U. S. 747, 768, n. 21 (1982) (noting that Terminiello involved a facial challenge to the statute); Secretary of State[365]of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13 (1984); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 845-846, n. 8 (1970); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 10-12; Blakey & Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 883, n. 133. As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.It is apparent that the provision as so interpreted "'would create an unacceptable risk of the suppression of ideas.''' Secretary of State of Md. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute-and potentially convict-somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group[366]Opinion of O'CONNOR, J.solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, "[b]urning a cross at a political rally would almost certainly be protected expression." R. A. V. v. St. Paul, 505 U. S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U. S., at 445). Cf. National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott's The Lady of the Lake.The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim. It does not distinguish between a cross burning at a public rally or a cross burning on a neighbor's lawn. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. It allows a jury to treat a cross burning on the property of another with the owner's acquiescence in the same manner as a cross burning on the property of another without the owner's permission. To this extent I agree with JUSTICE SOUTER that the prima facie evidence provision can "skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning." Post, at 385 (opinion concurring in judgment in part and dissenting in part).It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, "The lesson I have drawn[367]from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law." Casper, Gerry, 55 Stan. L. Rev. 647, 649 (2002) (internal quotation marks omitted). The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut.For these reasons, the prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face. We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision. Unlike JUSTICE SCALIA, we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment. Rather, all we hold is that because of the interpretation of the prima facie evidence provision given by the jury instruction, the provision makes the statute facially invalid at this point. We also recognize the theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility. We also leave open the possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under § 18.2-423.VWith respect to Barry Black, we agree with the Supreme Court of Virginia that his conviction cannot stand, and we affirm the judgment of the Supreme Court of Virginia. With respect to Elliott and O'Mara, we vacate the judgment[368]Opinion of SCALIA, J.of the Supreme Court of Virginia, and remand the case for further proceedings.It is so ordered

OCTOBER TERM, 2002SyllabusVIRGINIA v. BLACK ET AL.CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 01-1107. Argued December 11, 2002-Decided April 7, 2003Respondents were convicted separately of violating a Virginia statute that makes it a felony "for any person . . ., with the intent of intimidating any person or group . . . , to burn a cross on the property of another, a highway or other public place," and specifies that "[a]ny such burning . . . shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. At respondent Elliott's trial, the judge instructed the jury as to what the Commonwealth had to prove, but did not give an instruction on the meaning of the word "intimidate," nor on the statute's prima facie evidence provision. Consolidating all three cases, the Virginia Supreme Court held that the crossburning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech.Held: The judgment is affirmed in part, vacated in part, and remanded. 262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and remanded.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and III, concluding that a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate. Pp. 352-363.(a) Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The Klan has often used cross burnings as a tool of intimidation and a threat of impending vio-[344]lence, although such burnings have also remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings. To this day, however, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 771. While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. Pp. 352-357.(b) The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. For example, the First Amendment permits a State to ban "true threats," e. g., Watts v. United States, 394 U. S. 705, 708 (per curiam), which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, see, e. g., ibid. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V., supra, at 388. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. pp. 358-360.(c) The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with this Court's holding in R. A. V. Contrary to the Virginia Supreme Court's ruling, R. A. V. did not hold that the First Amendment prohibits all forms of contentbased discrimination within a proscribable area of speech. Rather, the Court specifically stated that a particular type of content discrimination does not violate the First Amendment when the basis for it consists[345]entirely of the very reason its entire class of speech is proscribable. 505 U. S., at 388. For example, it is permissible to prohibit only that obscenity that is most patently offensive in its prurience-i. e., that which involves the most lascivious displays of sexual activity. Ibid. Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." Id., at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Ibid. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. Pp. 360-363.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER, concluded in Parts IV and V that the Virginia statute's prima facie evidence provision, as interpreted through the jury instruction given in respondent Black's case and as applied therein, is unconstitutional on its face. Because the instruction is the same as the Commonwealth's Model Jury Instruction, and because the Virginia Supreme Court had the opportunity to expressly disavow it, the instruction's construction of the prima facie provision is as binding on this Court as if its precise words had been written into the statute. E. g., Terminiello v. Chicago, 337 U. S. 1, 4. As construed by the instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The provision permits a jury to convict in every cross burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. It permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. As so interpreted, it would create an unacceptable risk of the suppression of ideas. E.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13. The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech. The prima facie evidence provision blurs the line between these meanings, ignoring all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut. Thus, Black's conviction cannot stand, and the judgment as[346]to him is affirmed. Conversely, Elliott's jury did not receive any instruction on the prima facie provision, and the provision was not an issue in O'Mara's case because he pleaded guilty. The possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under the statute, is left open. Also left open is the theoretical possibility that, on remand, the Virginia Supreme Court could interpret the prima facie provision in a manner that would avoid the constitutional objections described above. Pp. 363-368.JUSTICE SCALIA agreed that this Court should vacate and remand the judgment of the Virginia Supreme Court with respect to respondents Elliott and O'Mara so that that court can have an opportunity authoritatively to construe the cross-burning statute's prima-facie-evidence provision. Pp. 368, 379.JUSTICE SOUTER, joined by JUSTICE KENNEDY and JUSTICE GINSBURG, concluded that the Virginia statute is unconstitutional and cannot be saved by any exception under R. A. V. v. St. Paul, 505 U. S. 377, and therefore concurred in the Court's judgment insofar as it affirms the invalidation of respondent Black's conviction. Pp. 380-381, 387.O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which REHNQUIST, C. J., and STEVENS, SCALIA, and BREYER, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C. J., and STEVENS and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 368. SCALIA, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which THOMAS, J., joined as to Parts I and II, post, p. 368. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KENNEDY and GINSBURG, JJ., joined, post, p. 380. THOMAS, J., filed a dissenting opinion, post, p. 388.

1983_82-1047

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether a gun owner's acquittal on criminal charges involving firearms precludes a subsequent in rem forfeiture proceeding against those same firearms.AOn January 20, 1977, the Bureau of Alcohol, Tobacco, and Firearms seized a cache of firearms from the home of Patrick Mulcahey. Mulcahey was subsequently indicted on charges that he had knowingly engaged in the business of dealing in firearms without a license, in violation of 18 U.S.C. Page 465 U. S. 356 § 922(a)(1). [Footnote 1] At his criminal trial, Mulcahey admitted that he had no license to deal in firearms and that he had bought and sold firearms during the period set forth in the indictment. His defense was that he had been entrapped into making the illegal firearms transactions. The jury returned a verdict of not guilty.Following Mulcahey's acquittal of the criminal charges, the United States, pursuant to its authority under 18 U.S.C. § 924(d), [Footnote 2] instituted this in rem action for forfeiture of the seized firearms. [Footnote 3] On the basis of his earlier acquittal, Mulcahey asserted the defenses of res judicata and collateral estoppel. The United States District Court for the District of South Carolina struck Mulcahey's defenses, reasoning that an in rem forfeiture proceeding under 18 U.S.C. § 924(d) is remedial in nature, and is therefore properly characterized as Page 465 U. S. 357 a civil proceeding. 463 F. Supp. 365, 367 (1978). The District Court then concluded that"the firearms here in question were involved in, used or intended to be used in violation of 18 U.S.C. § 922(a)(1). Such firearms are rendered subject to forfeiture under 18 U.S.C. § 924(d), which forfeiture is hereby ordered."511 F. Supp. 133, 139 (1980).BA divided United States Court of Appeals for the Fourth Circuit, sitting en banc, reversed. [Footnote 4] 685 F.2d 913 (1982). The en banc majority relied upon two theories for its conclusion that the forfeiture proceeding against these firearms was barred by Mulcahey's prior acquittal, although it did not sharply distinguish between the two. Because the majority considered the § 924(d) forfeiture proceeding to be criminal and punitive in nature, the Court of Appeals concluded that it was barred by double jeopardy principles. Looking to Coffey v. United States, 116 U. S. 436 (1886), as authority, the Court of Appeals also determined that the forfeiture action was barred by collateral estoppel, because it was based upon the same facts as the earlier criminal action. In dissent, four judges argued that neither collateral estoppel nor double jeopardy should preclude forfeiture proceedings brought under § 924(d). 685 F.2d at 918-919 (Winter, J., joined by Butzner, Russell, and Murnaghan, JJ., dissenting). We granted certiorari, 459 U.S. 1199 (1983), and we reverse.IIn Coffey v. United States, supra, this Court held that a forfeiture action brought against certain distilling equipment was barred by the owner's prior acquittal on charges of removing and concealing distilled spirits with the intent to defraud the revenue. The Court stated: Page 465 U. S. 358"[W]here an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt, and that, on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States in the suit in rem. Nevertheless, the fact or act has been put in issue and determined against the United States, and all that is imposed by the statute, as a consequence of guilt, is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it, and a subsequent trial of the civil suit amounts to substantially the same thing, with a difference only in the consequences following a judgment adverse to the claimant."Id. at 116 U. S. 443. Although the language quoted above incorporates notions of both collateral estoppel and double jeopardy, the Coffey Court did not identify the precise legal foundation for the rule of preclusion it announced. Perhaps for this reason, later decisions of this Court have reflected uncertainty as to the exact scope of the Coffey holding.In Helvering v. Mitchell, 303 U. S. 391 (1938), the Court considered the preclusive effect of a prior criminal acquittal on a subsequent action for a monetary penalty. The defendant taxpayer in Mitchell was acquitted of charges that he willfully attempted to evade and defeat the income tax by Page 465 U. S. 359 fraudulently misstating certain items on his income tax return. When the Commissioner of Internal Revenue then brought an action to recover a substantial monetary penalty for fraudulent avoidance of income tax, the taxpayer argued that the subsequent penalty action was barred by res judicata, collateral estoppel, and the Coffey rule of preclusion.This Court, speaking through Justice Brandeis, disagreed. Although the taxpayer argued and the Government conceded that the factual matters at issue in the penalty proceeding had been litigated and determined in the prior criminal action, the Court concluded that "[t]he difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata." 303 U.S. at 303 U. S. 397. The Mitchell Court viewed the criminal acquittal as nothing more than a determination that the evidence in the criminal setting was not sufficient to overcome all reasonable doubt that the accused was guilty. See Lewis v. Frick, 233 U. S. 291, 233 U. S. 302 (1914). The Court went on to state:"That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based, has long been settled. Stone v. United States, 167 U. S. 178, 167 U. S. 188; Murphy v. United States, 272 U. S. 630, 272 U. S. 631, 632. Compare Chantangco v. Abaroa, 218 U. S. 476, 218 U. S. 481, 218 U. S. 482."303 U.S. at 303 U. S. 397-398 (footnote omitted).Turning to the taxpayer's argument that double jeopardy barred the assessment of a monetary penalty following his acquittal on related criminal charges, the Court noted:"Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense. The question for decision is thus whether Page 465 U. S. 360 [the monetary penalty] imposes a criminal sanction. That question is one of statutory interpretation."Id. at 303 U. S. 399. In concluding that the monetary penalty was merely a remedial civil sanction authorized by Congress to be assessed at the discretion of those administering the tax law, the Court observed that forfeiture of goods or their value and the payment of fixed or variable sums of money are sanctions that have long been recognized as enforceable by civil proceedings. Id. at 303 U. S. 400.Finally, the Mitchell Court considered the effect of the holding in Coffey upon the facts before it. The Court distinguished Coffey on the ground that the Coffey rule did not apply where an acquittal on a criminal charge was followed by a civil action requiring a different degree of proof. The Mitchell Court concluded that the monetary penalty imposed by the revenue laws was a civil administrative sanction; it therefore found Coffey no obstacle to the recovery of the penalty from the taxpayer. 303 U.S. at 303 U. S. 405-406.Most recently, in One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972) (per curiam), the Court held that a civil action for forfeiture of a ring and stones was not barred by the owner's prior acquittal on charges of willfully and knowingly, with intent to defraud the United States, smuggling articles into the United States without complying with customs procedures. Reaffirming the principles articulated in Helvering v. Mitchell, supra, the Court reasoned that the difference between the burdens of proof in the criminal and civil cases precluded the application of the doctrine of collateral estoppel. Double jeopardy was equally inapposite, the Court continued, because the forfeiture asserted against the ring and stones was a civil, not a criminal, sanction. The Court distinguished Coffey on the ground that acquittal on the criminal charges in One Lot Emerald Cut Stones did not necessarily resolve the issues in the later forfeiture action. 409 U.S. at 409 U. S. 235, n. 5. Page 465 U. S. 361In focusing on Coffey v. United States, the Court of Appeals appears to have overlooked the significance of Mitchell and One Lot Emerald Cut Stones. At the very least, Mitchell signaled that an acquittal of a criminal charge does not automatically bar an action to enforce sanctions by way of forfeiture of goods or other civil penalties. Whatever the validity of Coffey on its facts, its ambiguous reasoning seems to have been a source of confusion for some time. As long ago as Mitchell, this Court was urged to disapprove Coffey so as to make clear that an acquittal in a criminal trial does not bar a civil action for forfeiture even though based on the identical facts. Indeed, for nearly a century, the analytical underpinnings of Coffey have been recognized as less than adequate. [Footnote 5] The time has come to clarify that neither collateral estoppel nor double jeopardy bars a civil, remedial forfeiture proceeding initiated following an acquittal on related criminal charges. To the extent that Coffey v. United States suggests otherwise, it is hereby disapproved.IIIAThe disposition of the instant case follows readily from the principles articulated in Mitchell and One Lot Emerald Cut Stones. Mulcahey first argues that, because of his earlier criminal acquittal, the doctrine of collateral estoppel operates to preclude the § 924(d) forfeiture action. But an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt. We need not be concerned whether the jury decided to acquit Mulcahey because he was entrapped into making an illegal sale or whether the jurors were not convinced of Page 465 U. S. 362 his guilt beyond a reasonable doubt for other reasons. In either case, the jury verdict in the criminal action did not negate the possibility that a preponderance of the evidence could show that Mulcahey was engaged in an unlicensed firearms business. Mulcahey's acquittal on charges brought under § 922(a)(1) therefore does not estop the Government from proving in a civil proceeding that the firearms should be forfeited pursuant to § 924(d). It is clear that the difference in the relative burdens of proof in the criminal and civil actions precludes the application of the doctrine of collateral estoppel. Helvering v. Mitchell, 303 U.S. at 397; One Lot Emerald Cut Stones v. United States, supra, at 202 U. S. 235.BMulcahey next contends that a forfeiture proceeding under § 924(d) is barred by the Double Jeopardy Clause of the Fifth Amendment. Unless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. Helvering v. Mitchell, 303 U.S. at 303 U. S. 398-399. The question, then, is whether a § 924(d) forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial. Resolution of this question begins as a matter of statutory interpretation. Id. at 303 U. S. 399. As the Court noted in United States v. Ward, 448 U. S. 242, 448 U. S. 248 (1980):"Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut Stones v. United States, supra, at 409 U. S. 236-237. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or Page 465 U. S. 363 effect as to negate that intention. See Flemming v. Nestor, 363 U. S. 603, 363 U. S. 617-621 (1960)."Applying the first prong of the Ward test to the facts of the instant case, we conclude that Congress designed forfeiture under § 924(d) as a remedial civil sanction. Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute. Section 924(d) does not prescribe the steps to be followed in effectuating a forfeiture, but rather incorporates by reference the procedures of the Internal Revenue Code of 1954 (Code), 26 U.S.C. §§ 7321-7328. The Code, in turn, provides that an action to enforce a forfeiture "shall be in the nature of a proceeding in rem in the United States District Court for the district where such seizure is made." 26 U.S.C. § 7323. In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 416 U. S. 684 (1974). In addition to establishing the in rem nature of the action, the Code authorizes a summary administrative proceeding for forfeiture of items valued at $2,500 or less, for which notice of a seizure may be by publication. See 26 U.S.C. § 7325. By creating such distinctly civil procedures for forfeitures under § 924(d), Congress has "indicate[d] clearly that it intended a civil, not a criminal, sanction." Helvering v. Mitchell, supra, at 303 U. S. 402.Moreover, § 924(d) is somewhat broader in scope than the criminal provisions of 18 U.S.C. § 922. Section 924(d) subjects to forfeiture "[a]ny firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter." (Emphasis added.) But § 922(a)(1), the substantive criminal provision under which Mulcahey was prosecuted, does not render unlawful an intention to engage in the business of dealing in firearms without a license; only the completed act of engaging in the prohibited business is Page 465 U. S. 364 made a crime. See n 1, supra. Whatever the actual scope of the conduct embraced by § 924(d), it is apparent from the differences in the language of these two statutes that the forfeiture provisions of § 924(d) were meant to be broader in scope than the criminal sanctions of § 922(a)(1).Finally, the forfeiture provision of § 924(d) furthers broad remedial aims. Section 924(d) was enacted as part of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 233, and later retained without alteration in the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1224. In enacting the 1968 gun control legislation, Congress "was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest." Huddleston v. United States, 415 U. S. 814, 415 U. S. 824 (1974). Accordingly, Congress sought to "control the indiscriminate flow" of firearms and to "assist and encourage States and local communities to adopt and enforce stricter gun control laws." H.R.Rep. No. 1577, 90th Cong., 2d Sess., 8 (1968). Section 924(d) plays an important role in furthering the prophylactic purposes of the 1968 gun control legislation by discouraging unregulated commerce in firearms and by removing from circulation firearms that have been used or intended for use outside regulated channels of commerce. Keeping potentially dangerous weapons out of the hands of unlicensed dealers is a goal plainly more remedial than punitive. Accordingly, we hold that Congress viewed § 924(d) forfeiture as a remedial civil sanction, rather than a criminal punishment. [Footnote 6] Page 465 U. S. 365We now turn to the second aspect of our inquiry: "whether the statutory scheme [is] so punitive either in purpose or effect as to negate" Congress' intention to establish a civil remedial mechanism. United States v. Ward, 448 U.S. at 448 U. S. 248-249. "Only the clearest proof'" that the purpose and effect of the forfeiture are punitive will suffice to override Congress' manifest preference for a civil sanction. Id. at 448 U. S. 249 (quoting Flemming v. Nestor, 363 U. S. 603, 363 U. S. 617 (1960)). In Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 168-169 (1963), we set forth a list of considerations that has proved helpful in the past in making such determinations. [Footnote 7] See, e.g., United States v. Ward, supra, at 448 U. S. 249-251; Bell v. Wolfish, 441 U. S. 520, 441 U. S. 537-538 (1979).Only one of the Mendoza-Martinez factors -- whether or not the proscribed behavior is already a crime -- lends any support to Mulcahey's position that § 924(d) imposes a criminal penalty. The fact that actions giving rise to forfeiture proceedings under § 924(d) may also entail the criminal penalties of § 922(a)(1) admittedly suggests that § 924(d) is criminal in nature. But that indication is not as strong as it might seem at first blush. United States v. Ward, supra, at 448 U. S. 250. Clearly, "Congress may impose both a criminal and a civil sanction in respect to the same act or omission," Helvering v. Mitchell, 303 U.S. at 303 U. S. 399; indeed, it has done so on other Page 465 U. S. 366 occasions. Moreover, Congress in fact drafted § 924(d) to cover a broader range of conduct than is proscribed by the criminal provisions of § 922(a)(1). See supra at 465 U. S. 363-364. Because the sanction embodied in § 924(d) is not limited to criminal misconduct, the forfeiture remedy cannot be said to be coextensive with the criminal penalty. What overlap there is between the two sanctions is not sufficient to persuade us that the forfeiture proceeding may not legitimately be viewed as civil in nature.In short, an analysis of the Mendoza-Martinez factors in no way undermines Congress' classification of the § 924(d) forfeiture action as a civil sanction. Mulcahey has failed to establish by the "clearest proof" that Congress has provided a sanction so punitive as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Rex Trailer Co. v. United States, 350 U. S. 148, 350 U. S. 154 (1956). We accordingly conclude that the forfeiture mechanism set forth in § 924(d) is not an additional penalty for the commission of a criminal act, but rather is a separate civil sanction, remedial in nature. Because the § 924(d) forfeiture proceeding brought against Mulcahey's firearms is not a criminal proceeding, it is not barred by the Double Jeopardy Clause.IVWe hold that a gun owner's acquittal on criminal charges involving firearms does not preclude a subsequent in rem forfeiture proceeding against those firearms under § 924(d). Neither collateral estoppel nor the Double Jeopardy Clause affords a doctrinal basis for such a rule of preclusion, and we reject today the contrary rationale of Coffey v. United States, 116 U. S. 436 (1886). The judgment of the United States Court of Appeals for the Fourth Circuit is accordingly reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. 89 Firearms, 465 U.S. 354 (1984)United States v. One Assortment of 89 FirearmsNo. 82-1047Argued November 30, 1983Decided February 22, 1984465 U.S. 354SyllabusUpon trial in Federal District Court, defendant Mulcahey, who asserted the defense of entrapment, was acquitted of charges of knowingly engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1). The Government then instituted this in rem action for forfeiture of the firearms involved, pursuant to 18 U.S.C. i 924(d), which authorizes forfeitures of any firearms "involved in or used or intended to be used in, any violation of the provisions of this chapter." Ordering forfeiture, the District Court rejected Mulcahey's defenses of res judicata and collateral estoppel based on his earlier acquittal. The Court of Appeals reversed, concluding that, because the § 924(d) forfeiture proceeding was criminal and punitive in nature, it was barred by double jeopardy principles in view of Mulcahey's prior acquittal. Relying on Coffey v. United States, 116 U. S. 436, the Court of Appeals also held that the forfeiture action was barred by collateral estoppel, because it was based upon the same facts as the earlier criminal action.Held: A gun owner's acquittal on criminal charges involving firearms does not preclude a subsequent in rem forfeiture proceeding against those firearms under § 924(d). Pp. 465 U. S. 357-366.(a) To the extent that Coffey v. United States, supra, suggests that collateral estoppel or double jeopardy automatically bars a civil, remedial forfeiture proceeding following an acquittal on related criminal charges, it is disapproved. Cf. Helvering v. Mitchell, 303 U. S. 391; One Lot Emerald Cut Stones v. United States, 409 U. S. 232. Pp. 465 U. S. 357-361.(b) The difference in the relative burdens of proof in the criminal and civil actions precludes the application of the doctrine of collateral estoppel. Acquittal on a criminal charge merely reflects the existence of a reasonable doubt as to Mulcahey's guilt, not innocence. Nor did the acquittal negate the possibility that a preponderance of the evidence in the forfeiture proceeding could show that Mulcahey was engaged in an unlicensed firearms business. Pp. 465 U. S. 361-362.(c) The Double Jeopardy Clause does not apply to civil proceedings, and is not applicable here. Under the procedural mechanisms established for enforcing forfeitures under § 924(d), Congress intended such Page 465 U. S. 355 forfeitures to be civil and remedial, rather than criminal and punitive. Moreover, the differences in the language of § 924(d), which subjects to forfeiture firearms used or "intended to be used" in substantive offenses and § 922(a)(1), which does not render unlawful mere intention to deal in firearms without a license, shows that the forfeiture provisions were meant to be broader in scope than the criminal sanctions. The forfeiture provision also furthers broad remedial aims of controlling the indiscriminate flow of firearms. Nor is the statutory scheme so punitive either in purpose or effect as to negate Congress' intention to establish a civil remedial mechanism. Pp. 465 U. S. 362-366.685 F.2d 913, reversed and remanded.BURGER, C.J., delivered the opinion for a unanimous Court.

1967_416

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.In Frothingham v. Mellon, 262 U. S. 447 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U.S.C. §§ 241a et seq., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that "each pay[s] income taxes of the United States," and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers. [Footnote 1] The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.The gravamen of the appellants' complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks Page 392 U. S. 86 and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants' constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, 20 U.S.C. § 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be "consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish." The specific criterion of that section attacked by the appellants is the requirement"that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate. . . ."20 U.S.C. § 241e(a)(2). Under § 206 of the Act, 20 U.S.C. § 241f, the Commissioner of Education is given broad powers to supervise a State's participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, Page 392 U. S. 87 and other printed and published instructional materials "for the use of children and teachers in public and private elementary and secondary schools." 20 U.S.C. § 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must"provide assurance that, to the extent consistent with law, such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State. . . ."20 U.S.C. § 823(a)(3)(b). While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, "with the consent and approval of the [appellees]," and that such funds have been used and will continue to be used to finance "instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools" and "the purchase of textbooks and instructional and library materials for use in religious and sectarian schools." Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because "they constitute a law respecting an establishment of religion" and because"they prohibit the free exercise of religion on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes."The complaint asked for a declaration that appellees' actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that, if appellees' actions are deemed within the authority and intent of the Act, "the Act is to that extent unconstitutional and void." The complaint also prayed for an injunction to enjoin appellees Page 392 U. S. 88 from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U.S.C. §§ 2282, 2284.The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, supra, provided "powerful" support for the Government's position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. 267 F. Supp. 351 (1967). The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. 271 F. Supp. 1 (1967). From the dismissal of their complaint on that ground, appellants appealed directly to this Court, 28 U.S.C. § 1253, and we noted probable jurisdiction. 389 U.S. 895 (1967). For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed.IWe must deal first with the Government's contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below. [Footnote 2] Under 28 U.S.C. § 1253, direct appeal to this Page 392 U. S. 89 Court from a district court lies only"from an order granting or denying . . . an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges."Thus, if the Government is correct, we lack jurisdiction over this direct appeal.The Government's argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable, and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U.S.C. § 2282. We cannot accept the Government's argument in the context of this case. It is true that the appellants' complaint makes specific reference to the New York City Board of Education's programs which are funded under the challenged statute, and we can assume that appellants' proof at trial would focus on those New York City programs. However, we view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit, and not as limiting the impact of the constitutional challenge made in this case. The injunctive relief sought by appellants is not limited to programs in operation in New York City, but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282"to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme . . . by issuance of a broad injunctive order."Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 154 (1963). If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York Page 392 U. S. 90 City's federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants' focus on New York City's programs.Secondly, the Government argues that a three-judge court should not have been convened, because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965, but its administration. [Footnote 3] The decision in Zemel v. Rusk, 381 U. S. 1 (1965), is dispositive on this issue. It is true that appellants' complaint states a nonconstitutional ground for relief, namely, that appellees' actions in approving the expenditure of federal funds for allegedly unconstitutional programs are in excess of their authority under the Act. However, the complaint also requests an alternative and constitutional ground for relief, namely, a declaration that, if appellees' actions "are within the authority and intent of the Act, the Act is, to that extent, unconstitutional and void." The Court noted in Zemel v. Rusk, supra,"[W]e have often held that a litigant need not abandon his nonconstitutional arguments in order to obtain Page 392 U. S. 91 a three-judge court."381 U.S. at 381 U. S. 6. See also Florida Lime Growers v. Jacobsen, 362 U. S. 73 (1960); Allen v. Grand Central Aircraft Co., 347 U. S. 535 (1954). The complaint in this case falls within that rule.Thus, since the three-judge court was properly convened below, [Footnote 4] direct appeal to this Court is proper. We turn now to the standing question presented by this case.IIThis Court first faced squarely [Footnote 5] the question whether a litigant asserting only his status as a taxpayer has standing to maintain a suit in a federal court in Frothingham v. Mellon, supra, and that decision must be the starting point for analysis in this case. The taxpayer in Frothingham attacked as unconstitutional the Maternity Act of 1921, 42 Stat. 224, which established a federal program of grants to those States which would undertake programs to reduce maternal and infant mortality. The taxpayer alleged that Congress, in enacting the challenged statute, had exceeded the powers delegated to it under Article I of the Constitution and had invaded the legislative province reserved to the several States by the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would be to increase her future federal tax Page 392 U. S. 92 liability, and "thereby take her property without due process of law." 262 U.S. at 262 U. S. 486. The Court noted that a federal taxpayer's "interest in the moneys of the Treasury . . . is comparatively minute and indeterminable," and that "the effect upon future taxation, of any payment out of the [Treasury's] funds, . . . [is] remote, fluctuating and uncertain." Id. at 262 U. S. 487. As a result, the Court ruled that the taxpayer had failed to allege the type of "direct injury" necessary to confer standing. Id. at 262 U. S. 488.Although the barrier Frothingham erected against federal taxpayer suits has never been breached, the decision has been the source of some confusion, and the object of considerable criticism. The confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled. [Footnote 6] The conflicting viewpoints are reflected in the arguments made to this Court by the parties in this case. The Government has pressed upon us the view that Frothingham announced a constitutional rule, compelled by the Article III limitations on federal court jurisdiction and grounded in considerations of the doctrine of separation of powers. Appellants, however, insist that Page 392 U. S. 93 Frothingham expressed no more than a policy of judicial self-restraint which can be disregarded when compelling reasons for assuming jurisdiction over a taxpayer's suit exist. The opinion delivered in Frothingham can be read to support either position. [Footnote 7] The concluding sentence of the opinion states that to take jurisdiction of the taxpayer's suit"would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess."262 U.S. at 262 U. S. 489. Yet the concrete reasons given for denying standing to a federal taxpayer suggest that the Court's holding rests on something less than a constitutional foundation. For example, the Court conceded that standing had previously been conferred on municipal taxpayers to sue in that capacity. However, the Court viewed the interest of a federal taxpayer in total federal tax revenues as "comparatively minute and indeterminable" when measured against a municipal taxpayer's interest in a smaller city treasury. Id. at 262 U. S. 486-487. This suggests that the petitioner in Frothingham was denied standing not because she was a taxpayer, but because her tax bill was not large enough. In addition, the Court spoke of the "attendant inconveniences" of entertaining that taxpayer's suit because it might open the door of federal courts to countless such suits"in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned."Id. at 262 U. S. 487. Such a statement suggests pure policy considerations. Page 392 U. S. 94To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions. For example, some commentators have pointed out that a number of corporate taxpayers today have a federal tax liability running into hundreds of millions of dollars, and such taxpayers have a far greater monetary stake in the Federal Treasury than they do in any municipal treasury. [Footnote 8] To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts with countless similar suits has been mitigated by the ready availability of the devices of class actions and joinder under the Federal Rules of Civil Procedure, adopted subsequent to the decision in Frothingham. [Footnote 9] Whatever the merits of the current debate over Frothingham, its very existence suggests that we should undertake a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.IIIThe jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to "cases" and "controversies." As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the Page 392 U. S. 95 words "cases" and "controversies" are two complementary but somewhat different limitations. In part, those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the "case and controversy" doctrine.Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, [Footnote 10] when the parties are asking for an advisory opinion, [Footnote 11] when the question sought to be adjudicated has been mooted by subsequent developments, [Footnote 12] and when there is no standing to maintain the action. [Footnote 13] Yet it remains true that"[j]usticiability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures. . . ."Poe v. Ullman, 367 U. S. 497, 367 U. S. 508 (1961).Part of the difficulty in giving precise meaning and form to the concept of justiciability stems from the uncertain Page 392 U. S. 96 historical antecedents of the "case and controversy" doctrine. For example, Mr. Justice Frankfurter twice suggested that historical meaning could be imparted to the concepts of justiciability and case and controversy by reference to the practices of the courts of Westminster when the Constitution was adopted. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 341 U. S. 150 (1951) (concurring opinion); Coleman v. Miller, 307 U. S. 433, 307 U. S. 460 (1939) (separate opinion). However, the power of English judges to deliver advisory opinions was well established at the time the Constitution was drafted. 3 K. Davis, Administrative Law Treatise 127-128 (1958). And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U. S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). However, the rule against advisory opinions also recognizes that such suits often"are not pressed before the Court with that clear concreteness provided when a question emerges precisely Page 392 U. S. 97 framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests."United States v. Fruehauf, 365 U. S. 146, 365 U. S. 157 (1961). Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine: federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.Additional uncertainty exists in the doctrine of justiciability because that doctrine has become a blend of constitutional requirements and policy considerations. And a policy limitation is "not always clearly distinguished from the constitutional limitation." Barrows v. Jackson, 346 U. S. 249, 346 U. S. 255 (1953). For example, in his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 345-348 (1936), Mr. Justice Brandeis listed seven rules developed by this Court "for its own governance" to avoid passing prematurely on constitutional questions. Because the rules operate in "cases confessedly within [the Court's] jurisdiction," id. at 297 U. S. 346, they find their source in policy, rather than purely constitutional, considerations. However, several of the cases cited by Mr. Justice Brandeis in illustrating the rules of self-governance articulated purely constitutional grounds for decision. See, e.g., Massachusetts v. Mellon, 262 U. S. 447 (1923); Fairchild v. Hughes, 258 U. S. 126 (1922); Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). The "many subtle pressures" [Footnote 15] which cause policy considerations to blend into the constitutional limitations of Article III make the justiciability doctrine one of uncertain and shifting contours. Page 392 U. S. 98It is in this context that the standing question presented by this case must be viewed and that the Government's argument on that question must be evaluated. As we understand it, the Government's position is that the constitutional scheme of separation of powers, and the deference owed by the federal judiciary to the other two branches of government within that scheme, present an absolute bar to taxpayer suits challenging the validity of federal spending programs. The Government views such suits as involving no more than the mere disagreement by the taxpayer "with the uses to which tax money is put." [Footnote 16] According to the Government, the resolution of such disagreements is committed to other branches of the Federal Government, and not to the judiciary. Consequently, the Government contends that under no circumstances should standing be conferred on federal taxpayers to challenge a federal taxing or spending program. [Footnote 17] An analysis of the function served by standing limitations compels a rejection of the Government's position.Standing is an aspect of justiciability, and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. Page 392 U. S. 99 Standing has been called one of "the most amorphous [concepts] in the entire domain of public law." [Footnote 18] Some of the complexities peculiar to standing problems result because standing "serves, on occasion, as a shorthand expression for all the various elements of justiciability." [Footnote 19] In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional limitations. [Footnote 20]Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court, and not on the issues he wishes to have adjudicated. The "gist of the question of standing" is whether the party seeking relief has"alleged 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). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is Page 392 U. S. 100 challenged is a proper party to request an adjudication of a particular issue, and not whether the issue itself is justiciable. [Footnote 21] Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question. [Footnote 22] A proper party is demanded so that federal courts will not be asked to decide "ill-defined controversies over constitutional issues," United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 90 (1947), or a case which is of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 300 U. S. 240 (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Trunk R. Co. v. Wellman, supra, or those which are feigned or collusive in nature, United States v. Johnson, 319 U. S. 302 (1943); Lord v. Veazie, 8 How. 251 (1850).When the emphasis in the standing problem is placed on whether the person invoking a federal court's jurisdiction is a proper party to maintain the action, the weakness of the Government's argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems Page 392 U. S. 101 arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has "a personal stake in the outcome of the controversy," Baker v. Carr, supra, at 369 U. S. 204, and whether the dispute touches upon "the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, supra, at 300 U. S. 240-241. A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs. There remains, however, the problem of determining the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.IVThe various rules of standing applied by federal courts have not been developed in the abstract. Rather, they have been fashioned with specific reference to the status asserted by the party whose standing is challenged and to the type of question he wishes to have adjudicated. We have noted that, in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be nonjusticiable. However, our decisions Page 392 U. S. 102 establish that, in ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. For example, standing requirements will vary in First Amendment religion cases depending upon whether the party raises an Establishment Clause claim or a claim under the Free Exercise Clause. See McGowan v. Maryland, 366 U. S. 420, 366 U. S. 429-430 (1961). Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power. Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U. S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds Page 392 U. S. 103 specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy, and will be a proper and appropriate party to invoke a federal court's jurisdiction.The taxpayer appellants in this case have satisfied both nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds. [Footnote 23] In addition, appellants have alleged that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment. Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. James Madison, who is generally recognized as the leading architect of the religion clauses of the First Amendment, observed in his famous Memorial and Remonstrance Against Religious Assessments that"the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever."2 Writings of James Madison 183, 186 (Hunt ed.1901). The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if Page 392 U. S. 104 government could employ its taxing and spending powers to aid one religion over another or to aid religion in general. [Footnote 24] The Establishment Clause was designed as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment [Footnote 25] operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8.The allegations of the taxpayer in Frothingham v. Mellon, supra, were quite different from those made in this case, and the result in Frothingham is consistent with the test of taxpayer standing announced today. The taxpayer in Frothingham attacked a federal spending program, and she, therefore, established the first nexus Page 392 U. S. 105 required. However, she lacked standing because her constitutional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxing and spending power. The taxpayer in Frothingham alleged essentially that Congress, by enacting the challenged statute, had exceeded the general powers delegated to it by Art. I, § 8, and that Congress had thereby invaded the legislative province reserved to the States by the Tenth Amendment. To be sure, Mrs. Frothingham made the additional allegation that her tax liability would be increased as a result of the allegedly unconstitutional enactment, and she framed that allegation in terms of a deprivation of property without due process of law. However, the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability, and the taxpayer in Frothingham failed to make any additional claim that the harm she alleged resulted from a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power. In essence, Mrs. Frothingham was attempting to assert the States' interest in their legislative prerogatives, and not a federal taxpayer's interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress' taxing and spending power.We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have standing Page 392 U. S. 106 consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness, and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases, such as Frothingham, where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.While we express no view at all on the merits of appellants' claims in this case, [Footnote 26] their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court's jurisdiction for an adjudication on the merits.Reversed

U.S. Supreme CourtFlast v. Cohen, 392 U.S. 83 (1968)Flast v. CohenNo. 416Argued March 12, 1968Decided June 10, 1968392 U.S. 83SyllabusAppellant taxpayers allege that federal funds have been disbursed by appellee federal officials under the Elementary and Secondary Education Act of 1965 to finance instruction and the purchase of educational materials for use in religious and sectarian schools, in violation of the Establishment and Free Exercise Clauses of the First Amendment. Appellants sought a declaration that the expenditures were not authorized by the Act or, in the alternative, that the Act is to that extent unconstitutional, and requested the convening of a three-judge court. A three-judge court ruled, on the authority of Frothingham v. Mellon, 262 U. S. 447 (1923), that appellants lacked standing to maintain the action.Held:1. The three-judge court was properly convened, as the constitutional attack, even though focused on the program's operations in New York City, would, if successful, affect the entire regulatory scheme of the statute, and the complaint alleged a constitutional ground for relief, albeit one coupled with an alternative nonconstitutional ground. Pp. 392 U. S. 88-91.2. There is no absolute bar in Art. III of the Constitution to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs, since the taxpayers may or may not have the requisite personal stake in the outcome. Pp. 392 U. S. 91-101.3. To maintain an action challenging the constitutionality of a federal spending program, individuals must demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Art. III requirements. Pp. 392 U. S. 102-103.(a) Taxpayers must establish a logical link between that status and the type of legislative enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. P. 392 U. S. 102.(b) Taxpayers must also establish a nexus between that status and the precise nature of the constitutional infringement alleged. They must show that the statute exceeds specific constitutional Page 392 U. S. 84 limitations on the exercise of the taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp. 1 392 U. S. 02-103.4. The taxpayer appellants here have standing consistent with Art. III to invoke federal judicial power, since they have alleged that tax money is being spent in violation of a specific constitutional protection against the abuse of legislative power, i.e., the Establishment Clause of the First Amendment. Frothingham v. Mellon, supra, distinguished. Pp. 392 U. S. 103-106.271 F. Supp. 1, reversed. Page 392 U. S. 85

1974_73-762

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Appellant Carol Sosna married Michael Sosna on September 5, 1964, in Michigan. They lived together in New York between October, 1967, and August, 1971, after which date they separated but continued to live in New York. In August, 1972, appellant moved to Iowa with her three children, and the following month she petitioned the District Court of Jackson County, Iowa, for a dissolution of her marriage. Michael Sosna, who had been personally served with notice of the action when he came to Iowa to visit his children, made a special appearance to contest the jurisdiction of the Iowa court. The Iowa court dismissed the petition for lack of jurisdiction, finding that Michael Sosna was not a resident of Iowa and appellant had not been a resident of the State of Iowa for one year preceding the filing of her petition. In so doing, the Iowa court applied the provisions of Iowa Code § 598.6 (1973) requiring that the petitioner in such an action be "for the last year a resident of the state." [Footnote 1]Instead of appealing this ruling to the Iowa appellate courts, appellant filed a complaint in the United States District Court for the Northern District of Iowa asserting that Iowa's durational residency requirement for invoking Page 419 U. S. 396 its divorce jurisdiction violated the United States Constitution. She sought both injunctive and declaratory relief against the appellees in this case, one of which is the State of Iowa, [Footnote 2] and the other of whom is the judge of the District Court of Jackson County, Iowa, who had previously dismissed her petition.A three-judge court, convened pursuant to 28 U.S.C. §§ 2281, 2284, held that the Iowa durational residency requirement was constitutional. 360 F. Supp. 1182 (1973). We noted probable jurisdiction, 415 U.S. 911 (1974), and directed the parties to discuss"whether the United States District Court should have proceeded to the merits of the constitutional issue presented in light of Younger v. Harris, 401 U. S. 37 (1971) and related cases."For reasons stated in this opinion, we decide that this case is not moot, and hold that the Iowa durational residency requirement for divorce does not offend the United States Constitution. [Footnote 3] Page 419 U. S. 397IAppellant sought certification of her suit as a class action pursuant to Fed.Rule Civ.Proc. 23 so that she might represent the"class of those residents of the State of Iowa who have resided therein for a period of less than one year and who desire to initiate actions for dissolution of marriage or legal separation, and who are barred from doing so by the one-year durational residency requirement embodied in Sections 598.6 and 598.9 of the Code of Iowa. [Footnote 4]"The parties stipulated that there were in the State of Iowa "numerous people in the same situation as plaintiff," that joinder of those persons was impracticable, that appellant's claims were representative of the class, and that she would fairly and adequately protect the interests of the class. See Rule 23(a). This stipulation was approved by the District Page 419 U. S. 398 Court in a pretrial order. [Footnote 5] After the submission of briefs and proposed findings of fact and conclusions of law by the parties, the three-judge court, by a divided, vote upheld the constitutionality of the statute.While the parties may be permitted to waive nonjurisdictional defects, they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual "case or controversy," Richardson v. Ramirez, 418 U. S. 24 (1974), and, on the record before us, we feel obliged to address the question of mootness before reaching the merits of appellant's claim. At the time the judgment of the three-judge court was handed down, appellant had not yet resided in Iowa for one year, and that court was clearly presented with a case or controversy in every sense contemplated by Art. III of the Constitution. [Footnote 6] By the time her case reached this Court, however, appellant had long since satisfied the Iowa durational residency requirement, and Iowa Code 598.6 (1973) no longer stood as a barrier to her attempts to secure dissolution of her marriage in the Iowa courts. [Footnote 7] This is not an unusual development in a case challenging the validity of a durational residency requirement, for in many cases, appellate review Page 419 U. S. 399 will not be completed until after the plaintiff has satisfied the residency requirement about which complaint was originally made.If appellant had sued only on her own behalf, both the fact that she now satisfies the one-year residency requirement and the fact that she has obtained a divorce elsewhere would make this case moot, and require dismissal. Alton v. Alton, 207 F.2d 667 (CA3 1953), dismissed as moot, 347 U. S. 610 (1954); SEC v. Medical Committee for Human Rights, 404 U. S. 403 (1972). But appellant brought this suit as a class action and sought to litigate the constitutionality of the durational residency requirement in a representative capacity. When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant. [Footnote 8] We are of the view that this factor significantly affects the mootness determination.In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), where a challenged ICC order had expired, and in Moore v. Ogilvie, 394 U. S. 814 (1969), where petitioners sought to be certified as candidates in an election that had already been held, the Court expressed its concern that the defendants in those cases could be expected again to act contrary to the rights asserted by the particular named plaintiffs involved, and in each case the controversy was held not to be moot because the questions presented were "capable of repetition, yet Page 419 U. S. 400 evading review." That situation is not presented in appellant's case, for the durational residency requirement enforced by Iowa does not at this time bar her from the Iowa courts. Unless we were to speculate that she may move from Iowa, only to return and later seek a divorce within one year from her return, the concerns that prompted this Court's holdings in Southern Pacific and Moore do not govern appellant's situation. But even though appellees in this proceeding might not again enforce the Iowa durational residency requirement against appellant, it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified. In this sense, the case before us is one in which state officials will undoubtedly continue to enforce the challenged statute and yet, because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.This problem was present in Dunn v. Blumstein, 405 U. S. 330 (1972), and was there implicitly resolved in favor of the representative of the class. Respondent Blumstein brought a class action challenging the Tennessee law which barred persons from registering to vote unless, at the time of the next election, they would have resided in the State for a year and in a particular county for three months. By the time the District Court opinion was filed, Blumstein had resided in the county for the requisite three months, and the State contended that his challenge to the county requirement was moot. The District Court rejected this argument, Blumstein v. Ellington, 337 F. Supp. 323, 32326 (MD Tenn.1970). Although the State did not raise a mootness argument in this Court, we observed that the District Court had been correct:"Although appellee now can vote, the problem to voters posed by the Tennessee residence requirements Page 419 U. S. 401 is "capable of repetition, yet evading review.'"" 405 U.S. at 405 U. S. 333 n. 2. Although the Court did not expressly note the fact, by the time it decided the case, Blumstein had resided in Tennessee for far more than a year.The rationale of Dunn controls the present case. Although the controversy is no longer live as to appellant Sosna, it remains very much alive for the class of persons she has been certified to represent. Like the other voters in Dunn, new residents of Iowa are aggrieved by an allegedly unconstitutional statute enforced by state officials. We believe that a case such as this, in which, as in Dunn, the issue sought to be litigated escapes full appellate review at the behest of any single challenger, does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs. [Footnote 9] Dunn, supra; Rosario v. Rockefeller, 410 U. S. 752, 410 U. S. 756 n. 5 (1973); Vaughan v. Bower, 313 F. Supp. 37, 40 (Ariz.), aff'd, 400 U.S. 884 (1970). [Footnote 10] We note, however, Page 419 U. S. 402 that the same exigency that justifies this doctrine serves to identify its limits. In cases in which the alleged harm would not dissipate during the normal time required for resolution of the controversy, the general principles of Art. III jurisdiction require that the plaintiff's personal stake in the litigation continue throughout the entirety of the litigation.Our conclusion that this case is not moot in no way detracts from the firmly established requirement that the judicial power of Art. III courts extends only to "cases and controversies" specified in that Article. There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, [Footnote 11] but there must be a live controversy at the time this Court reviews the case. [Footnote 12] SEC v. Medical Committee for Human Rights, supra. The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.In so holding, we disturb no principles established by our decisions with respect to class action litigation. A Page 419 U. S. 403 named plaintiff in a class action must show that the threat of injury in a case such as this is "real and immediate," not "conjectural" or "hypothetical." O'Shea v. Littleton, 414 U. S. 488, 414 U. S. 494 (1974); Golden v. Zwickler, 394 U. S. 103, 394 U. S. 109-110 (1969). A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court. Bailey v. Patterson, 369 U. S. 31 (1962); Rosario, supra; Hall v. Beals, 396 U. S. 45 (1969). Appellant Sosna satisfied these criteria.This conclusion does not automatically establish that appellant is entitled to litigate the interests of the class she seeks to represent, but it does shift the focus of examination from the elements of justiciability to the ability of the named representative to "fairly and adequately protect the interests of the class." Rule 23(a). Since it is contemplated that all members of the class will be bound by the ultimate ruling on the merits, Rule 23(c)(3), the district court must assure itself that the named representative will adequately protect the interests of the class. In the present suit, where it is unlikely that segments of the class appellant represents would have interests conflicting with those she has sought to advance, [Footnote 13] and where the interests of that class have been competently urged at each level of the proceeding, we believe that the test of Rule 23(a) is met. We therefore address ourselves to the merits of appellant's constitutional claim. Page 419 U. S. 404IIThe durational residency requirement under attack in this case is a part of Iowa's comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 62 U. S. 584 (1859), the Court said: "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce. . . ." In Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 734-735 (1878), the Court said:"The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizen shall be created, and the causes for which it may be dissolved,"and the same view was reaffirmed in Simms v. Simms, 175 U. S. 162, 175 U. S. 167 (1899).The statutory scheme in Iowa, like those in other States, sets forth in considerable detail the grounds upon which a marriage may be dissolved and the circumstances in which a divorce may be obtained. Jurisdiction over a petition for dissolution is established by statute in "the county where either party resides," Iowa Code § 598.2 (1973), and the Iowa courts have construed the term "resident" to have much the same meaning as is ordinarily associated with the concept of domicile. Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 848 (1951). Iowa has recently revised its divorce statutes, incorporating the no-fault concept, [Footnote 14] but it retained the one-year durational residency requirement.The imposition of a durational residency requirement for divorce is scarcely unique to Iowa, since 48 States impose such a requirement as a condition for maintaining Page 419 U. S. 405 an action for divorce. [Footnote 15] As might be expected, the periods vary among the States and range from six weeks [Footnote 16] to two years. [Footnote 17] The one-year period selected by Iowa is the most common length of time prescribed. [Footnote 18]Appellant contends that the Iowa requirement of one year's residence is unconstitutional for two separate reasons: first, because it establishes two classes of persons and discriminates against those who have recently exercised their right to travel to Iowa, thereby contravening the Court's holdings in Shapiro v. Thompson, 394 U. S. 618 (1969); Dunn v. Blumstein, 405 U. S. 330 (1972); and Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); and, second, because it denies a litigant the opportunity to make an individualized showing of bona fide residence, and therefore denies such residents access to the only method of legally dissolving their marriage. Vlandis v. Kline, 412 U. S. 441 (1973); Boddie v. Connecticut, 401 U. S. 371 (1971). Page 419 U. S. 406State statutes imposing durational residency requirements were, of course, invalidated when imposed by States as a qualification for welfare payments, Shapiro, supra; for voting, Dunn, supra; and for medical care, Maricopa County, supra. But none of those cases intimated that the States might never impose durational residency requirements, and such a proposition was, in fact, expressly disclaimed. [Footnote 19] What those cases had in common was that the durational residency requirements they struck down were justified on the basis of budgetary or recordkeeping considerations which were held insufficient to outweigh the constitutional claims of the individuals. But Iowa's divorce residency requirement is of a different stripe. Appellant was not irretrievably foreclosed from obtaining some part of what she sought, as was the case with the welfare recipients in Shapiro, the voters in Dunn, or the indigent patient in Maricopa County. She would eventually qualify for the same sort of adjudication which she demanded virtually upon her arrival in the State. Iowa's requirement delayed her access to the courts, but, by fulfilling it, she could ultimately have obtained the same opportunity for adjudication which she asserts ought to have been hers at an earlier point in time.Iowa's residency requirement may reasonably be justified on grounds other than purely budgetary considerations or administrative convenience. Cf. Kahn v. Shevin, 416 U. S. 351 (1974). A decree of divorce is not a matter in which the only interested parties are the State as a sort of "grantor," and a divorce petitioner such as appellant in the role of "grantee." Both spouses are obviously interested in the proceedings, since it will affect their marital status and very likely their property rights. Where a married couple has minor children, a decree of Page 419 U. S. 407 divorce would usually include provisions for their custody and support. With consequences of such moment riding on a divorce decree issued by its courts, Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State required here.Such a requirement additionally furthers the State's parallel interests both in avoiding officious intermeddling in matters in which another State has a paramount interest, and in minimizing the susceptibility of its own divorce decrees to collateral attack. A State such as Iowa may quite reasonably decide that it does not wish to become a divorce mill for unhappy spouses who have lived there as short a time as appellant had when she commenced her action in the state court after having long resided elsewhere. Until such time as Iowa is convinced that appellant intends to remain in the State, it lacks the "nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance." Williams v. North Carolina, 325 U. S. 226, 325 U. S. 229 (1945). Perhaps even more important, Iowa's interests extend beyond its borders and include the recognition of its divorce decrees by other States under the Full Faith and Credit Clause of the Constitution, Art. IV, § 1. For that purpose, this Court has often stated that "judicial power to grant a divorce -- jurisdiction, strictly speaking -- is founded on domicil." Williams, supra; Andrews v. Andrews, 188 U. S. 14 (1903); Bell v. Bell, 181 U. S. 175 (1901). Where a divorce decree is entered after a finding of domicile in ex parte proceedings, [Footnote 20] this Court has held that the Page 419 U. S. 408 finding of domicile is not binding upon another State, and may be disregarded in the face of "cogent evidence" to the contrary. Williams, supra, at 325 U. S. 236. For that reason, the State asked to enter such a decree is entitled to insist that the putative divorce petitioner satisfy something more than the bare minimum of constitutional requirements before a divorce may be granted. The State's decision to exact a one-year residency requirement as a matter of policy is therefore buttressed by a quite permissible inference that this requirement not only effectuates state substantive policy, but likewise provides a greater safeguard against successful collateral attack than would a requirement of bona fide residence alone. [Footnote 21] This is precisely the Page 419 U. S. 409 sort of determination that a State in the exercise of its domestic relations jurisdiction is entitled to make.We therefore hold that the state interest in requiring that those who seek a divorce from its courts be genuinely attached to the State, as well as a desire to insulate divorce decrees from the likelihood of collateral attack, requires a different resolution of the constitutional issue presented than was the case in Shapiro, supra, Dunn, supra, and Maricopa County, supra.Nor are we of the view that the failure to provide an individualized determination of residency violates the Due Process Clause of the Fourteenth Amendment. Vlandis v. Kline, 412 U. S. 441 (1973), relied upon by appellant, held that Connecticut might not arbitrarily invoke a permanent and irrebuttable presumption of nonresidence against students who sought to obtain in-state tuition rates when that presumption was not necessarily or universally true in fact. But in Vlandis, the Court warned that its decision should not"be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement."Id. at 412 U. S. 452. See Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), aff'd, 401 U.S. 985 (1971). An individualized determination of physical presence plus the intent to remain, which appellant apparently seeks, would not entitle her to a divorce even if she could have made such a showing. [Footnote 22] For Page 419 U. S. 410 Iowa requires not merely "domicile" in that sense, but residence in the State for a year in order for its courts to exercise their divorce jurisdiction.In Boddie v. Connecticut, supra, this Court held that Connecticut might not deny access to divorce courts to those persons who could not afford to pay the required fee. Because of the exclusive role played by the State in the termination of marriages, it was held that indigents could not be denied an opportunity to be heard "absent a countervailing state interest of overriding significance." 401 U.S. at 401 U. S. 377. But the gravamen of appellant Sosna's claim is not total deprivation, as in Boddie, but only delay. The operation of the filing fee in Boddie served to exclude forever a certain segment of the population from obtaining a divorce in the courts of Connecticut. No similar total deprivation is present in appellant's case, and the delay which attends the enforcement of the one-year durational residency requirement is, for the reasons previously stated, consistent with the provisions of the United States Constitution.Affirmed

U.S. Supreme CourtSosna v. Iowa, 419 U.S. 393 (1975)Sosna v. IowaNo. 73-762Argued October 17, 1974Decided January 14, 1975419 U.S. 393SyllabusAppellant's petition for divorce was dismissed by an Iowa trial court for lack of jurisdiction because she failed to meet the Iowa statutory requirement that a petitioner in a divorce action be a resident of the State for one year preceding the filing of the petition. Appellant then brought a class action under Fed.Rule Civ.Proc. 23 in the Federal District Court against appellees State and state trial judge, asserting that Iowa's durational residency requirement violated the Federal Constitution on equal protection and due process grounds and seeking injunctive and declaratory relief. After certifying that appellant represented the class of persons residing in Iowa for less than a year who desired to initiate divorce actions, the three-judge District Court upheld the constitutionality of the statute.Held:1. The fact that appellant had long since satisfied the durational residency requirement by the time the case reached this Court does not moot the case, since the controversy remains very much alive for the class of unnamed persons whom she represents and who, upon certification of the class action, acquired a legal status separate from her asserted interest. Dunn v. Blumstein, 405 U. S. 330. Pp. 419 U. S. 397-403.(a) Where, as here, the issue sought to be litigated escapes full appellate review at the behest of any single challenger, the case does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs. P. 419 U. S. 401.(b) At the time the class action was certified, appellant demonstrated a "real and immediate" threat of injury and belonged to the class that she sought to represent. Pp. 419 U. S. 402-403.(c) The test of Rule 23(a) that the named representative in a class action "fairly and adequately protect the interests of the class," is met here, where it is unlikely that segments of the class represented would have interests conflicting with appellant's, and the interests of the class have been competently urged at each level of the proceeding. P. 419 U. S. 403. Page 419 U. S. 3942. The Iowa durational residency requirement for divorce is not unconstitutional. Pp. 419 U. S. 404-410.(a) Such requirement is not unconstitutional on the alleged ground that it establishes two classes of persons and discriminates against those who have recently exercised their right to travel to Iowa. Appellant was not irretrievably foreclosed from obtaining some part of what she sought, and such requirement may reasonably be justified on grounds of the State's interest in requiring those seeking a divorce from its courts to be genuinely attached to the State, as well as of the State's desire to insulate its divorce decrees from the likelihood of successful collateral attack. Shapiro v. Thompson, 394 U. S. 618; Dunn, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250, distinguished. Pp. 419 U. S. 406-409.(b) Nor does the durational residency requirement violate the Due Process Clause of the Fourteenth Amendment on the asserted ground that it denies a litigant the opportunity to make an individualized showing of bona fide residence, and thus bars access to the divorce courts. Even if appellant could make an individualized showing of physical presence plus the intent to remain, she would not be entitled to a divorce, for Iowa requires not merely "domicile" in that sense, but residence in the State for one year. See Vlandis v. Kline, 412 U. S. 441, 412 U. S. 452. Moreover, no total deprivation of access to divorce courts, but only delay in such access, is involved here. Boddie v. Connecticut, 401 U. S. 371, distinguished. Pp. 419 U. S. 409-410.360 F. Supp. 1182, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, STEWART, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a dissenting opinion, post, p. 419 U. S. 410. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 419 U. S. 418. Page 419 U. S. 395

1966_105

MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellants were members of the faculty of the privately owned and operated University of Buffalo, and became state employees when the University was merged in 1962 into the State University of New York, an institution of higher education owned and operated by the State of New York. As faculty members of the State University, their continued employment was conditioned upon their compliance with a New York plan, formulated Page 385 U. S. 592 partly in statutes and partly in administrative regulations, [Footnote 1] which the State utilizes to prevent the appointment or retention of "subversive" persons in state employment.Appellants Hochfield and Maud were Assistant Professors of English, appellant Keyishian an instructor in English, and appellant Garver, a lecturer in philosophy. Each of them refused to sign, as regulations then in effect required, a certificate that he was not a Communist, and that, if he had ever been a Communist, he had communicated that fact to the President of the State University of New York. Each was notified that his failure to sign the certificate would require his dismissal. Keyishian's one-year-term contract was not renewed, because of his failure to sign the certificate. Hochfield and Garver, whose contracts still had time to run, continue to teach, but subject to proceedings for their dismissal if the constitutionality of the New York plan is sustained. Maud has voluntarily resigned, and therefore no longer has standing in this suit.Appellant Starbuck was a non-faculty library employee and part-time lecturer in English. Personnel in that classification were not required to sign a certificate, but were required to answer in writing under oath the question,"Have you ever advised or taught or were you ever a member of any society or group of persons which taught or advocated the doctrine that the Government of the United States or of any political subdivisions thereof should be overthrown or overturned by force, violence or any unlawful means?"Starbuck refused to answer the question, and, as a result, was dismissed.Appellants brought this action for declaratory and injunctive relief, alleging that the state program violated the Federal Constitution in various respects. A three-judge Page 385 U. S. 593 federal court held that the program was constitutional. 255 F. Supp. 981. [Footnote 2] We noted probable jurisdiction of appellants' appeal, 384 U.S. 998. We reverse.IWe considered some aspects of the constitutionality of the New York plan 15 years ago in Adler v. Board of Education, 342 U. S. 485. That litigation arose after New York passed the Feinberg Law, which added § 3022 to the Education Law. [Footnote 3] The Feinberg Law was enacted to implement and enforce two earlier statutes. The first was a 1917 law, now § 3021 of the Education Law, under which "the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act" is a ground for dismissal from the public school system. The second was a 1939 law which was § 12-a of the Civil Service Law when Adler was decided and, as amended, is now § 105 of that law. This law disqualifies from the civil service and from employment in the educational system any person who advocates the overthrow of government by force, violence, or any unlawful means, or publishes material advocating such overthrow, or organizes or joins any society or group of persons advocating such doctrine.The Feinberg Law charged the State Board of Regents with the duty of promulgating rules and regulations providing procedures for the disqualification or removal of persons in the public school system who violate the 1917 law or who are ineligible for appointment to or Page 385 U. S. 594 retention in the public school system under the 1939 law. The Board of Regents was further directed to make a list, after notice and hearing, of "subversive" organizations, defined as organizations which advocate the doctrine of overthrow of government by force, violence, or any unlawful means. Finally, the Board was directed to provide in its rules and regulations that membership in any listed organization should constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the State.The Board of Regents thereupon promulgated rules and regulations containing procedures to be followed by appointing authorities to discover persons ineligible for appointment or retention under the 1939 law, or because of violation of the 1917 law. The Board also announced its intention to list "subversive" organizations after requisite notice and hearing, and provided that membership in a listed organization after the date of its listing should be regarded as constituting prima facie evidence of disqualification, and that membership prior to listing should be presumptive evidence that membership has continued, in the absence of a showing that such membership was terminated in good faith. Under the regulations, an appointing official is forbidden to make an appointment until after he has first inquired of an applicant's former employers and other persons to ascertain whether the applicant is disqualified or ineligible for appointment. In addition, an annual inquiry must be made to determine whether an appointed employee has ceased to be qualified for retention, and a report of findings must be filed.Adler was a declaratory judgment suit in which the Court held, in effect, that there was no constitutional infirmity in former § 12-a or in the Feinberg Law on their faces, and that they were capable of constitutional application. But the contention urged in this case that Page 385 U. S. 595 both § 3021 and § 105 are unconstitutionally vague was not heard or decided. Section 3021 of the Education Law was challenged in Adler as unconstitutionally vague, but because the challenge had not been made in the pleadings or in the proceedings in the lower courts, this Court refused to consider it. 342 U.S. at 342 U. S. 496. Nor was any challenge on grounds of vagueness made in Adler as to subdivisions 1(a) and (b) of § 105 of the Civil Service Law. [Footnote 4] Subdivision 3 of § 105 was not added until 1958. Appellants in this case timely asserted below the unconstitutionality of all these sections on grounds of vagueness, and that question is now properly before us for decision. Moreover, to the extent that Adler sustained the provision of the Feinberg Law constituting membership in an organization advocating forceful overthrow of government a ground for disqualification, pertinent constitutional doctrines have since rejected the premises upon which that conclusion rested. Adler is therefore not dispositive of the constitutional issues we must decide in this case.IIA 1953 amendment extended the application of the Feinberg Law to personnel of any college or other institution of higher education owned and operated by the State or its subdivisions. In the same year, the Board of Regents, after notice and hearing, listed the Communist Party of the United States and of the State of New York as "subversive organizations." In 1956, each applicant for an appointment or the renewal of an appointment was required to sign the so-called "Feinberg Certificate" declaring that he had read the Regents Rules and understood that the Rules and the statutes Page 385 U. S. 596 constituted terms of employment, and declaring further that he was not a member of the Communist Party, and that, if he had ever been a member, he had communicated that fact to the President of the State University. This was the certificate that appellants Hochfield, Maud, Keyishian, and Garver refused to sign.In June, 1965, shortly before the trial of this case, the Feinberg Certificate was rescinded and it was announced that no person then employed would be deemed ineligible for continued employment "solely" because he refused to sign the certificate. In lieu of the certificate, it was provided that each applicant be informed before assuming his duties that the statutes, §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law, constituted part of his contract. He was particularly to be informed of the disqualification which flowed from membership in a listed "subversive" organization. The 1965 announcement further provides:"Should any question arise in the course of such inquiry, such candidate may request . . . a personal interview. Refusal of a candidate to answer any question relevant to such inquiry by such officer shall be sufficient ground to refuse to make or recommend appointment."A brochure is also given new applicants. It outlines and explains briefly the legal effect of the statutes and invites any applicant who may have any question about possible disqualification to request an interview. The covering announcement concludes that "a prospective appointee who does not believe himself disqualified need take no affirmative action. No disclaimer oath is required."The change in procedure in no wise moots appellants' constitutional questions raised in the context of their refusal to sign the now abandoned Feinberg Certificate. The substance of the statutory and regulatory complex remains, and, from the outset, appellants' basic claim has been that they are aggrieved by its application. Page 385 U. S. 597IIISection 3021 requires removal for "treasonable or seditious" utterances or acts. The 1958 amendment to § 105 of the Civil Service Law, now subdivision 3 of that section, added such utterances or acts as a ground for removal under that law also. [Footnote 5] The same wording is used in both statutes -- that "the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts" shall be ground for removal. But there is a vital difference between the two laws. Section 3021 does not define the terms "treasonable or Page 385 U. S. 598 seditious" as used in that section; in contrast, subdivision 3 of § 105 of the Civil Service Law provides that the terms "treasonable word or act" shall mean "treason" as defined in the Penal Law and the terms "seditious word or act" shall mean "criminal anarchy" as defined in the Penal Law.Our experience under the Sedition Act of 179, 1 Stat. 596, taught us that dangers fatal to First Amendment freedoms inhere in the word "seditious." See New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 273-276. And the word "treasonable," if left undefined, is no less dangerously uncertain. Thus, it becomes important whether, despite the omission of a similar reference to the Penal Law in 3021, the words as used in that section are to be read as meaning only what they mean in subdivision 3 of 105. Or are they to be read more broadly, and to constitute utterances or acts "seditious" and "treasonable" which would not be so regarded for the purposes of § 105?Even assuming that "treasonable" and "seditious" in 3021 and 105, subd. 3, have the same meaning, the uncertainty is hardly removed. The definition of "treasonable" in the Penal Law presents no particular problem. The difficulty centers upon the meaning of "seditious." Subdivision 3 equates the term "seditious" with "criminal anarchy" as defined in the Penal Law. Is the reference only to Penal Law § 160, defining criminal anarchy as"the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means?"But that section ends with the sentence "The advocacy of such doctrine either by word of mouth or writing is a felony." Does that sentence draw into § 105, Penal Law § 161, proscribing "advocacy of criminal anarchy"? If so, the Page 385 U. S. 599 possible scope of "seditious" utterances or acts has virtually no limit. For, under Penal Law § 161, one commits the felony of advocating criminal anarchy if he". . . publicly displays any book . . . containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or ay unlawful means. [Footnote 6]"Does the teacher who carries a copy of the Communist Manifesto on a public street thereby advocate criminal anarchy? It is no answer to say that the statute would not be applied in such a case. We cannot gainsay the potential effect of this obscure wording on "those with a conscientious and scrupulous regard for such undertakings." Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 374. Even were it certain that the definition referred to in 105 was solely Penal Law § 160, the scope of § 105 still remains indefinite. The teacher cannot know the extent, if any, to which a "seditious" utterance must transcend mere statement about abstract doctrine, the extent to which it must be intended to and tend to indoctrinate or incite to action in furtherance of the defined doctrine. The crucial consideration is that no teacher can know just where the line is drawn between "seditious" and nonseditious utterances and acts.Other provisions of § 105 also have the same defect of vagueness. Subdivision 1(a) of § 105 bars employment of any person who "by word of mouth or writing willfully and deliberately advocates, advises or teaches the doctrine" of forceful overthrow of government. This provision is plainly susceptible of sweeping and improper application. It may well prohibit the employment of one who merely advocates the doctrine in the abstract, without any attempt to indoctrinate others or incite Page 385 U. S. 600 others to action in furtherance of unlawful aims. [Footnote 7] See Herndon v. Lowry, 301 U. S. 242; Yates v. United States, 354 U. S. 298; Noto v. United States, 367 U. S. 290; Scales v. United States, 367 U. S. 203. And in prohibiting "advising" the "doctrine" of unlawful overthrow, does the statute prohibit mere "advising" of the existence of the doctrine, or advising another to support the doctrine? Since "advocacy" of the doctrine of forceful overthrow is separately prohibited, need the person "teaching" or "advising" this doctrine himself "advocate" it? Does the teacher who informs his class about the precepts of Marxism or the Declaration of Independence violate this prohibition?Similar uncertainty arises as to the application of subdivision 1(b) of § 105. That subsection requires the disqualification of an employee involved with the distribution of written material "containing or advocating, advising or teaching the doctrine" of forceful overthrow, and who himself "advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein." Here again, mere advocacy of abstract doctrine is apparently included. [Footnote 8] And does Page 385 U. S. 601 the prohibition of distribution of matter "containing" the doctrine bar histories of the evolution of Marxist doctrine or tracing the background of the French, American, or Russian revolutions? The additional requirement, that the person participating in distribution of the material be one who "advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine" of forceful overthrow, does not alleviate the uncertainty in the scope of the section, but exacerbates it. Like the language of § 105, subd. 1(a), this language may reasonably be construed to cover mere expression of belief. For example, does the university librarian who recommends the reading of such materials thereby "advocate . . . the . . . propriety of adopting the doctrine contained therein"?We do not have the benefit of a judicial gloss by the New York courts enlightening us as to the scope of this complicated plan. [Footnote 9] In light of the intricate administrative machinery for its enforcement, this is not surprising. The very intricacy of the plan and the uncertainty as to the scope of its proscriptions make it a highly efficient in terrorem mechanism. It would be a bold teacher who would not stay as far as possible from utterances or acts which might jeopardize his living by enmeshing him in this intricate machinery. The uncertainty as to the utterances and acts proscribed increases that caution in "those who believe the written law means what it says." Baggett v. Bullitt, supra, at 377 U. S. 374. The result must be to stifle "that free play of the spirit which all teachers ought especially to cultivate and practice. . . ." [Footnote 10] That probability is enhanced by the provisions requiring an Page 385 U. S. 602 annual review of every teacher to determine whether any utterance or act of his, inside the classroom or out, came within the sanctions of the laws. For a memorandum warns employees that, under the statutes, "subversive" activities may take the form of "[t]he writing of articles, the distribution of pamphlets, the endorsement of speeches made or articles written or acts performed by others," and reminds them"that it is a primary duty of the school authorities in each school district to take positive action to eliminate from the school system any teacher in whose case there is evidence that he is guilty of subversive activity. School authorities are under obligation to proceed immediately and conclusively in every such case."There can be no doubt of the legitimacy of New York's interest in protecting its education system from subversion. But"even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488. The principle is not inapplicable because the legislation is aimed at keeping subversives out of the teaching ranks. In De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365, the Court said:"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. "Page 385 U. S. 603Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, supra at 364 U. S. 487. The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." United States v. Associated Press, 52 F. Supp. 362, 372. In Sweezy v. New Hampshire, 354 U. S. 234, 354 U. S. 250, we said:"The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."We emphasize once again that "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms," N.A.A.C.P. v. Button, Page 385 U. S. 604 371 U. S. 415, 371 U. S. 438;"[f]or standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity."Id. at 371 U. S. 432-433. New York's complicated and intricate scheme plainly violates that standard. When one must guess what conduct or utterance may lose him his position, one necessarily will "steer far wider of the unlawful zone. . . ." Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. For "[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions." N.A.A.C.P. v. Button, supra, at 371 U. S. 433. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. See Stromberg v. California, 283 U. S. 359, 283 U. S. 369; Cramp v. Board of Public Instruction, 368 U. S. 278; Baggett v. Bullitt, supra.The regulatory maze created by New York is wholly lacking in "terms susceptible of objective measurement." Cramp v. Board of Public Instruction, supra, at 368 U. S. 286. It has the quality of "extraordinary ambiguity" found to be fatal to the oaths considered in Cramp and Baggett v. Bullitt. "[M]en of common intelligence must necessarily guess at its meaning and differ as to its application. . . ." Baggett v. Bullitt, supra, at 377 U. S. 367. Vagueness of wording is aggravated by prolixity and profusion of statutes, regulations, and administrative machinery, and by manifold cross-references to interrelated enactments and rules.We therefore hold that § 3021 of the Education Law and subdivisions 1(a), 1(b) and 3 of § 105 of the Civil Service Law, as implemented by the machinery created pursuant to § 3022 of the Education Law, are unconstitutional. Page 385 U. S. 605IVAppellants have also challenged the constitutionality of the discrete provisions of subdivision 1(c) of § 105 and subdivision 2 of the Feinberg Law, which make Communist Party membership, as such, prima facie evidence of disqualification. The provision was added to subdivision 1(c) of § 105 in 1958 after the Board of Regents, following notice and hearing, listed the Communist Party of the United States and the Communist Party of the State of New York as "subversive" organizations. Subdivision 2 of the Feinberg Law was, however, before the Court in Adler, and its constitutionality was sustained. But constitutional doctrine which has emerged since that decision has rejected its major premise. That premise was that public employment, including academic employment, may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. Teachers, the Court said in Adler,"may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere."342 U.S. at 342 U. S. 492. The Court also stated that a teacher denied employment because of membership in a listed organization"is not thereby denied the right of free speech and assembly. His freedom of choice between membership in the organization and employment in the school system might be limited, but not his freedom of speech or assembly, except in the remote sense that limitation is inherent in every choice."Id. at 342 U. S. 493.However, the Court of Appeals for the Second Circuit correctly said in an earlier stage of this case,". . . the theory that public employment which may be denied altogether may be subjected to any conditions, regardless Page 385 U. S. 606 of how unreasonable, has been uniformly rejected."Keyishian v. Board of Regents, 345 F.2d 236, 239. Indeed, that theory was expressly rejected in a series of decisions following Adler. See Wieman v. Updegraff, 344 U. S. 183; Slochower v. Board of Education, 350 U. S. 551; Cramp v. Board of Public Instruction, supra; Baggett v. Bullitt, supra; Shelton v. Tucker, supra; Speiser v. Randall, supra; see also Schware v. Board of Bar Examiners, 353 U. S. 232; Torcaso v. Watkins, 367 U. S. 488. In Sherbert v. Verner, 374 U. S. 398, 374 U. S. 404, we said:"It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."We proceed then to the question of the validity of the provisions of subdivision 1(c) of § 105 and subdivision 2 of § 3022, barring employment to members of listed organizations. Here again, constitutional doctrine has developed since Adler. Mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for exclusion from such positions as those held by appellants. In Elfbrandt v. Russell, 384 U. S. 11, we said,"Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees."Id. at 384 U. S. 17. We there struck down a statutorily required oath binding the state employee not to become a member of the Communist Party with knowledge of its unlawful purpose, on threat of discharge and perjury prosecution if the oath were violated. We found that"[a]ny lingering doubt that proscription of mere knowing membership, without any showing of 'specific intent,' would run afoul of the Constitution was set at rest by our decision in Aptheker v. Secretary of State, 378 U. S. 500."Elfbrandt v. Russell, supra, at 384 U. S. 16. In Aptheker, we held that Party membership, without knowledge Page 385 U. S. 607 of the Party's unlawful purposes and specific intent to further its unlawful aims, could not constitutionally warrant deprivation of the right to travel abroad. As we said in Schneiderman v. United States, 320 U. S. 118, 320 U. S. 136,"[U]nder our traditions, beliefs are personal, and not a matter of mere association, and . . . men, in adhering to a political party or other organization . . . , do not subscribe unqualifiedly to all of its platforms or asserted principles.""A law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association,' which has no place here."Elfbrandt, supra, at 384 U. S. 19. Thus, mere Party membership, even with knowledge of the Party's unlawful goals, cannot suffice to justify criminal punishment, see Scales v. United States, 367 U. S. 203; Noto v. United States, 367 U. S. 290; Yates v. United States, 354 U. S. 298; [Footnote 11] nor may it warrant a finding of moral unfitness justifying disbarment. Schware v. Board of Bar Examiners, 353 U. S. 232.These limitations clearly apply to a provision, like § 105, subd. 1(c), which blankets all state employees, regardless of the "sensitivity" of their positions. But even the Feinberg Law provision, applicable primarily to activities of teachers, who have captive audiences of young minds, are subject to these limitations in favor of freedom of expression and association; the stifling effect on the academic mind from curtailing freedom of association in such manner is manifest, and has been documented in recent studies. [Footnote 12] Elfbrandt and Aptheker state the Page 385 U. S. 608 governing standard: legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations.Measured against this standard, both Civil Service Law § 106, subd. 1(c), and Education Law § 3022, subd. 2, sweep overbroadly into association which may not be proscribed. The presumption of disqualification arising from proof of mere membership may be rebutted, but only by (a) a denial of membership, (b) a denial that the organization advocates the overthrow of government by force, or (c) a denial that the teacher has knowledge of such advocacy. Lederman v. Board of Education, 276 App.Div. 527 96 N.Y.S.2d 466, aff'd, 301 N.Y. 476, 95 N.E.2d 806. [Footnote 13] Thus, proof of nonactive membership or a showing of the absence of intent to further unlawful aims will not rebut the presumption and defeat dismissal. This is emphasized in official administrative interpretations. For example, it is said in a letter addressed to prospective appointees by the President of the State University,"You will note that . . . both the Law and regulations are very specifically directed toward the elimination and nonappointment of 'Communists' from or to our teaching ranks. . . ."The Feinberg Certificate was even more explicit:"Anyone who is a Page 385 U. S. 609 member of the Communist Party or of any organization that advocates the violent overthrow of the Government of the United States or of the State of New York or any political subdivision thereof cannot be employed by the State University."(Emphasis supplied.) This official administrative interpretation is supported by the legislative preamble to the Feinberg Law, § 1, in which the legislature concludes as a result of its findings that"it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist party and its affiliated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced."(Emphasis supplied.)Thus, 105, subd. 1(c), and § 3022, subd. 2, suffer from impermissible "overbreadth." Elfbrandt v. Russell, supra, at 384 U. S. 19; Aptheker v. Secretary of State, supra; N.A.A.C.P. v. Button, supra; Saia v. New York, 334 U. S. 558; Schneider v. State, 308 U. S. 147; Lovell v. Griffin, 303 U. S. 444; cf. Hague v. C.I.O., 307 U. S. 496, 307 U. S. 515-516; see generally Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 486. They seek to bar employment both for association which legitimately may be proscribed and for association which may not be proscribed consistently with First Amendment rights. Where statutes have an overbroad sweep, just as where they are vague, "the hazard of loss or substantial impairment of those precious rights may be critical," Dombrowski v. Pfister, supra, at 380 U. S. 486, since those covered by the statute are bound to limit their behavior to that which is unquestionably safe. As we said in Shelton v. Tucker, supra, at 364 U. S. 488, "The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose."We therefore hold that Civil Service Law § 105, subd. 1(c), and Education Law § 3022, subd. 2, are invalid insofar as they proscribe mere knowing membership, Page 385 U. S. 610 without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York.The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtKeyishian v. Board of Regents, 385 U.S. 589 (1967)Keyishian v. Board of RegentsNo. 105Argued November 17, 1966Decided January 23, 1967385 U.S. 589SyllabusAppellants, faculty members of the State University of New York and a non-faculty employee, brought this action for declaratory and injunctive relief, claiming that New York's teacher loyalty laws and regulations are unconstitutional. Their continued employment had been terminated or was threatened when each appellant faculty member refused to comply with a requirement of the University trustees that he certify that he was not a Communist and that, if he had ever been one, he had so advised the university president, and the non-faculty employee refused to state under oath whether he had advocated or been a member of a group which advocated forceful overthrow of the government. Under § 3021 of New York's Education Law, "treasonable or seditious" utterances or acts are grounds for dismissal from the public school system, as well as under § 105, subd. 3, of the Civil Service Law. Other provisions of § 105 of the Civil Service Law disqualify from the civil service or employment in the educational system any person advocating or involved with the distribution of written material which advocates the forceful overthrow of the government. Section 3021 does not define "treasonable or seditious." Section 105, subd. 3, provides that "treasonable word or act" shall mean "treason" as defined in the Penal Law, and "seditious word or act" shall mean "criminal anarchy" as therein defined. Section 3022 (the Feinberg Law) of the Education Law requires the State Board of Regents to issue regulations for the disqualification or removal on loyalty grounds of faculty or other personnel in the state educational system, to make a list of "subversive" organizations, and to provide that membership therein constitutes prima facie evidence of disqualification for employment. The Board listed the National and State Communist Parties as "subversive organizations" under the law, but, shortly before the trial of this case, the university trustees' certificate requirement was rescinded and it was announced that no person would be ineligible for employment "solely" because he refused to sign the Page 385 U. S. 590 certificate, and that §§ 3021 and 3022 of the Education Law and § 105 of the Civil Service Law constituted part of the employment contract. A three-judge District Court sustained the constitutionality of these provisions against appellants' challenges of vagueness and overbreadth and dismissed the complaint.Held:1. Adler v. Board of Education, 342 U. S. 485, in which this Court upheld some aspects of the New York teacher loyalty plan before its extension to state institutions of higher learning, is not controlling, the vagueness issue presented here involving § 3021 and § 105 not having been decided in Adler, and the validity of the subversive organization membership provision of § 3022 having been upheld for reasons subsequently rejected by this Court. Pp. 385 U. S. 593-595.2. The rescission of the certificate requirement does not moot this case, as the substance of the statutory and regulatory complex challenged by appellants remains. P. 385 U. S. 596.3. Section 3021 of the Education Law and § 105, subds. 1(a), 1(b), and 3, of the Civil Service Law, as implemented by the machinery created pursuant to § 3022 of the Education Law, are unconstitutionally vague, since no teacher can know from § 3021 of the Education Law and § 105, subd. 3, of the Civil Service Law what constitutes the boundary between "seditious" and nonseditious utterances and acts, and the other provisions may well prohibit the employment of one who advocates doctrine abstractly, without any attempt to incite others to action, and may be construed to cover mere expression of belief. Pp. 385 U. S. 597-604.(a) These provisions, which have not been interpreted by the New York courts, can have a stifling effect on the "free play of the spirit which all teachers ought especially to cultivate and practice" (Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 195 (concurring opinion)). Pp. 385 U. S. 601-602.(b) Academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. P. 385 U. S. 603.(c) The prolixity and profusion of statutes, regulations, and administrative machinery, and manifold cross-references to interrelated enactments and rules aggravate the problem of vagueness of wording. P. 385 U.S. 604.4. The provisions of the Civil Service Law (§ 105, subd. 1(c)) and the Education Law (§ 3022, subd. 2) which make Communist Party membership, as such, prima facie evidence of disqualification Page 385 U. S. 591 for employment in the public school system are "overbroad," and therefore unconstitutional. Pp. 385 U. S. 605-610.(a) Constitutional doctrine after this Court's upholding of § 3022, subd. 2, in Adler has rejected its major premise that public employment may be conditioned upon the surrender of constitutional rights which could not be abridged by direct government action. P. 385 U. S. 605.(b) Mere knowing membership, without a specific intent to further the unlawful aims of an organization, is not a constitutionally adequate basis for imposing sanctions. Pp. 385 U. S. 606-610.255 F. Supp. 981, reversed and remanded.

1982_82-118

JUSTICE BLACKMUN delivered the opinion of the Court.The question that confronts us in this case is whether the filing of a class action tolls the applicable statute of limitations, and thus permits all members of the putative class to file individual actions in the event that class certification is Page 462 U. S. 347 denied, provided, of course, that those actions are instituted within the time that remains on the limitations period.IRespondent Theodore Parker, a Negro male, was discharged from his employment with petitioner Crown, Cork & Seal Company, Inc., in July, 1977. In October of that year, he filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been harassed and then discharged on account of his race. On November 9, 1978, the EEOC issued a Determination Letter finding no reasonable cause to believe respondent's discrimination charge was true, and, pursuant to § 706(f) of the Civil Rights Act of 1964 (Act), 78 Stat. 260, as amended, 42 U.S.C. § 2000e-5(f), sent respondent a Notice of Right to Sue. App. 5A, 7A.Two months earlier, while respondent's charge was pending before the EEOC, two other Negro males formerly employed by petitioner filed a class action in the United States District Court for the District of Maryland. Pendleton v. Crown, Cork & Seal Co., Civ. No. M-78-1734. The complaint in that action alleged that petitioner had discriminated against its Negro employees with respect to hiring, discharges, job assignments, promotions, disciplinary actions, and other terms and conditions of employment, in violation of Title VII of the Act, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. The named plaintiffs purported to represent a class of"black persons who have been, continue to be and who in the future will be denied equal employment opportunities by defendant on the grounds of race or color."App. to Brief for Petitioner 2a. It is undisputed that respondent was a member of the asserted class.In May, 1979, the named plaintiffs in Pendleton moved for class certification. Nearly a year and a half later, on September 4, 1980, the District Court denied that motion. App. to Brief for Petitioner 7a. The court ruled that the named plaintiffs' claims were not typical of those of the class, that Page 462 U. S. 348 the named plaintiffs would not be adequate representatives, and that the class was not so numerous as to make joinder impracticable. Thereafter, Pendleton proceeded as an individual action on behalf of its named plaintiffs. [Footnote 1]On October 27, 1980, within 90 days after the denial of class certification but almost two years after receiving his Notice of Right to Sue, respondent filed the present Title VII action in the United States District Court for the District of Maryland, alleging that his discharge was racially motivated. Respondent moved to consolidate his action with the pending Pendleton case, but petitioner opposed the motion on the ground that the two cases were at substantially different stages of preparation. The motion to consolidate was denied. The District Court then granted summary judgment for petitioner, ruling that respondent had failed to file his action within 90 days of receiving his Notice of Right to Sue, as required by the Act's § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). 514 F. Supp. 122 (1981).The United States Court of Appeals for the Fourth Circuit reversed. 677 F.2d 391 (1982). Relying on American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974), the Court of Appeals held that the filing of the Pendleton class action had tolled Title VII's statute of limitations for all members of the putative class. Because the Pendleton suit was instituted before respondent received his Notice, and because respondent had filed his action within 90 days after the denial of class certification, the Court of Appeals concluded that it was timely.Two other Courts of Appeals have held that the tolling rule of American Pipe applies only to putative class members who seek to intervene after denial of class certification, and not Page 462 U. S. 349 to those who, like respondent, file individual actions. [Footnote 2] We granted certiorari to resolve the conflict. 459 U.S. 986 (1982).IIAAmerican Pipe was a federal antitrust suit brought by the State of Utah on behalf of itself and a class of other public bodies and agencies. The suit was filed with only 11 days left to run on the applicable statute of limitations. The District Court eventually ruled that the suit could not proceed as a class action, and eight days after this ruling, a number of putative class members moved to intervene. This Court ruled that the motions to intervene were not time-barred. The Court reasoned that, unless the filing of a class action tolled the statute of limitations, potential class members would be induced to file motions to intervene or to join in order to protect themselves against the possibility that certification would be denied. 414 U.S. at 414 U. S. 553. The principal purposes of the class action procedure -- promotion of efficiency and economy of litigation -- would thereby be frustrated. Ibid. To protect the policies behind the class action procedure, the Court held that"the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action."Id. at 414 U. S. 554.Petitioner asserts that the rule of American Pipe was limited to intervenors, and does not toll the statute of limitations for class members who file actions of their own. [Footnote 3] Petitioner Page 462 U. S. 350 relies on the Court's statement in American Pipe that"the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status."Id. at 414 U. S. 553 (emphasis added). While American Pipe concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the statute of limitations "as to all asserted members of the class," id. at 414 U. S. 554, not just as to intervenors.The American Pipe Court recognized that, unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights. Only by intervening or taking other action prior to the running of the statute of limitations would they be able to ensure that their rights would not be lost in the event that class certification was denied. Much the same inefficiencies would ensue if American Pipe's tolling rule were limited to permitting putative class members to intervene after the denial of class certification. There are many reasons why a class member, after the denial of class certification, might prefer to bring an individual suit, rather than intervene. The forum in which the class action is pending might be an inconvenient one, for example, or the class member might not wish to share control over the litigation with other plaintiffs once the economies of a class action were no longer available. Moreover, permission to intervene might be refused for reasons wholly unrelated to the merits of the claim. [Footnote 4] A putative class member who fears that class Page 462 U. S. 351 certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations. The result would be a needless multiplicity of actions -- precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.BFailure to apply American Pipe to class members filing separate actions also would be inconsistent with the Court's reliance on American Pipe in Eisen v. Carlisle & Jacquelin, 417 U. S. 156 (1974). In Eisen, the Court held that Rule 23(c)(2) required individual notice to absent class members, so that each class member could decide whether to "opt out" of the class, and thereby preserve his right to pursue his own lawsuit. 417 U.S. at 417 U. S. 176. The named plaintiff in Eisen argued that such notice would be fruitless, because the statute of limitations had long since run on the claims of absent class members. This argument, said the Court, was"disposed of by our recent decision in American Pipe . . . which established that commencement of a class action tolls the applicable statute of limitations as to all members of the class."Id. at 417 U. S. 176, n. 13.If American Pipe's tolling rule applies only to intervenors, this reference to American Pipe is misplaced, and makes no sense. Eisen's notice requirement was intended to inform the class member that he could "preserve his opportunity to press his claim separately" by opting out of the class. 417 U.S. at 417 U. S. 176 (emphasis added). But a class member would be unable to "press his claim separately" if the limitations period had expired while the class action was pending. The Eisen Court recognized this difficulty, but concluded that the right to opt out and press a separate claim remained meaningful Page 462 U. S. 352 because the filing of the class action tolled the statute of limitations under the rule of American Pipe. 417 U.S. at 417 U. S. 176, n. 13. If American Pipe were limited to intervenors, it would not serve the purpose assigned to it by Eisen; no class member would opt out simply to intervene. Thus, the Eisen Court necessarily read American Pipe as we read it today, to apply to class members who choose to file separate suits. [Footnote 5]CThe Court noted in American Pipe that a tolling rule for class actions is not inconsistent with the purposes served by statutes of limitations. 414 U.S. at 414 U. S. 554. Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, see Delaware State College v. Ricks, 449 U. S. 250, 449 U. S. 256-257 (1980); American Pipe, 414 U.S. at 414 U. S. 561 (concurring opinion); Burnett v. New York Central R. Co., 380 U. S. 424, 380 U. S. 428 (1965), but these ends are met when a class action is commenced. Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class members Page 462 U. S. 353 to rely on the named plaintiffs to press their claims. And a class complaint"notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment."American Pipe, 414 U.S. at 414 U. S. 555; see United Airlines, Inc. v. McDonald, 432 U. S. 385, 432 U. S. 395 (1977). The defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification.Restricting the rule of American Pipe to intervenors might reduce the number of individual lawsuits filed against a particular defendant but, as discussed above, this decrease in litigation would be counterbalanced by an increase in protective filings in all class actions. Moreover, although a defendant may prefer not to defend against multiple actions in multiple forums once a class has been decertified, this is not an interest that statutes of limitations are designed to protect. Cf. Goldlawr, Inc. v. Heiman, 369 U. S. 463, 369 U. S. 467 (1962). Other avenues exist by which the burdens of multiple lawsuits may be avoided; the defendant may seek consolidation in appropriate cases, see Fed.Rule Civ.Proc. 42(a); 28 U.S.C. § 1404 (change of venue), and multidistrict proceedings may be available if suits have been brought in different jurisdictions, see 28 U.S.C. § 1407. [Footnote 6]IIIWe conclude, as did the Court in American Pipe, that"the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue Page 462 U. S. 354 as a class action."414 U.S. at 414 U. S. 554. Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.In this case, respondent clearly would have been a party in Pendleton if that suit had been permitted to continue as a class action. The filing of the Pendleton action thus tolled the statute of limitations for respondent and other members of the Pendleton class. Since respondent did not receive his Notice of Right to Sue until after the Pendleton action was filed, he retained a full 90 days in which to bring suit after class certification was denied. Respondent's suit was thus timely filed.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtCrown Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983)Crown Cork & Seal Co., Inc. v. ParkerNo. 82-118Argued April 18, 1983Decided June 13, 1983462 U.S. 345SyllabusRespondent, a Negro male, after being discharged by petitioner employer in 1977, filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which, on November 9, 1978, upon finding no reasonable cause to believe the charge was true, sent respondent a Notice of Right to Sue pursuant to § 706(f) of Title VII of the Civil Rights Act of 1964. Previously, while respondent's charge was still pending before the EEOC, two other Negro males formerly employed by petitioner had filed a class action against petitioner in Federal District Court, alleging employment discrimination and purporting to represent a class of which respondent was a member. Subsequently, on September 4, 1980, the District Court denied the named plaintiffs' motion for class certification, and the action then proceeded as an individual action. Within 90 days thereafter, but almost two years after receiving his Notice of Right to Sue, respondent filed an action under Title VII against petitioner in Federal District Court, alleging that his discharge was racially motivated. The District Court granted summary judgment for petitioner on the ground that respondent had failed to file his action within 90 days of receiving his Notice of Right to Sue as required by § 706(f)(1). The Court of Appeals reversed.Held: The filing of the class action tolled the statute of limitations for respondent and other members of the putative class. Since respondent did not receive his Notice of Right to Sue until after the class action was filed, he retained a full 90 days in which to bring suit after class certification was denied, and hence his suit was timely filed. Pp. 462 U. S. 349-354.(a) While American Pipe & Constr. Co. v. Utah, 414 U. S. 538, concerned only intervenors in a class action, the holding of that case -- that the filing of a class action tolls the running of the applicable statute of limitations for all asserted members of the class -- is to be read as not being limited to intervenors, but as extending to class members filing separate actions. Otherwise, class members would be led to file individual actions prior to denial of class certification in order to preserve their rights. The result would be a needless multiplicity of actions -- precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid. Pp. 462 U. S. 349-351.(b) Failure to apply American Pipe to class members filing separate actions would also be inconsistent with this Court's reliance on American Page 462 U. S. 346 Pipe in Eisen v. Carlisle & Jacquelin, 417 U. S. 156, where it was held that Rule 23(c)(2) required individual notice to class members so that each of them could decide whether to "opt out" of the class and thereby preserve his right to pursue his own lawsuit. A class member would be unable to pursue his own lawsuit if the limitations period had expired while the class action was pending. Pp. 462 U. S. 351-352.(c) A tolling rule for class actions is not inconsistent with the purposes served by statutes of limitations of putting defendants on notice of adverse claims and of preventing plaintiffs from sleeping on their rights. These ends are met when a class action is filed. Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights. And a class complaint notifies the defendants not only of the claims against them, but also of the number and generic identities of the potential plaintiffs. Pp. 462 U. S. 352-353.(d) Once the commencement of a class action suspends the applicable statute of limitations as to all putative members of the class, it remains suspended until class certification is denied. Pp. 462 U. S. 353-354.677 F.2d 391, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which REHNQUIST and O'CONNOR, JJ., joined, post, p. 462 U. S. 354.

1978_77-1722

MR. JUSTICE POWELL delivered the opinion of the Court.Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2520, permits courts to authorize electronic surveillance [Footnote 1] by Government officers in specified situations. We took this case by writ of Page 441 U. S. 241 certiorari to resolve two questions concerning the implementation of Title III surveillance orders. 439 U. S. 17. First, may courts authorize electronic surveillance that requires covert entry [Footnote 2] into private premises for installation of the necessary equipment? Second, must authorization for such surveillance include a specific statement by the court that it approves of the covert entry? [Footnote 3]IOn March 14, 1973, Justice Department officials applied to the United States District Court for the District of New Jersey, seeking authorization under 18 U.S.C. § 2518 to intercept telephone conversations on two telephones in petitioner's business office. After examining the affidavits submitted in support of the Government's request, the District Court authorized the wiretap for a period of 20 days or until the purpose of the interception was achieved, whichever came first. The court found probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce in violation of 18 U.S.C. § 659. Moreover, the court found reason to believe that petitioner's business telephones were being used to further this conspiracy, and that means of investigating the conspiracy Page 441 U. S. 242 other than electronic surveillance would be unlikely to succeed, and would be dangerous. The wiretap order carefully enumerated the telephones to be affected and the types of conversations to be intercepted. Finally, the court ordered the officials in charge of the interceptions to take all reasonable precautions "to minimize the interception of communications not otherwise subject to interception," and required the officials to make periodic progress reports.At the end of the 20-day period covered by the March 14 court order, the Government requested an extension of the wiretap authorization. In addition, the Government for the first time asked the court to allow it to intercept all oral communications taking place in petitioner's office, including those not involving the telephone. On April 5, 1973, the court granted the Government's second request. Its order concerning the wiretap of petitioner's telephones closely tracked the March 14 order. Finding reasonable cause to believe that petitioner's office was being used by petitioner and others in connection with the alleged conspiracy, the court also authorized, for a maximum period of 20 days, the interception of all oral communications concerning the conspiracy at"the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey."The order included protective provisions similar to those in the March 14 wiretapping order. [Footnote 4] The electronic surveillance order of April 5 was extended by court order on April 27, 1973. Page 441 U. S. 243On November 6, 1975, petitioner was indicted in a five-count indictment charging that he had been involved in a Page 441 U. S. 244 conspiracy to steal an interstate shipment of fabric. [Footnote 5] At trial, the Government introduced evidence showing that petitioner had been approached in March, 1973, and asked to store in his New Jersey warehouse "a load of merchandise." Although petitioner declined the request, he directed the requesting party to Higgins, an associate, with whom he agreed to share the $1,500 storage fee that was offered. The merchandise stored under this contract proved to be a tractor-trailer full of fabric worth $250,000 that three men stole on April 3, 1973, and transported to Higgins' warehouse. Two days after the theft, FBI agents arrested Higgins and the individuals involved in the robbery.The Government introduced into evidence at petitioner's trial various conversations intercepted pursuant to the court Page 441 U. S. 245 orders of March 14, April 5, and April 27, 1973. Intercepted telephone conversations showed that petitioner had arranged for the storage at Higgins' warehouse and had helped negotiate the terms for that storage. One telephone conversation that took place after Higgins' arrest made clear that petitioner had given advice to others involved in the robbery to "sit tight" and not to use the telephone. Finally, the Government introduced transcripts of conversations intercepted from petitioner's office under the April 5 bugging order. In these conversations, petitioner had discussed with various participants in the robbery how best to proceed after their confederates had been arrested. The unmistakable inference to be drawn from petitioner's statements in these conversations is that he was an active participant in the scheme to steal the truckload of fabric.Before trial, petitioner moved to suppress evidence obtained through the interception of conversations by means of the device installed in his office. The District Court denied the suppression motion without prejudice to its being renewed following trial. After petitioner was convicted on two counts, [Footnote 6] he renewed his motion and the court held an evidentiary hearing concerning the method by which the electronic device had been installed. At this hearing, it was shown that, although the April 5 court order did not explicitly authorize entry of petitioner's business, the FBI agents assigned the task of implementing the order had entered petitioner's office secretly at midnight on April 5 and had spent three hours in the building installing an electronic bug in the ceiling. All electronic surveillance of petitioner ended on May 16, 1973, at which time the agents reentered petitioner's office and removed the bug.In denying a second time petitioner's motion to suppress the evidence obtained from the bug, the trial court ruled Page 441 U. S. 246 that, under Title III, a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. 426 F. Supp. 862 (1977). Indeed, in the court's view,"implicit in the court's order [authorizing electronic surveillance] is concomitant authorization for agents to covertly enter the premises in question and install the necessary equipment."Id. at 866. As the court concluded that the FBI agents who had installed the electronic device were executing a lawful warrant issued by the court, the sole question was whether the method they chose for execution was reasonable. Under the circumstances, the court found the covert entry of petitioner's office to have been "the safest and most successful method of accomplishing the installation." Ibid. Indeed, noting that petitioner himself had indicated that such a device could only have been installed through such an entry, the court observed that"[i]n most cases, the only form of installing such devices is through breaking and entering. The nature of the act is such that entry must be surreptitious and must not arouse suspicion, and the installation must be done without the knowledge of the residents or occupants."Ibid.The Court of Appeals for the Third Circuit affirmed petitioner's conviction. 575 F.2d 1344 (1978). Agreeing with the District Court, it rejected petitioner's contention that separate court authorization was necessary for the covert entry of petitioner's office, although it noted that"the more prudent or preferable approach for government agents would be to include a statement regarding the need of a surreptitious entry in a request for the interception of oral communications when a break-in is contemplated."Id. at 1346-1347.IIPetitioner first contends that the Fourth Amendment prohibits covert entry of private premises in all cases, irrespective of the reasonableness of the entry or the approval of a court. Page 441 U. S. 247 He contends that Title III is unconstitutional insofar as it enables courts to authorize covert entries for the installation of electronic bugging devices.In several cases, this Court has implied that, in some circumstances, covert entry to install electronic bugging devices would be constitutionally acceptable if done pursuant to a search warrant. Thus, for example, in Irvine v. California, 347 U. S. 128 (1954), the plurality stated that, in conducting electronic surveillance, state police officers had"flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government."Id. at 347 U. S. 132. It emphasized that the bugging equipment was installed through a covert entry of the defendant's home "without search warrant or other process." Ibid. (emphasis added). Similarly, in Silverman v. United States, 365 U. S. 505, 365 U. S. 511-512 (1961), it was noted that"[t]his 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."(Emphasis added.) Implicit in decisions such as Silverman and Irvine has been the Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant.Moreover, we find no basis for a constitutional rule proscribing all covert entries. It is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed. See, e.g., Payne v. United States, 508 F.2d 1391, 1394 (CA5 1975); cf. Ker v. California, 374 U. S. 23, 374 U. S. 28, 374 U. S. 38 (1963); 18 U.S.C. § 3109. Petitioner nonetheless argues that covert entries are unconstitutional for their lack of notice. This argument is frivolous, as was indicated in Katz v. United States, 389 U. S. 347, 389 U. S. 355 n. 16 (1967), where the Court stated that"officers need not Page 441 U. S. 248 announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence. [Footnote 7]"In United States v. Donovan, 429 U. S. 413, 429 U. S. 429 n.19 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that, once the surveillance operation is completed, the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518(8)(d). There is no reason why the same notice is not equally sufficient with respect to electronic surveillances requiring covert entry. We make explicit, therefore, what has long been implicit in our decisions dealing with this subject: the Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. [Footnote 8] Page 441 U. S. 249IIIPetitioner's second contention is that Congress has not given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment, even if constitutionally it could have done so. Petitioner emphasizes that, although Title III sets forth with meticulous care the circumstances in which electronic surveillance is permitted, there is no comparable indication in the statute that covert entry ever may be ordered. Accord, United States v. Santoro, 583 F.2d 453, 457-458 (CA9 1978).Title III does not refer explicitly to covert entry. The language, structure, and history of the statute, however, demonstrate that Congress meant to authorize courts -- in certain specified circumstances -- to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials. See 18 U.S.C. §§ 2511, 2515, and 2518; United States v. United States District Court, 407 U. S. 297, 407 U. S. 301-302 (1972). Although Congress was fully aware of the distinction between bugging and wiretapping, see S.Rep. No. 1097, 90th Cong., 2d Sess., 68 (1968), Title III by its terms deals with each form of surveillance in essentially the same manner. See 18 U.S.C. §§ 2510(1) and (2); n 1, supra. Orders authorizing interceptions of either wire or oral communications may be entered only after the court has made specific determinations concerning the likelihood that the interception will disclose evidence of criminal conduct. See 18 U.S.C. § 2518(3). Moreover, with respect to both wiretapping and bugging, an authorizing court must Page 441 U. S. 250 specify the exact scope of the surveillance undertaken, enumerating the parties whose communications are to be overheard (if they are known), the place to be monitored, and the agency that will do the monitoring. See 18 U.S.C. § 2518(4).The plain effect of the detailed restrictions of § 2518 is to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed. [Footnote 9] Once this need has been demonstrated in accord with the requirements of § 2518, the courts have broad authority to "approv[e] interception of wire or oral communications," 18 U.S.C. §§ 2516(1), (2), subject, of course, to constitutional limitations. See 441 U. S. supra. [Footnote 10] Nowhere in Title III is there any indication that the authority of courts under § 2518 is to be limited to approving those methods of interception that do not require covert entry for installation of the intercepting equipment. [Footnote 11] Page 441 U. S. 251The legislative history of Title III underscores Congress' understanding that courts would authorize electronic surveillance in situations where covert entry of private premises was necessary. Indeed, a close examination of that history reveals that Congress did not explicitly address the question of covert entries in the Act, only because it did not perceive surveillance requiring such entries to differ in any important way from that performed without entry. Testimony before subcommittees considering Title III and related bills indicated that covert entries were a necessary part of most electronic bugging operations. See, e.g., Anti-Crime Program: Hearings on H.R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967). Moreover, throughout the Senate Report on Title III, indiscriminate reference is made to the types of surveillance this Court reviewed in Berger v. New York, 388 U. S. 41 (1967), and Katz v. United States, 389 U. S. 347 (1967). See, e.g., S.Rep. No. 1097, supra, at 74-75, 97, 101-102, 105. Apparently Committee members did not find it significant that Berger involved a covert entry, whereas Katz did not. Compare Berger v. New York, supra, at 388 U. S. 45, with Katz v. United States, supra, at 389 U. S. 348. [Footnote 12]It is understandable, therefore, that, by the time Title III Page 441 U. S. 252 was discussed on the floor of Congress, those Members who referred to covert entries indicated their understanding that such entries would necessarily be a part of bugging authorized under Title III. Thus, for example, in voicing his support for Title III, Senator Tydings emphasized the difficulties attendant upon installing necessary equipment:"[S]urveillance is very difficult to use. Tape [sic] must be installed on telephones, and wires strung. Bugs are difficult to install in many places, since surreptitious entry is often impossible. Often, more than one entry is necessary to adjust equipment."114 Cong.Rec. 1299 (1968) (emphasis added). In the face of this record, one simply cannot assume that Congress, aware that most bugging requires covert entry, nonetheless wished to except surveillance requiring such entries from the broad authorization of Title III, and that it resolved to do so by remaining silent on the subject. On the contrary, the language and history of Title III convey quite a different explanation for Congress' failure to distinguish between surveillance that requires covert entry and that which does not: those considering the surveillance legislation understood that, by authorizing electronic interception of oral communications in addition to wire communications, they were necessarily authorizing surreptitious entries.Finally, Congress' purpose in enacting the statute would be largely thwarted if we were to accept petitioner's invitation to read into Title III a limitation on the courts' authority under § 2518. Congress permitted limited electronic surveillance under Title III because it concluded that both wiretapping and bugging were necessary to enable law enforcement authorities to combat successfully certain forms of crime. [Footnote 13] Page 441 U. S. 253 Absent covert entry, however, almost all electronic bugging would be impossible. [Footnote 14] See United States v. Ford, 414 F. Supp. 879, 882 (DC 1976), aff'd, 10 U.S.App.D.C. 1, 553 F.2d 146 (1977); McNamara, The Problem of Surreptitious Entry Page 441 U. S. 254 to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am. Crim.L.Rev. 1, 3 (1977). As recently as 1976, a congressional commission established to study and evaluate the effectiveness of Title III concluded that, in most cases, electronic surveillance cannot be performed without covert entry into the premises being monitored. See U.S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Electronic Surveillance 15, 43, and n.19, 86 (1976). The same conclusion was reached by the American Bar Association committee charged with formulating standards governing use of electronic surveillance. See ABA Project on Minimum Standards for Criminal Justice, Electronic Surveillance 65 n. 175, 149 (App. Draft 1971). [Footnote 15]In sum, we conclude that Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. To read the statute otherwise would be to deny the "respect for the policy of Congress [that] must save us from imputing to it a self-defeating, if not disingenuous, purpose." Nardone v. United States, 308 U. S. 338, 341 (1939). [Footnote 16]IVPetitioner's final contention is that, if covert entries are to be authorized under Title III, the authorizing court must Page 441 U. S. 255 explicitly set forth its approval of such entries before the fact. In this case, as is customary, the court's order constituted the sole written authorization of the surveillance of petitioner's office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry violated his Fourth Amendment privacy rights. Accord, United States v. Ford, 180 U.S.App.D.C. at 25, 553 F.2d at 170; Application of United States, 563 F.2d 637, 644 (CA4 1977). [Footnote 17]The Fourth Amendment requires that search warrants be issued only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Finding these words to be "precise and clear," Stanford v. Texas, 379 U. S. 476, 379 U. S. 481 (1965), this Court has interpreted them to require only three things. First, warrants must be issued by neutral, disinterested magistrates. See, e.g., Connally v. Georgia, 429 U. S. 245, 429 U. S. 250-251 (1977) (per curiam); Shadwick v. Tampa, 407 U. S. 345, 407 U. S. 350 (1972); Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 459 460 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense. Warden v. Hayden, 387 U. S. 294, 387 U. S. 307 (1967). Finally, "warrants must particularly describe the things to be seized,'" as well as the place to be searched. Stanford v. Texas, supra, at 379 U. S. 485. Page 441 U. S. 256In the present case, the April 5 court order authorizing the interception of oral communications occurring within petitioner's office was a warrant issued in full compliance with these traditional Fourth Amendment requirements. It was based upon a neutral magistrate's independent finding of probable cause to believe that petitioner had been and was committing specifically enumerated federal crimes, that petitioner's office was being used "in connection with the commission of [these] offenses," and that bugging the office would result in the interception of "oral communications concerning these offenses." App. 6a-7a. Moreover, the exact location and dimensions of petitioner's office were set forth, see n 4, supra, and the extent of the search was restricted to the"[i]ntercept[ion of] oral communications of Larry Dalia and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia. . . ."App. 8a. [Footnote 18]Petitioner contends, nevertheless, that the April 5 order was insufficient under the Fourth Amendment for its failure to specify that it would be executed by means of a covert Page 441 U. S. 257 entry of his office. Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant [Footnote 19] -- subject, of course, to the general Fourth Amendment protection "against unreasonable searches and seizures."Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: the surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect's property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often, in executing a warrant, the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter Page 441 U. S. 258 the suspect's home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e.g. United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e.g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973).It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held -- and the Government concedes -- that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. See Zurcher v. Stanford Daily, 436 U. S. 547, 436 U. S. 559-560 (1978). [Footnote 20] More important, we would promote empty formalism were we to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: [Footnote 21] that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. See United States v. London, 424 F. Supp. 556, 560 (Md. 1976). We conclude, therefore, that the Fourth Amendment does not require that a Title III electronic surveillance order include a Page 441 U. S. 259 specific authorization to enter covertly the premises described in the order. [Footnote 22]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtDalia v. United States, 441 U.S. 238 (1979)Dalia v. United StatesNo. 77-1722Argued January 9, 10, 1979Decided April 1, 1979441 U.S. 238SyllabusPursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Court, finding probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce, granted the Government's request for authorization to intercept all oral communications taking place in petitioner's business office. Petitioner was subsequently convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. At a hearing on his motion to suppress evidence obtained under the bugging order, it was shown that, although such order did not explicitly authorize entry of petitioner's business office, FBI agents had entered the office secretly at midnight on the day of the bugging order and had spent three hours installing an electronic bug in the ceiling. Denying petitioner's motion to suppress, the District Court ruled that, under Title III, a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. Affirming petitioner's conviction, the Court of Appeals rejected his contention that separate court authorization was necessary for the covert entry of his office.Held:1. The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. Implicit in decisions such as Irvine v. California, 347 U. S. 12, and Silverman v. United States, 365 U. S. 505, has been this Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant. Petitioner's argument that covert entries are unconstitutional for their lack of notice is frivolous, as was indicated in Katz v. United States, 389 U. S. 347, 39 U. S. 355 n. 16, where this Court stated that"officers need not announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence."Pp. 441 U. S. 246-248.2. Congress has given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment. Although Title III does not refer explicitly to covert entry, the language, Page 441 U. S. 239 structure, purpose, and history of the statute demonstrate that Congress meant to authorize courts -- in certain specified circumstances -- to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. Pp. 441 U. S. 249-254.3. The Fourth Amendment does not require that a Title III electronic surveillance order include a specific authorization to enter covertly the premises described in the order. Pp. 441 U. S. 254-259.(a) The Warrant Clause of the Fourth Amendment requires only that warrants be issued by neutral, disinterested magistrates, that those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense, and that warrants must particularly describe the things to be seized, as well as the place to be searched. Here, the bugging order was a warrant issued in full compliance with these traditional Fourth Amendment requirements. Pp. 441 U. S. 255-256.(b) Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to these requirements, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant -- subject to the general Fourth Amendment protection "against unreasonable searches and seizures." Pp. 441 U. S. 256-257.(c) An interpretation of the Warrant Clause so as to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers, is unnecessary, since the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. More important, it would promote empty formalism were this Court to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. Pp. 441 U. S. 257-25.575 F.2d 1344, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined and in Parts I and II Page 441 U. S. 240 of which BRENNAN and STEWART, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined except as to Part I, post, p. 441 U. S. 259. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 441 U. S. 262.

1970_7

MR. JUSTICE BLACK delivered the opinion of the Court.The appellants in these two cases were all indicted in a New York state court on charges of criminal anarchy, in violation of §§ 160, 161, 163, and 580(1) of the New York Penal Law. [Footnote 1] They later filed these actions in federal district court, [Footnote 2] alleging (1) that the anarchy statute was void for vagueness in violation of due process, and an abridgment of free speech, press, and assembly, in violation of the First and Fourteenth Amendments; (2) that the anarchy statute had been preempted by federal law; and (3) that the New York laws under which the grand jury had been drawn violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment because they disqualified from jury service any member of the community who did not own real or personal property of the value of at least $250, and because Page 401 U. S. 68 the laws furnished no definite standard for determining how jurors were to be selected. Appellants charged that trial of these indictments in state courts would harass them, and cause them to suffer irreparable damages, and they therefore prayed that the state courts should be enjoined from further proceedings. In the alternative, appellants asked the District Court to enter a declaratory judgment to the effect that the challenged state laws were unconstitutional and void on the same grounds. The three-judge court, convened pursuant to 28 U.S.C. § 2284, held that the New York criminal anarchy law was constitutional as it had been construed by the New York courts, and held that the complaints should therefore be dismissed. 288 F. Supp. 348 (SDNY 1968). [Footnote 3]In No. 2, Younger v. Harris, ante, p. 401 U. S. 37, we today decided, on facts very similar to the facts in these cases, that a United States District Court could not issue an injunction to stay proceedings pending in a state criminal court at the time the federal suit was begun. This was because it did not appear from the record that the plaintiffs would suffer immediate irreparable injury in accord with the rule set out in Douglas v. City of Jeannette, 319 U. S. 157 (1943), and many other cases. Since, in the present case, there is likewise no sufficient showing in the record that the plaintiffs have suffered or would suffer irreparable injury, our decision in the Younger case is dispositive of the prayers for injunctions Page 401 U. S. 69 here. The plaintiffs in the present cases also included in their complaints an alternative prayer for a declaratory judgment, but, for the reasons indicated below, we hold that this alternative prayer does not require a different result, and that, under the circumstances of these cases, the plaintiffs were not entitled to federal relief, declaratory or injunctive. Accordingly, we affirm the judgment of the District Court, although not for the reasons given in that court's opinion.In our opinion in the Younger case, we set out in detail the historical and practical basis for the settled doctrine of equity that a federal court should not enjoin a state criminal prosecution begun prior to the institution of the federal suit except in very unusual situations, where necessary to prevent immediate irreparable injury. The question presented here is whether, under ordinary circumstances, the same considerations that require the withholding of injunctive relief will make declaratory relief equally inappropriate. The question is not, however, a novel one. It was presented and fully considered by this Court in Great Lakes Co. v. Huffman, 319 U. S. 293 (1943). We find the reasoning of this Court in the Great Lakes case fully persuasive, and think that its holding is controlling here.In the Great Lakes case, several employers had brought suit against a Louisiana state official, seeking a declaratory judgment that the State's unemployment compensation law, which required the employers to make contributions to a state compensation fund, was unconstitutional. The lower courts had dismissed the complaint on the ground that the challenged law was constitutional. This Court affirmed the dismissal,"but solely on the ground that, in the appropriate exercise of the court's discretion, relief by way of a declaratory judgment should have been denied without consideration Page 401 U. S. 70 of the merits."Id. at 319 U. S. 301-302. The Court, in a unanimous opinion written by Mr. Chief Justice Stone, noted first that, under long-settled principle of equity, the federal courts could not have enjoined the Louisiana official from collecting the state tax at issue there unless, as was not true in that case, there was no adequate remedy available in the courts of the State. This judicial doctrine had been approved by Congress in the then-recent Tax Injunction Act of 1937, 50 Stat. 738, now 28 U.S.C. § 1341. Although the declaratory judgment sought by the plaintiffs was a statutory remedy, rather than a traditional form of equitable relief, the Court made clear that a suit for declaratory judgment was nevertheless "essentially an equitable cause of action," and was "analogous to the equity injunction in suits quia timet or for a decree quieting title." 319 U.S. at 319 U. S. 300. In addition, the legislative history of the Federal Declaratory Judgment Act of 1934, 48 Stat. 955, as amended, 28 U.S.C. § 2201, showed that Congress had explicitly contemplated that the courts would decide to grant or withhold declaratory relief on the basis of traditional equitable principles. Accordingly, the Court held that, in an action for a declaratory judgment, "the district court was as free as in any other suit in equity to grant or withhold the relief prayed, upon equitable grounds." 319 U.S. at 319 U. S. 300. The Court's application of these principles to the specific problem of declaratory judgment relating to the collection of state taxes is worth quoting in full, because it bears so directly on the problem before us in the present case:"The earlier refusal of federal courts of equity to interfere with the collection of state taxes unless the threatened injury to the taxpayer is one for which the state courts afford no adequate remedy, and the confirmation of that practice by Congress, Page 401 U. S. 71 have an important bearing upon the appropriate use of the declaratory judgment procedure by the federal courts as a means of adjudicating the validity of state taxes.""It is true that the Act of Congress speaks only of suits 'to enjoin, suspend, or restrain the assessment, levy, or collection of any tax' imposed by state law, and that the declaratory judgment procedure may be, and in this case was, used only to procure a determination of the rights of the parties, without an injunction or other coercive relief. It is also true that that procedure may, in every practical sense, operate to suspend collection of the state taxes until the litigation is ended. But we find it unnecessary to inquire whether the words of the statute may be so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax. For we are of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure."319 U.S. at 319 U. S. 299.The continuing validity of the Court's holding in the Great Lakes case has been repeatedly recognized and reaffirmed by this Court. See, e.g., Macauley v. Waterman S.S. Corp., 327 U. S. 540, 327 U. S. 545 n. 4 (1946); Ott v. Mississippi Barge Line, 336 U. S. 169, 336 U. S. 175 (1949); Public Serv. Comm'n v. Wycoff Co., 344 U. S. 237, 344 U. S. 253 (1952) (Douglas J., dissenting); Allegheny County v. Mashuda Co., 360 U. S. 185, 360 U. S. 189 (1959); Enochs v. Williams Packing Co., 370 U. S. 1, 370 U. S. 8 (1962). Although we have found no case in this Court dealing with the application of this doctrine to cases in which the relief sought affects state criminal prosecutions, rather than Page 401 U. S. 72 state tax collections, we can perceive no relevant difference between the two situations with respect to the limited question whether, in cases were the criminal proceeding was begun prior to the federal civil suit, the propriety of declaratory and injunctive relief should be judged by essentially the same standards. In both situations, deeply rooted and long-settled principles of equity have narrowly restricted the scope for federal intervention, and, ordinarily, a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions was designed to avoid. This is true for at least two reasons. In the first place, the Declaratory Judgment Act provides that, after a declaratory judgment is issued, the district court may enforce it by granting "[f]urther necessary or proper relief," 28 U.S.C. § 2202, and therefore a declaratory judgment issued while state proceedings are pending might serve as the basis for a subsequent injunction against those proceedings to "protect or effectuate" the declaratory judgment, 28 U.S.C. § 2283, and thus result in a clearly improper interference with the state proceedings. Secondly, even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formal injunction would. As we said in the Wycoff case, 344 U.S. at 344 U. S. 247:"Is the declaration contemplated here to be res judicata, so that the [state court] cannot hear evidence and decide any matter for itself? If so, the federal court has virtually lifted the case out of the State [court] before it could be heard. If not, the federal judgment serves no useful purpose as a final determination of rights. "Page 401 U. S. 73See also H. J. Heinz Co. v. Owens, 189 F.2d 505, 508-509 (CA9 1951). We therefore hold that, in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and that, where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.We do not mean to suggest that a declaratory judgment should never be issued in cases of this type if it has been concluded that injunctive relief would be improper. There may be unusual circumstances in which an injunction might be withheld because, despite a plaintiff's strong claim for relief under the established standards, the injunctive remedy seemed particularly intrusive or offensive; in such a situation, a declaratory judgment might be appropriate, and might not be contrary to the basic equitable doctrines governing the availability of relief. Ordinarily, however, the practical effect of the two forms of relief will be virtually identical, and the basic policy against federal interference with pending state criminal prosecutions will be frustrated as much by a declaratory judgment as it would be by an injunction.For the reasons we have stated, we hold that the court below erred in proceeding to a consideration of the merits of the New York criminal anarchy law. Here, as in the Great Lakes case, the judgment dismissing the complaint was based on an adjudication that the statutes challenged here are constitutional, and is thus, in effect, a declaratory judgment. We affirm the judgment dismissing the complaint, but solely on the ground that, in the appropriate exercise of the court's discretion, relief by way of declaratory judgment should have been denied without consideration of the merits. We, of course, express Page 401 U. S. 74 no views on the propriety of declaratory relief when no state proceeding is pending at the time the federal suit is begun.Affirmed

U.S. Supreme CourtSamuels v. Mackell, 401 U.S. 66 (1971)Samuels v. MackellNo. 7Argued April 1, 1969Reargued April 29 and November 16, 1970Decided February 23, 1971*401 U.S. 66SyllabusAppellants, who had been indicted under New York's criminal anarchy law, sought declaratory as well as injunctive relief against their prosecutions, on the ground that the law is unconstitutional. A three-judge District Court upheld the law and dismissed the complaints.Held:1. Since there was no showing that appellants have suffered or will suffer great and immediate irreparable injury by virtue of their being prosecuted in the state courts, where they can make their constitutional contentions, there is no basis for federal injunctive relief. Younger v. Harris, ante, p. 401 U. S. 37. Pp. 401 U. S. 68-69.2. The same principles that govern the propriety of federal injunctions of state criminal proceedings govern the issuance of federal declaratory judgments in connection with such proceedings, and appellants here should have been denied declaratory relief without consideration of the merits of their constitutional claims. Pp. 401 U. S. 69-74.288 F. Supp. 348, affirmed.BLACK, J., delivered the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 401 U. S. 74. STEWART, J., filed a concurring opinion, in which HARLAN, J., joined, ante, 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. 75. Page 401 U. S. 67

1972_71-1304

MR. JUSTICE MARSHALL delivered the opinion of the Court.In this case, we must decide whether a District Judge may impose a sentence of less than five years, suspend the sentence, place the offender on probation, or specify that he be eligible for parole, where the offender was convicted of a federal narcotics offense that was committed before May 1, 1971, but where he was sentenced after that date. Petitioners were convicted of conspiring to violate 26 U.S.C. § 4705(a) (1964 ed.) by selling cocaine not in pursuance of a written order form, in violation of 26 U.S.C. § 7237(b) (1964 ed.). The conspiracy occurred in March, 1971. At that time, persons convicted of such violations were subject to a mandatory minimum sentence of five years. The sentence could not be suspended, nor could probation be granted, and parole pursuant to 18 U.S.C. § 4202 was unavailable. 26 U.S.C. § 7237(d) (1964 ed. and Supp. V). These provisions were repealed by §§ 1101(b)(3)(A) and (b)(4)(A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of that Act was May 1, 1971, five days before petitioners were convicted.Each petitioner was sentenced to a five-year term. [Footnote 1] On appeal to the Court of Appeals for the First Circuit, Page 410 U. S. 607 various points, not here relevant, were raised. Following affirmance of their convictions, petitioners moved that their sentences be vacated and their cases be remanded to the District Court for resentencing pursuant to Fed.Rule Crim.Proc. 35. In their motion, they contended that the District Court should have considered "certain sentencing alternatives, including probation, suspension of sentence and parole" which became available on May 1, 1971. The Court of Appeals considered this motion as an "appendage" to the appeal. It held that the specific saving clause of the 1970 Act, § 1103(a), read against the background of the general saving provision, 1 U.S.C. § 109, required that "narcotics offenses committed prior to May 1, 1971, are to be punished according to the law in force at the time of the offense," and that, "under the mandate of § 109, the repealed statute, § 7237(d) is [to] be treated as still remaining in force.'" 455 F.2d 1181, 1190, 1191. Accordingly, the Court of Appeals held that the trial judge lacked power to impose a lesser sentence.We granted the petition for writ of certiorari, 407 U.S. 908 (1972), in order to resolve the conflict between the First and Ninth Circuits, see United States v. Stephens, 449 F.2d 103 (CA9 1971). [Footnote 2]IAt common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. See Bell v. Maryland, 378 U. S. 226, 378 U. S. 230 (1964); Norris v. Crocker, 13 How. 429 (1852). Abatement by repeal included a statute's repeal and reenactment with different Page 410 U. S. 608 penalties. See 1 J. Sutherland, Statutes and Statutory Construction § 2031 n. 2 (3d ed.1943). And the rule applied even when the penalty was reduced. See, e.g., The King v. M'Kenzie, 168 Eng.Rep. 881 (Cr. Cas. 1820); Beard v. State, 74 Md. 130, 21 A. 700 (1891). To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See generally Note, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121-130 (1972).Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is such a saving clause. It provides:"Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] . . . or abated by reason thereof."Petitioners contend that the word "prosecutions" in § 1103(a) must be given its everyday meaning. When people speak of prosecutions, they usually mean a proceeding that is under way in which guilt is to be determined. In ordinary usage, sentencing is not part of the prosecution, but occurs after the prosecution has concluded. In providing that "[p]rosecutions . . . shall not be affected," § 1103(a) means only that a defendant may be found guilty of an offense which occurred before May 1, 1971. The repeal of the statute creating the offense does not, on this narrow interpretation of § 1103(a), prevent a finding of guilt. But § 1103(a) does nothing more, according to petitioners.Although petitioners' argument has some force, we believe that their position is not consistent with Congress' Page 410 U. S. 609 intent. Rather than using terms in their everyday sense, "[t]he law uses familiar legal expressions in their familiar legal sense." Henry v. United States, 251 U. S. 393, 251 U. S. 395 (1920). The term "prosecution" clearly imports a beginning and an end. Cf. Kirby v. Illinois, 406 U. S. 682 (1972); Mempa v. Rhay, 389 U. S. 128 (1967).In Berman v. United States, 302 U. S. 211 (1937), this Court said,"Final judgment in a criminal case means sentence. The sentence is the judgment. Miller v. Aderhold, 288 U. S. 206, 288 U. S. 210; Hill v. Wampler, 298 U. S. 460, 298 U. S. 464."Id. at 302 U. S. 212. In the legal sense, a prosecution terminates only when sentence is imposed. See also Korematsu v. United States, 319 U. S. 432 (1943); United States v. Murray, 275 U. S. 347 (1928); Affronti v. United States, 350 U. S. 79 (1955). [Footnote 3] So long as sentence has not been imposed, then, § 1103(a) is to leave the prosecution unaffected. [Footnote 4]We therefore conclude that the Court of Appeals properly rejected petitioners' motion to vacate sentence and remand for resentencing. The District Judge had no power to consider suspending petitioners' sentences or placing them on probation. Those decisions must ordinarily be made before the prosecution terminates, Page 410 U. S. 610 and § 1103(a) preserves the limitations of § 7237(d) on decisions made at that time.IIThe courts of appeals that have dealt with this problem have failed, however, to consider fully the special problem of the parole eligibility of offenders convicted before May 1, 1971. The Seventh and Ninth Circuits hold that such offenders are eligible for parole. [Footnote 5] The First Circuit in this case stated that petitioners were "ineligible for suspended sentences, parole, or probation." 455 F.2d at 1191 (emphasis added).In the federal system, offenders may be made eligible for parole in two ways. Any federal prisoner "whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of" his sentence. 18 U.S.C. § 4202. Alternatively, the District Judge,"[u]pon entering a judgment of conviction . . . may (1) designate in the sentence of imprisonment imposed a minimum term, at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served, in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine."18 U.S.C. § 4208(a). Page 410 U. S. 611Section 1103(a) clearly makes parole unavailable under the latter provision. As we have said, sentencing is part of the prosecution. The mandatory minimum sentence of five years must therefore be imposed on offenders who violated the law before May 1, 1971. And Congress specifically provided that § 4208(a) does not apply to any offense "for which there is provided a mandatory penalty." Pub.L. 8752, § 7, 72 Stat. 847. In any event, the decision to make early parole available under § 4208(a) must be made "[u]pon entering a judgment of conviction," which occurs before the prosecution has ended. Section 1103(a) thus means that the District Judge cannot specify at the time of sentencing that the offender may be eligible for early parole.That was the only question before the Court of Appeals, and it is therefore the only question before us. Petitioners' motion, on which the Court of Appeals ruled, requested a remand so that the District Judge could consider the sentencing alternatives available to him under the Comprehensive Drug Abuse Prevention and Control Act of 1970. That Act, however, did not expand the choices open to the District Judge in this case, and the Court of Appeals correctly denied the motion to remand. The availability of parole under the general parole statute, 18 U.S.C. § 4202, is a rather different matter, [Footnote 6] on which we express no opinion.Affirmed

U.S. Supreme CourtBradley v. United States, 410 U.S. 605 (1973)Bradley v. United StatesNo. 71-1304Argued January 8, 1973Decided March 5, 1973410 U.S. 605SyllabusOn May 6, 1971, petitioners were convicted and sentenced for narcotics offenses committed in March, 1971. They received the minimum five-year sentences under a provision that was mandatory and made the sentences not subject to suspension, probation, or parole. Effective May 1, 1971, that provision was repealed and liberalized by the Comprehensive Drug Abuse Prevention and Control Act of 1970. On petitioners' motion for vacation of their sentences and remand for resentencing, the Court of Appeals held that the new provisions were unavailable in view of the Act's saving clause, which made them inapplicable to "prosecutions" antedating the Act's effective date.Held:1. The word "prosecutions" in the saving clause is to be accorded its normal legal sense, under which sentencing is a part of the concept of prosecution. Therefore, the saving clause barred the District Judge from suspending sentence or placing petitioners on probation. Pp. 410 U. S. 607-610.2. Under the saving clause, parole under 18 U.S.C. § 4208(a) is likewise unavailable to petitioners, since, by its terms, that provision is inapplicable to offenses for which a mandatory penalty is provided; and, in any event, a decision to grant early parole under that provision must be made "[u]pon entering a judgment of conviction," which occurs before the end of the prosecution. Pp. 410 U. S. 610-611.455 F.2d 1181, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Part I of which BRENNAN and WHITE, JJ., joined. BRENNAN and WHITE, JJ., filed a statement concurring in the judgment, post, p. 410 U. S. 611. DOUGLAS, J., filed a dissenting opinion, post, p. 410 U. S. 612. Page 410 U. S. 606

1989_89-504

Justice WHITE delivered the opinion of the Court.We granted certiorari to decide whether the Secretary of Health and Human Services may immediately appeal a district court order effectively declaring invalid regulations that limit the kinds of inquiries that must be made to determine whether a person is entitled to disability insurance benefits and remanding a claim for benefits to the Secretary for consideration without those restrictions. We hold that the Secretary may appeal such an order as a "final decision" under 28 U.S.C. § 1291. [Footnote 1]IRespondent Finkelstein is the widow of a wage earner who died in 1980 while fully insured under Title II of the Social Page 496 U. S. 620 Security Act, 49 Stat. 622, as amended, 42 U.S.C. § 401 et seq. (1982 ed.). In 1983, respondent applied to the Social Security Administration for widow's disability benefits, claiming that her heart condition made her disabled within the meaning of the section of the Social Security Act providing for surviving spouses' disability insurance benefit payments, § 223, as added, 70 Stat. 815, and as amended, 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(B) (1982 ed. and Supp. V).Section 423(d)(2)(B) states that a widow shall not be determined to be disabled unless her impairment is of a level of severity which, "under regulations prescribed by the Secretary [of Health and Human Services]," is deemed sufficient to preclude an individual from engaging in any gainful activity. Under regulations promulgated by the Secretary, 20 CFR §§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled only if the spouse suffers from a physical or mental impairment meeting or equaling the severity of an impairment included in the Secretary's Listing of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989). If the surviving spouse's impairment does not meet or equal one of the listed impairments, the Secretary will not find the spouse disabled; in particular, the Secretary will not consider whether the spouse's impairment nonetheless makes the spouse disabled, given the spouse's age, education, and work experience.The Secretary's practice for spouses' disability insurance benefits thus differs significantly from the regulations for determining whether a wage earner is entitled to disability insurance benefits. For wage earners, the Secretary has established a "five-step sequential evaluation process for determining whether a person is disabled." Bowen v. Yuckert, 482 U. S. 137, 482 U. S. 140 (1987). Under that five-step process, even if a wage earner's impairment does not meet or equal one of the listed impairments, the wage earner may nonetheless be entitled to disability insurance benefits if the Secretary determines that his "impairment in fact prevents him from working." Sullivan v. Zebley, 493 U. S. 521, 493 U. S. 535 Page 496 U. S. 621 (1990). The Secretary maintains that the difference between the wage earner regulations and the surviving spouse regulations is supported by a difference between the two pertinent statutory definitions of disability. Compare 42 U.S.C. § 423(d)(2)(A) with § 423(d)(2)(B).Respondent's application for benefits was denied on the ground that her heart condition did not meet or equal a listed impairment. After exhausting administrative remedies, respondent sought judicial review of the Secretary's decision in the United States District Court for the District of New Jersey, invoking § 205(g) of the Social Security Act, as amended, 53 Stat. 1370, 42 U.S.C. § 406(g) (1982 ed.). [Footnote 2] The District Page 496 U. S. 622 Court sustained the Secretary's conclusion that respondent did not suffer from an impairment that met or equaled a listed impairment. See App. to Pet. for Cert. 16a. The District Court nonetheless concluded that "the case must be remanded to the Secretary," id. at 17a, because the record was "devoid of any findings" regarding respondent's inability to engage in any gainful activity even though her impairment was not equal to one of the listed impairments, see ibid.The Court of Appeals for the Third Circuit dismissed the Secretary's appeal for lack of jurisdiction. 869 F.2d 215 (1989). The Court of Appeals relied on its past decisions holding that "remands to administrative agencies are not ordinarily appealable." Id. at 217 (citation omitted). Although the Court of Appeals acknowledged an exception to that rule for cases"in which an important legal issue is finally resolved and review of that issue would be foreclosed 'as a practical matter' if an immediate appeal were unavailable,"ibid. (citation omitted), that exception was deemed inapplicable in this case because the Secretary might persist in refusing benefits even after consideration of respondent's residual functional capacity on remand, and the District Court might thereafter order that benefits be granted, thereby providing the Secretary with an appealable Page 496 U. S. 623 final decision. Id. at 220. The Court of Appeals conceded that the Secretary might not be able to obtain review at a later point if he concluded on remand that respondent was entitled to benefits based on her lack of residual functional capacity, but it believed this argument for immediate appealability to be foreclosed by a prior decision of the Circuit. Ibid. We granted certiorari, 493 U.S. 1055 (1990).We begin by noting that the issue before us is not the broad question whether remands to administrative agencies are always immediately appealable. There is, of course, a great variety in remands, reflecting in turn the variety of ways in which agency action may be challenged in the district courts and the possible outcomes of such challenges. [Footnote 3] The question before us rather is whether orders of the type entered by the District Court in this case are immediately appealable by the Secretary. It is necessary therefore to consider precisely what the District Court held and why it remanded this case to the Secretary.Although the District Court sustained the Secretary's conclusion that respondent did not suffer from an impairment that met or equaled the severity of a listed impairment, it concluded that the Secretary's ultimate conclusion that respondent was not disabled could not be sustained because other medical evidence suggested that respondent might not Page 496 U. S. 624 be able to engage in any gainful activity. [Footnote 4] Considering it "anomalous" that an impairment actually leaving respondent without the residual functional capacity to perform any gainful activity could be insufficient to warrant benefits just because it was not equal to one of the listed impairments, the District Court directed the Secretary "to inquire whether [respondent] may or may not engage in any gainful activity, as contemplated by the Act." App. to Pet. for Cert. 18a. The District Court's order thus essentially invalidated, as inconsistent with the Social Security Act, the Secretary's regulations restricting spouses' disability insurance benefits to those claimants who can show that they have impairments with "specific clinical findings that are the same as . . . or are medically equivalent to" one of the listed impairments, 20 CFR § 404.1578(a)(1) (1989). Cf. Heckler v. Campbell, 461 U. S. 458, 461 U. S. 465-466 (1983). The District Court stated that it was "remand[ing]" the case to the Secretary because the record contained no findings about the functional impact of respondent's impairment; in effect, it ordered the Secretary to address respondent's ailment without regard for the regulations that would have precluded such consideration. The District Court's order thus reversed the Secretary's conclusion that respondent was not disabled, and remanded for further consideration of respondent's medical condition.Once the nature of the District Court's action is made clear, it becomes clear how this action fits into the structure of § 405(g). The first sentence of § 405(g) provides that an individual denied benefits by a final decision of the Secretary may obtain judicial review of that decision by filing "a civil action" in federal district court. The use of the term "a civil action" Page 496 U. S. 625 suggests that, at least in the context of § 405(g), each final decision of the Secretary will be reviewable by a separate piece of litigation. [Footnote 5] The fourth and eighth sentences of § 405(g) buttress this conclusion. The fourth sentence states that, in such a civil action, the district court shall have the power to enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." (Emphasis added.) This sentence describes the action that the District Court actually took in this case. In particular, although the fourth sentence clearly foresees the possibility that a district court may remand a cause to the Secretary for rehearing (as the District Court did here), nonetheless such a remand order is a "judgment" in the terminology of § 405(g). What happened in this case is that the District Court entered "a judgment . . . reversing the decision of the Secretary, with . . . remanding the cause for a rehearing." The District Court's remand order was unquestionably a "judgment," as it terminated the civil action challenging the Secretary's final determination that respondent was not entitled to benefits, set aside that determination, and finally decided that the Secretary could not follow his own regulations in considering the disability issue. Furthermore, should the Secretary on remand undertake the inquiry mandated by the District Court and award benefits, there would be grave doubt, as the Court of Appeals recognized, whether he could appeal his own order. Thus it is that the eighth sentence of § 405(g) provides that "[t]he judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions." (Emphasis added.)Respondent makes several arguments countering this construction of § 405(g) and of the District Court's order, none of which persuades us. First, respondent argues that the remand Page 496 U. S. 626 in this case was ordered not pursuant to the fourth sentence of § 405(g), but under the sixth sentence of that section, which states in pertinent part that the District Court mayat any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.Respondent points out that the District Court stated that it was ordering a remand because the evidence on the record was insufficient to support the Secretary's conclusion and that further factfinding regarding respondent's ailment was necessary. We do not agree with respondent that the District Court's action in this case was a "sixth-sentence remand." The sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding. [Footnote 6]For the same reason, we reject respondent's argument, based on the seventh sentence of § 405(g), that the district court may enter an appealable final judgment upon reviewing the Secretary's post-remand "additional or modified findings of fact and decision." The post-remand review conducted by the District Court under the seventh sentence refers only to Page 496 U. S. 627 cases that were previously remanded under the sixth sentence. The seventh sentence states that the district court may review "[s]uch additional or modified findings of fact," a reference to the second half of the sixth sentence of § 405(g), which requires that"the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision. . . ."The phrase "such additional evidence" refers in turn to the "additional evidence" mentioned in the first half of the sixth sentence that the district court may order the Secretary to take in a sixth-sentence remand. See supra, at 496 U. S. 625-626. But, as the first half of the sixth sentence makes clear, the taking of this additional evidence may be ordered only upon a showing that there is material new evidence. The post-remand judicial review contemplated by the seventh sentence of § 405(g) does not fit the kind of remand ordered by the District Court in this case.Respondent also argues that the eighth sentence of § 405(g), providing that the judgment of the district court "shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions," does not compel the conclusion that a judgment entered pursuant to the fourth sentence is immediately appealable. In respondent's view, Congress used the the term "final" in the eighth sentence only to make clear that a court's decision reviewing agency action could operate as law of the case and res judicata. Cf. City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320, 357 U. S. 336 (1958). But even if it is true that Congress used the term "final" to mean "conclusively decided," this reading does not preclude the construction of "final" to include "appealable," a meaning with which "final" is usually coupled. Nor does respondent consider the significance of Congress' use of the term "judgment" to describe the action Page 496 U. S. 628 taken by the District Court in this case. [Footnote 7] Although respondent argues that the words "final decisions," as used in 28 U.S.C. § 1291, encompass no more than what was meant by the terms "final judgments and decrees" in the predecessor statute to § 1291, respondent recognizes that "final judgments" are at the core of matters appealable under § 1291, and respondent does not contest the power of Congress to define a class of orders as "final judgments" that by inference would be appealable under § 1291. Cf. Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 351 U. S. 434 (1956). This is what Congress has done in the fourth sentence of § 405(g). [Footnote 8] Page 496 U. S. 629More generally, respondent argues that a power in the district court to remand to an agency is always incident to the power to review agency action, and that § 405(g) only expanded the district courts' equitable powers; therefore, she insists, it is improper to construe § 405(g) as a limit on the district courts' power to remand. This argument misapprehends what Congress sought to accomplish in § 405(g). The fourth sentence of § 405(g) does not "limit" the district courts' authority to remand. Rather, the fourth sentence directs the entry of a final, appealable judgment even though that judgment may be accompanied by a remand order. The fourth sentence does not require the district court to choose between entering a final judgment and remanding; to the contrary, it specifically provides that a district court may enter judgment "with or without remanding the cause for a rehearing."Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson, 490 U. S. 877 (1989), that a remand order of the kind entered in this case is not appealable as a final decision. Although there is language in Hudson Page 496 U. S. 630 supporting respondent's interpretation of that case, we do not find that language sufficient to sustain respondent's contentions here. In Hudson, we held that, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A), a federal court may award a Social Security claimant attorney's fees for representation during administrative proceedings held pursuant to a district court order remanding the action to the Secretary. We were concerned there with interpreting the term "any civil action" in the EAJA, [Footnote 9] not with deciding whether a remand order could be appealed as a "final decision" under 28 U.S.C. § 1291. We noted in Hudson that the language of § 2412(d)(1)(A) must be construed with reference to the purpose of the EAJA and the realities of litigation against the Government. The purpose of the EAJA was to counterbalance the financial disincentives to vindicating rights against the Government through litigation; given this purpose, we could not believe that Congress would "throw the Social Security claimant a lifeline that it knew was a foot short" by denying her attorney's fees for the mandatory proceedings on remand. Hudson, supra, at 490 U. S. 890. We also recognized that, even if a claimant had obtained a remand from the district court, she would not be a "prevailing party" for purposes of the EAJA until the result of the administrative proceedings held on remand was known. 490 U.S. at 490 U. S. 887-888. We therefore concluded that, for purposes of the EAJA, the administrative proceedings on remand "should be considered part and parcel of the action for which fees may be awarded." Id. at 490 U. S. 888. We did not say that proceedings on remand to an agency are "part and parcel" Page 496 U. S. 631 of a civil action in federal district court for all purposes, and we decline to do so today.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSullivan v. Finkelstein, 496 U.S. 617 (1990)Sullivan v. FinkelsteinNo. 89-504Argued April 24, 1990Decided June 18, 1990496 U.S. 617SyllabusTitle 42 U.S.C. § 405(g), which is not further divided into subsections, provides, inter alia, that: an individual may obtain judicial review of a final decision of the Secretary of Health and Human Services under the Social Security Act by filing "a civil action" in the district court (sentence one); in such action, that court has the power to enter "a judgment affirming, modifying, or reversing the [Secretary's] decision, with or without remanding the cause for a rehearing" (sentence four) (emphasis added); that court may order a remand for the taking of additional evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding" (sentence six); that court may review the Secretary's post-remand "additional or modified findings of fact and decision" (sentence seven); and that court's judgment "shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions" (sentence eight). Respondent filed an application for widow's disability benefits under § 423(d)(2)(B), which authorizes an award to a widow whose impairment is of a level of severity deemed sufficient by the Secretary's regulations to preclude an individual from engaging in any gainful activity. Under those regulations, a surviving spouse who suffers from an impairment meeting or equaling the severity of an impairment included in the Secretary's Listing of Impairments is disabled. After respondent's application was denied on the ground that her heart condition did not meet or equal a listed impairment, she filed suit in the District Court, invoking § 405(g). The court sustained the Secretary's conclusion that she did not meet the regulatory definition for disability, but reversed the decision and remanded the case for a determination of her ability to engage in any gainful activity without regard to the regulation. The Court of Appeals dismissed the Secretary's appeal for lack of jurisdiction, because remands to administrative agencies are not ordinarily "final decisions" appealable under 28 U.S.C. § 1291. It held that the exception for cases in which an important legal issue is finally resolved and review of that issue would be foreclosed as a practical matter if an immediate appeal were unavailable was inapplicable because, if the Secretary persisted in refusing benefits on Page 496 U. S. 618 remand, the District Court might order that benefits be granted, thereby providing the Secretary with an appealable final decision. The court also believed that Circuit precedent foreclosed the Secretary's argument that he might not be able to obtain review at a later point if he awarded benefits on remand.Held: The Secretary may immediately appeal a district court order effectively invalidating regulations limiting the kinds of inquiries that must be made to determine entitlement to disability insurance benefits and remanding a claim to the Secretary for consideration without those restrictions. Pp. 496 U. S. 623-631.(a) The District Court's order essentially invalidated, as inconsistent with the Act, regulations restricting eligibility for widow's disability benefits. Pp. 496 U. S. 623-624.(b) Section 405(g)'s text and structure define the court of appeals' jurisdiction. The term "a civil action" in sentence one suggests that each final decision of the Secretary is reviewable by a separate piece of litigation. Here, the District Court entered a judgment pursuant to sentence four: it reversed the Secretary's decision and "remand[ed] the cause for a rehearing." Unquestionably this is a "judgment" in § 405(g)'s terminology, as the court terminated the civil action challenging the Secretary's final decision, set aside that decision, and decided that the Secretary could not follow his own regulations on remand. Since there would be grave doubt whether the Secretary could appeal his own order if on remand he awarded benefits, the District Court's order was a "final judgment" subject to further review under sentence eight. Pp. 496 U. S. 624-625.(c) Respondent's several arguments countering this construction of § 405(g) are unpersuasive. First, the remand in this case was not ordered pursuant to the sixth sentence, since a sixth-sentence remand is appropriate only when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed that proceeding's outcome. Second, the post-remand judicial review contemplated by sentence seven refers only to reviews in cases that were previously remanded under sentence six, and thus does not fit the kind of remand ordered in this case. Third, the eighth sentence does in fact compel the conclusion that a fourth-sentence judgment is immediately appealable. That Congress may have used "final" to mean conclusively decided for res judicata purposes does not preclude the construction of "final" to include "appealable," a meaning with which "final" is usually coupled. Moreover, Congress is empowered to define a class of orders that are "final judgments" within the meaning of § 1291, and that is precisely what it has done in sentence four. Fourth, sentence four does not limit a district court's power to remand a case, since it does not require the court to choose between entering a Page 496 U. S. 619 final judgment and remanding, but specifically provides that it may do both. Finally, language in Sullivan v. Hudson, 490 U. S. 877 (1989), suggesting that this type of remand order is not appealable as a final decision is insufficient to sustain respondent's contentions here, since that case dealt with the interpretation of the Equal Access to Justice Act's term "any civil action," not with whether a remand order could be appealed as a "final decision" under § 1291. Pp. 496 U. S. 625-631.869 F.2d 215 (CA 31985), reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in which SCALIA, J., joined except as to n. 8. SCALIA, J., filed an opinion concurring in part, post, p. 496 U. S. 631. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 496 U. S. 632.

2000_99-1815

Laurence Gold filed briefs for Kentucky State District Council of Carpenters as respondent under this Court's Rule 12.6 in support of petitioner.Michael W Hawkins argued the cause for respondent Kentucky River Community Care, Inc. With him on the brief were Louise S. Brock and Cheryl E. Bruner.*JUSTICE SCALIA delivered the opinion of the Court. Under the National Labor Relations Act, employees are deemed to be "supervisors" and thereby excluded from the protections of the Act if, inter alia, they exercise "independent judgment" in "responsibly ... direct[ingJ" other employees "in the interest of the employer." 29 U. S. C. § 152(11). This case presents two questions: which party in an unfair-labor-practice proceeding bears the burden of proving or disproving an employee's supervisory status; and whether judgment is not "independent judgment" to the extent that it is informed by professional or technical training or experience.IIn Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen concededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor*Briefs of amici curiae urging reversal were filed for the American Nurses Association by Barbara J. Sapin and Woody N. Peterson; and for the Service Employees International Union et al. by Judith A. Scott, Diana O. Ceresi, Robert E. Funk, Jr., David J. Strom, Jack Dempsey, and Larry Weinberg.Briefs of amici curiae urging affirmance were filed for the American Health Care Association by Thomas V. Walsh and Thomas P. McDonough; and for Human Resource Management et al. by G. Roger King.709union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) § 9(c), 49 Stat. 453, 29 U. S. C. § 159(c).At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were "supervisors" under § 2(11) of the Act, 29 U. S. C. § 152(11), and therefore excluded from the class of "employees" subject to the Act's protection and includable in the bargaining unit. See § 2(3), 29 U. S. C. § 152(3). The Board's Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see § 3(b), 29 U. S. C. § 153(b); 29 CFR § 101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See § 9(c)(1), 29 U. S. C. § 159(c)(1). The Board denied respondent's request for review of the Regional Director's decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees.Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U. S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR § 102.67(f) (2000); see Magnesium Casting Co. v.710NLRB, 401 U. S. 137, 139-141 (1971) (approving that practice); Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 161-162 (1941) (same).Respondent petitioned for review of the Board's decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent's petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board's interpretation of "independent judgment," explaining that the Board had erred by classifying "the practice of a nurse supervising a nurse's aide in administering patient care" as "'routine' [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with 'management.''' 193 F.3d 444, 453 (1999). We granted the Board's petition for a writ of certiorari. 530 U. S. 1304 (2000).IIThe Act expressly defines the term "supervisor" in § 2(11),which provides:"The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U. S. C. § 152(11).The Act does not, however, expressly allocate the burden of proving or disproving a challenged employee's supervisory status. The Board therefore has filled the statutory gap with the consistent rule that the burden is borne by711the party claiming that the employee is a supervisor. For example, when the General Counsel seeks to attribute the conduct of certain employees to the employer by virtue of their supervisory status, this rule dictates that he bear the burden of proving supervisory status. See, e. g., Masterform Tool Co., 327 N. L. R. B. 1071, 1071-1072 (1999). Or, when a union challenges certain ballots cast in a representation election on the basis that they were cast by supervisors, the union bears the burden. See, e. g., Panaro and Grimes, 321 N. L. R. B. 811, 812 (1996).The Board argues that the Court of Appeals for the Sixth Circuit erred in not deferring to its resolution of the statutory ambiguity, and we agree. The Board's rule is supported by "the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits." FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948). The Act's definition of "employee," § 2(3), 29 U. S. C. § 152(3), "reiterate[s] the breadth of the ordinary dictionary definition" of that term, so that it includes "any 'person who works for another in return for financial or other compensation.'" NLRB v. Town & Country Elec., Inc., 516 U. S. 85, 90 (1995) (quoting American Heritage Dictionary 604 (3d ed. 1992)). Supervisors would fall within the class of employees, were they not expressly excepted from it. See Sure-Tan, Inc. v. NLRB, 467 U. S. 883,891 (1984); cf. Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947). The burden of proving the applicability of the supervisory exception, under Morton Salt, should thus fall on the party asserting it. In addition, it is easier to prove an employee's authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee's authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board's rule for allocating the burden of proof is reasonable and consistent with the Act, and712we therefore defer to it. NLRB v. Transportation Management Corp., 462 U. S. 393, 402-403 (1983).Applying its rule to this case, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the § 9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the § 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, "the General Counsel carries the burden of proving the elements of an unfair labor practice," id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. § 556(d); Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 276-278 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board's claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of "employees," § 8(a)(5), 29 U. S. C. § 158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred. It remains to consider whether the court's other holding that is challenged here suffices to sustain its judgment.IIIThe text of § 2(11) of the Act that we quoted above, 29 U. S. C. § 152(11), sets forth a three-part test for deter-713mining supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment," and (3) their authority is held "in the interest of the employer." NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 573-574 (1994). The only basis asserted by the Board, before the Court of Appeals and here, for rejecting respondent's proof of supervisory status with respect to directing patient care was the Board's interpretation of the second part of the test-to wit, that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employerspecified standards." Brief for Petitioner 11. The Court of Appeals rejected that interpretation, and so do we.Two aspects of the Board's interpretation are reasonable, and hence controlling on this Court, see NLRB v. Town & Country Elec., Inc., supra, at 89-90; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984). First, it is certainly true that the statutory term "independent judgment" is ambiguous with respect to the degree of discretion required for supervisory status. See NLRB v. Health Care & Retirement Corp. of America, supra, at 579. Many nominally supervisory functions may be performed without the "exercis[e of] such a degree of ... judgment or discretion ... as would warrant a finding" of supervisory status under the Act. Weyerhaeuser Timber Co., 85 N. L. R. B. 1170, 1173 (1949). It falls clearly within the Board's discretion to determine, within reason, what scope of discretion qualifies. Second, as reflected in the Board's phrase "in accordance with employer-specified standards," it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold714by detailed orders and regulations issued by the employer. So, for example, in Chevron Shipping Co., 317 N. L. R. B. 379, 381 (1995), the Board concluded that "although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is circumscribed by the master's standing orders, and the Operating Regulations, which require the watch officer to contact a superior officer when anything unusual occurs or when problems occur."The Board, however, argues further that the judgment even of employees who are permitted by their employer to exercise a sufficient degree of discretion is not "independent judgment" if it is a particular kind of judgment, namely, "ordinary professional or technical judgment in directing less-skilled employees to deliver services." Brief for Petitioner 11. The first five words of this interpretation insert a startling categorical exclusion into statutory text that does not suggest its existence. The text, by focusing on the "clerical" or "routine" (as opposed to "independent") nature of the judgment, introduces the question of degree of judgment that we have agreed falls within the reasonable discretion of the Board to resolve. But the Board's categorical exclusion turns on factors that have nothing to do with the degree of discretion an employee exercises. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 481 (2001) ("[T]he agency's interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear"). Let the judgment be significant and only loosely constrained by the employer; if it is "professional or technical" it will nonetheless not be independent.1 The breadth1 The Board in its reply brief in this Court steps back from this interpretation and argues that it has only drawn distinctions between degrees of authority. Reply Brief for Petitioner 3. But the opinions of the Board that developed its current interpretation of "independent judgment" clearly draw a categorical distinction. See, e. g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996) ("Section 2(11) supervisory authority does715of this exclusion is made all the more startling by virtue of the Board's extension of it to judgment based on greater "experience" as well as formal training. See Reply Brief for Petitioner 3 ("professional or technical skill or experience"). What supervisory judgment worth exercising, one must wonder, does not rest on "professional or technical skill or experience"? If the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate "supervisors" from the Act. Cf. NLRB v. Yeshiva Univ., 444 U. S. 672, 687 (1980) (Excluding "decisions ... based on ... professional expertise" would risk "the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities").As it happens, though, only one class of supervisors would be eliminated in practice, because the Board limits its categorical exclusion with a qualifier: Only professional judgment that is applied "in directing less-skilled employees to deliver services" is excluded from the statutory category of "independent judgment." Brief for Petitioner 11. This second rule is no less striking than the first, and is directly contrary to the text of the statute. Every supervisory function listed by the Act is accompanied by the statutory requirement that its exercise "requir[e] the use of independent judgment" before supervisory status will obtain, § 152(11), but the Board would apply its restriction upon "independent judgment" to just 1 of the 12 listed functions: "responsiblynot include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee's experience, skills, training, or position"). It is those opinions that were cited in the Regional Director's opinion resolving the representation dispute, see App. to Pet. for Cert. 52a-53a, which was accepted without further review by the Board and was unreviewable in the unfair labor practice proceeding. "We do not, of course, substitute counsel's post hoc rationale for the reasoning supplied by the Board itself." NLRB v. Yeshiva Univ., 444 U. S. 672, 685, n. 22 (1980) (citing SEC v. Chenery Corp., 332 U. S. 194, 196 (1947)).716to direct." There is no apparent textual justification for this asymmetrical limitation, and the Board has offered none. Surely no conceptual justification can be found in the proposition that supervisors exercise professional, technical, or experienced judgment only when they direct other employees. Decisions "to hire, ... suspend, layoff, recall, promote, discharge, ... or discipline" other employees, ibid., must often depend upon that same judgment, which enables assessment of the employee's proficiency in performing his job. See NLRB v. Yeshiva Univ., supra, at 686 ("[M]ost professionals in managerial positions continue to draw on their special skills and training"). Yet in no opinion that we were able to discover has the Board held that a supervisor's judgment in hiring, disciplining, or promoting another employee ceased to be "independent judgment" because it depended upon the supervisor's professional or technical training or experience. When an employee exercises one of these functions with judgment that possesses a sufficient degree of independence, the Board invariably finds supervisory status. See, e. g., Trustees of Noble Hospital, 218 N. L. R. B. 1441, 1442 (1975).The Board's refusal to apply its limiting interpretation of "independent judgment" to any supervisory function other than responsibly directing other employees is particularly troubling because just seven years ago we rejected the Board's interpretation of part three of the supervisory test that similarly was applied only to the same supervisory function. See NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994). In Health Care, the Board argued that nurses did not exercise their authority "in the interest of the employer," as § 152(11) requires, when their "independent judgment [was] exercised incidental to professional or technical judgment" instead of for "disciplinary or other matters, i. e., in addition to treatment of patients." Northcrest Nursing Home, 313 N. L. R. B. 491, 505 (1993). It did not escape our notice that the target of this analy-717sis was the supervisory function of responsible direction. "Under § 2(11)," we noted, "an employee who in the course of employment uses independent judgment to engage in 1 of the 12 listed activities, including responsible direction of other employees, is a supervisor. Under the Board's test, however, a nurse who in the course of employment uses independent judgment to engage in responsible direction of other employees is not a supervisor." 511 U. S., at 578-579. We therefore rejected the Board's analysis as "inconsistent with ... the statutory language," because it "rea[d] the responsible direction portion of § 2(11) out of the statute in nurse cases." Id., at 579-580. It is impossible to avoid the conclusion that the Board's interpretation of "independent judgment," applied to nurses for the first time after our decision in Health Care, has precisely the same object. This interpretation of "independent judgment" is no less strained than the interpretation of "in the interest of the employer" that it has succeeded.2 Cf. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S. 359, 374 (1998) (an agency that announces one principle but applies another is not acting rationally under the Act).The Board contends, however, that Congress incorporated the Board's categorical restrictions on "independent judgment" when it first added the term "supervisor" to the Act in 1947. We think history shows the opposite. The Act as originally passed by Congress in 1935 did not mention supervisors directly. It extended to "employees" the "right to self-organization, to form, join, or assist labor organizations,2JUSTICE STEVENS argues in this case, see post, at 725-726 (opinion concurring in part and dissenting in part), as the Board argued in NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 579 (1994), that the strain is eased by the ambiguity of a different term in the statute, "responsibly to direct." That argument is no more persuasive now than when we rejected it in Health Care: "[A]mbiguity in one portion of a statute does not give the Board license to distort other provisions of the statute," ibid.718[and] to bargain collectively through representatives of their own choosing .... " Act of July 5, 1935, § 7, 49 Stat. 452, and it defined "employee" expansively (if circularly) to "include any employee," § 2(3). We therefore held that supervisors were protected by the Act. Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947). Congress in response added to the Act the exemption we had found lacking. The Labor Management Relations Act, 1947 (Taft-Hartley Act) expressly excluded "supervisors" from the definition of "employees" and thereby from the protections of the Act. § 2(3), 61 Stat. 137, as amended, 29 U. S. C. § 152(3) ("The term 'employee' ... shall not include ... any individual employed as a supervisor"); Taft-Hartley Act § 14(a), as amended, 29 U. S. C. § 164(a) ("[N]o employer [covered by the Act] shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining").Well before the Taft-Hartley Act added the term "supervisor" to the Act, however, the Board had already been defining it, because while the Board agreed that supervisors were protected by the 1935 Act, it also determined that they should not be placed in the same bargaining unit as the employees they oversaw. To distinguish the two groups, the Board defined "supervisors" as employees who "supervise or direct the work of [other] employees ... , and who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees." Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis added). The "and" bears emphasis because it was a true conjunctive: The Board consistently held that employees whose only supervisory function was directing the work of other employees were not "supervisors" within its test. For example, in Bunting Brass & Bronze Co., 58 N. L. R. B. 618, 620 (1944), the Board wrote: "We are of the opinion that, while linemen do direct the work of [other] employees, they do not exercise substantial supervisory authority within the719usual meaning of that term." See also, e. g., Duval Texas Sulphur Co., 53 N. L. R. B. 1387, 1390-1391 (1943) ("As to the chief electrician, motor mechanic, plant engineers, and drillers, ... [t]he fact that they work with helpers, and perforce direct and guide the work of their helpers, does not, of itself, elevate them to such supervisory rank that they must be excluded from the broad production and maintenance unit").When the Taft-Hartley Act added the term "supervisor" to the Act in 1947, it largely borrowed the Board's definition of the term, with one notable exception: Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice. "The term 'supervisor' means any individual having authority ... to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances." Taft- Hartley Act § 2(11), as amended, 29 U. S. C. § 152(11) (emphasis added). Moreover, the Act assuredly did not incorporate the Board's current interpretation of the term "independent judgment" as applied to the function of responsible direction, since the Board had not yet developed that interpretation. It had had no reason to do so, because it had limited the category of supervisors more directly, by requiring functions in addition to responsible direction. It is the Act's alteration of precisely that aspect of the Board's jurisprudence that has pushed the Board into a running struggle to limit the impact of "responsibly to direct" on the number of employees qualifying for supervisory status-presumably driven by the policy concern that otherwise the proper balance of labormanagement power will be disrupted.It is upon that policy concern that the Board ultimately rests its defense of its interpretation of "independent judgment." In arguments that parallel those expressed by the dissent in Health Care, see 511 U. S., at 588-590 (GINS-720BURG, J., dissenting), and which are adopted by JUSTICE STEVENS in this case, see post, at 726-727, the Board contends that its interpretation is necessary to preserve the inclusion of "professional employees" within the coverage of the Act. See § 2(12), 29 U. S. C. § 152(12). Professional employees by definition engage in work "involving the consistent exercise of discretion and judgment." § 152(12)(a)(ii). Therefore, the Board argues (enlisting dictum from our decision in NLRB v. Yeshiva Univ., 444 U. S., at 690, and n. 30, that was rejected in Health Care, see 511 U. S., at 581-582), if judgment of that sort makes one a supervisor under § 152(11), then Congress's intent to include professionals in the Act will be frustrated, because "many professional employees (such as lawyers, doctors, and nurses) customarily give judgment-based direction to the less-skilled employees with whom they work," Brief for Petitioner 33. The problem with the argument is not the soundness of its labor policy (the Board is entitled to judge that without our constant second-guessing, see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 786 (1990)). It is that the policy cannot be given effect through this statutory text. See Health Care, supra, at 581 ("[T]here may be 'some tension between the Act's exclusion of [supervisory and] managerial employees and its inclusion of professionals,' but we find no authority for 'suggesting that that tension can be resolved' by distorting the statutory language in the manner proposed by the Board") (quoting NLRB v. Yeshiva Univ., supra, at 686). Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others' performance of discrete tasks from employees who direct other employees, as § 152(11) requires. Certain of the Board's decisions appear to have drawn that distinction in the past, see, e. g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996). We have no occasion to consider it here, however, because the Board has carefully721insisted that the proper interpretation of "responsibly to direct" is not at issue in this case, see Brief for Petitioner 21-22, n. 9; Reply Brief for Petitioner 7-8, n. 6.What is at issue is the Board's contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, "independent judgment," that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees. 511 U. S., at 581. We therefore find the Board's interpretation unlawful. See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S., at 364 ("Courts must defer to the requirements imposed by the Board if they are 'rational and consistent with the Act,' and if the Board's 'explication is not inadequate, irrational or arbitrary'" (citations omitted)).***We may not enforce the Board's order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943), and, as we noted above, supra, at 713, the Board has not asked us to do so. Hence, the Board's error in interpreting "independent judgment" precludes us from enforcing its order. Our decision in Health Care, where the Board similarly had not asserted that its decision was correct on grounds apart from the one we rejected, see 511 U. S., at 584, simply affirmed the judgment of the Court of Appeals denying enforcement. Since that same condition applies here, see Brief for Petitioner 14, 42, and since neither party has suggested that Health Care's method for determining the propriety of a remand should722Opinion of STEVENS, J.not apply here, we take the same course.3 "Our conclusion that the Court of Appeals was correct to find the Board's test inconsistent with the statute ... suffices to resolve the case." Health Care, supra, at 584. The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 2000SyllabusNATIONAL LABOR RELATIONS BOARD v.KENTUCKY RIVER COMMUNITY CARE, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 99-1815. Argued February 21, 200l-Decided May 29, 2001When co-respondent labor union petitioned the National Labor Relations Board to represent a unit of employees at respondent's residential care facility, respondent objected to the inclusion of its registered nurses in the unit, arguing that they were "supervisors" under § 2(11) of the National Labor Relations Act (Act), 29 U. S. C. § 152(11), and hence excluded from the Act's protections. At the representation hearing, the Board's Regional Director placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and included the nurses in the unit. Thereafter, respondent refused to bargain with the union, leading the Board's General Counsel to file an unfair labor practice complaint. The Board granted the General Counsel summary judgment on the basis of the representation determination, but the Sixth Circuit refused to enforce the Board's order. It rejected the Board's interpretation of "independent judgment" in § 2(11)'s test for supervisory status, and held that the Board had erred in placing the burden of proving supervisory status on respondent.Held:1. Respondent carries the burden of proving the nurses' supervisory status in the representation hearing and unfair labor practice proceeding. The Act does not expressly allocate the burden of proving or disproving supervisory status, but the Board has consistently placed the burden on the party claiming that the employee is a supervisor. That rule is both reasonable and consistent with the Act, which makes supervisors an exception to the general class of employees. It is not contrary to the requirement that the Board must prove the elements of an unfair labor practice, because supervisory status is not an element of the Board's refusal-to-bargain charge. The Board must prove that the employer refused to bargain with the representative of a properly certified unit; the unit was not properly certified only if respondent successfully showed at the certification stage that some employees in the unit were supervisors. Pp.710-712.2. The Board's test for determining supervisory status is inconsistent with the Act. The Act deems employees to be "supervisors" if they707(1) exercise 1 of 12 listed supervisory functions, including "responsibly direct[ing]" other employees, (2) use "independent judgment" in exercising their authority, and (3) hold their authority in the employer's interest, § 2(11). The Board rejected respondent's proof of supervisory status on the ground that employees do not use "independent judgment" under § 2(11) when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Brief for Petitioner 11. This interpretation, by distinguishing different kinds of judgment, introduces a categorical exclusion into statutory text that does not suggest its existence. The text permits questions regarding the degree of discretion an employee exercises, but the Board's interpretation renders determinative factors that have nothing to do with degree: even a significant judgment only loosely constrained by the employer will not be independent if it is "professional or technical." The Board limits its categorical exclusion with a qualifier that is no less striking: only professional judgment applied in directing less skilled employees to deliver services is not "independent judgment." Hence, the exclusion would apply to only 1 of the listed supervisory functions-"responsibly to direct" -though all 12 require using independent judgment. Contrary to the Board's contention, Congress did not incorporate the Board's categorical restrictions on "independent judgment" when it first added "supervisor" to the Act in 1947. The Board's policy concern regarding the proper balance of labor-management power cannot be given effect through this statutory text. Because this Court may not enforce the Board's order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267,289290, the Board's error precludes the Court from enforcing its order. Pp. 712-722.193 F.3d 444, affirmed.SCALIA, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I and III, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 722.Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were former Solicitor General Waxman, Matthew D. Roberts, Leonard R. Page, John H. Ferguson, Norton J. Come, and John Emad Arbab. Thomas J. Schulz, Jonathan P. Hiatt, James B. Coppess, and708Full Text of Opinion

1989_88-1943

Justice KENNEDY delivered the opinion of the Court.This case presents the question whether erroneous oral and written advice given by a Government employee to a Page 496 U. S. 416 benefits claimant may give rise to estoppel against the Government, and so entitle the claimant to a monetary payment not otherwise permitted by law. We hold that payments of money from the Federal Treasury are limited to those authorized by statute, and we reverse the contrary holding of the Court of Appeals.INot wishing to exceed a statutory limit on earnings that would disqualify him from a disability annuity, respondent Charles Richmond sought advice from a federal employee and received erroneous information. As a result, he earned more than permitted by the eligibility requirements of the relevant statute and lost six months of benefits. Respondent now claims that the erroneous and unauthorized advice should give rise to equitable estoppel against the Government, and that we should order payment of the benefits contrary to the statutory terms. Even on the assumption that much equity subsists in respondent's claim, we cannot agree with him or the Court of Appeals that we have authority to order the payment he seeks.Respondent was a welder at the Navy Public Works Center in San Diego, California. He left this position in 1981 after petitioner, the Office of Personnel Management (OPM), approved his application for a disability retirement. OPM determined that respondent's impaired eyesight prevented him from performing his job and made him eligible for a disability annuity under 5 U.S.C. § 8337(a). Section 8337(a) provides this benefit for disabled federal employees who have completed five years of service. The statute directs, however, that the entitlement to disability payments will end if the retired employee is "restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement." 5 U.S.C. § 8337(d).The statutory rules for restoration of earning capacity are central to this case. Prior to 1982, an individual was deemed Page 496 U. S. 417 restored to earning capacity, and so rendered ineligible for a disability annuity, if"in each of 2 succeeding calendar years the income of the annuitant from wages or self-employment . . . equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement."5 U.S.C. § 8337(d) (1976 ed.) (emphasis added). The provision was amended in 1982 by the Omnibus Budget Reconciliation Act, Pub.L. 97-253, 96 Stat. 792, to change the measuring period for restoration of earning capacity from two years to one:"Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement."5 U.S.C. § 8337(d) (emphasis added).After taking disability retirement for his vision impairment, respondent undertook part time employment as a school bus driver. From 1982 to 1985, respondent earned an average of $12,494 in this job, leaving him under the 80% limit for entitlement to continued annuity payments. In 1986, however, he had an opportunity to earn extra money by working overtime. Respondent asked an Employee Relations Specialist at the Navy Public Works Center's Civilian Personnel Department for information about how much he could earn without exceeding the 80% eligibility limit. Relying upon the terms of the repealed pre-1982 statute, under which respondent could retain the annuity unless his income exceeded the 80% limit in two consecutive years, the specialist gave respondent incorrect advice. The specialist also gave respondent a copy of Attachment 4 to Federal Personnel Manual Letter 831-64, published by petitioner OPM, which also stated the former 2-year eligibility rule. The OPM form was correct when written in 1981, but, when given to respondent, the Page 496 U. S. 418 form was out of date and therefore inaccurate. Respondent returned to the Navy in January, 1987, and again was advised in error that eligibility would be determined under the old 2-year rule.After receiving the erroneous information, respondent concluded that he could take on the extra work as a school bus driver in 1986 while still receiving full disability benefits for impaired vision so long as he kept his income for the previous and following years below the statutory level. He earned $19,936 during 1986, exceeding the statutory eligibility limit. OPM discontinued respondent's disability annuity on June 30, 1987. The annuity was restored on January 1, 1988, since respondent did not earn more than allowed by the statute in 1987. Respondent thus lost his disability payments for a 6-month period, for a total amount of $3,993.Respondent appealed the denial of benefits to the Merit Systems Protection Board (MSPB). He argued that the erroneous advice given him by the Navy personnel should estop OPM and bar its finding him ineligible for benefits under the statute. The MSPB rejected this argument, noting that the officials who misinformed respondent were from the Navy, not OPM. The MSPB observed that, "[h]ad [respondent] directed his request for information to the OPM, presumably, he would have learned of the change in the law." The MSPB held that "OPM cannot be estopped from enforcing a statutorily imposed requirement for retirement eligibility." App. to Pet. for Cert. 22a. The MSPB denied respondent's petition for review, and respondent appealed to the Court of Appeals for the Federal Circuit.A divided panel of the Court of Appeals reversed, accepting respondent's contention that the misinformation from Navy personnel estopped the Government, and that the estoppel required payment of disability benefits despite the statutory provision to the contrary. The Court of Appeals acknowledged the longstanding rule that"ordinarily the government may not be estopped because of erroneous or unauthorized Page 496 U. S. 419 statements of government employees when the asserted estoppel would nullify a requirement prescribed by Congress."862 F.2d 294, 296 (CA Fed.1988). Nonetheless, the Court of Appeals focused on this Court's statement in an earlier case that "we are hesitant . . . to say that there are no cases " where the Government might be estopped. Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 467 U. S. 60 (1984). The Court of Appeals then discussed other Circuit and District Court opinions that had applied estoppel against the Government.The Court of Appeals majority decided that"[b]ased on the Supreme Court's acknowledgment that the estoppel against the government is not foreclosed and based on court of appeals rulings applying estoppel against the government, our view is that estoppel is properly applied against the government in the present case."862 F.2d at 299. The Court reasoned that the provision of the out-of-date OPM form was "affirmative misconduct" that should estop the Government from denying respondent benefits in accordance with the statute. The facts of this case, it held, are "sufficiently unusual and extreme that no concern is warranted about exposing the public treasury to estoppel in broad or numerous categories of cases." Id. at 301. Judge Mayer dissented, stating that the majority opinion made "a chasm out of the crack the Supreme Court left open in Community Health Services," and that the award of benefits to respondent "contravenes the express mandate of Congress in 5 U.S.C. § 8337(d) . . . and Supreme Court precedent." Id. at 301, 303.We granted certiorari, 493 U.S. 806 (1989).IIFrom our earliest cases, we have recognized that equitable estoppel will not lie against the Government as against private litigants. In Lee v. Munroe & Thornton, 7 Cranch 366 (1813), we held that the Government could not be bound Page 496 U. S. 420 by the mistaken representations of an agent unless it were clear that the representations were within the scope of the agent's authority. In The Floyd Acceptances, 7 Wall. 666 (1869), we held that the Government could not be compelled to honor bills of exchange issued by the Secretary of War where there was no statutory authority for the issuance of the bills. In Utah Power & Light Co. v. United States, 243 U. S. 389, 243 U. S. 408-409 (1917), we dismissed the argument that unauthorized representations by agents of the Government estopped the United States to prevent erection of power houses and transmission lines across a public forest in violation of a statute:"Of this it is enough to say that the United States is neither bound nor estopped by the acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit."The principles of these and many other cases were reiterated in Federal Crop Insurance Corporation v. Merrill, 332 U. S. 380 (1947), the leading case in our modern line of estoppel decisions. In Merrill, a farmer applied for insurance under the Federal Crop Insurance Act to cover his wheat farming operations. An agent of the Federal Crop Insurance Corporation advised the farmer that his entire crop qualified for insurance, and the farmer obtained insurance through the Corporation. After the crop was lost, it was discovered that the agent's advice had been in error, and that part of the farmer's crop was reseeded wheat, not eligible for federal insurance under the applicable regulation. While we recognized the serious hardship caused by the agent's misinformation, we nonetheless rejected the argument that his representations estopped the Government to deny insurance benefits. We recognized that "not even the temptations of a hard case" will provide a basis for ordering recovery contrary to the terms of the regulation, for to do so would disregard "the duty of all courts to observe the conditions defined by Congress for charging the public treasury." Id. at 332 U. S. 385-386. Page 496 U. S. 421Despite the clarity of these earlier decisions, dicta in our more recent cases have suggested.the possibility that there might be some situation in which estoppel against the Government could be appropriate. The genesis of this idea appears to be an observation found at the end of our opinion in Montana v. Kennedy, 366 U. S. 308 (1961). In that case, the petitioner brought a declaratory judgment action seeking to establish his American citizenship. After discussing the petitioner's two statutory claims at length, we rejected the final argument that a consular official's erroneous advice to petitioner's mother that she could not return to the United States while pregnant prevented petitioner from having been born in the United States, and thus deprived him of United States citizenship. Our discussion was limited to the observation that, in light of the fact that no legal obstacle prevented petitioner's mother from returning to the United States,"what may have been only the consular official's well-meant advice -- 'I am sorry, Mrs., you cannot [return to the United States] in that condition' -- falls far short of misconduct such as might prevent the United States from relying on petitioner's foreign birth. In this situation, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials."Id. at 366 U. S. 314-315.The proposition about which we did not "stop to inquire" in Kennedy has since taken on something of a life of its own. Our own opinions have continued to mention the possibility, in the course of rejecting estoppel arguments, that some type of "affirmative misconduct" might give rise to estoppel against the Government. See INS v. Hibi, 414 U. S. 5, 414 U. S. 8 (1973) (per curiam) ("While the issue of whether affirmative misconduct' on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U. S. 308, 366 U. S. 314, 366 U. S. 315, no conduct of the sort Page 496 U. S. 422 there adverted to was involved here."); Schweiker v. Hansen, 450 U. S. 785, 450 U. S. 788 (1981) (per curiam) (denying an estoppel claim for Social Security benefits on the authority of Merrill, supra, but observing that the Court "has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits"); INS v. Miranda, 459 U. S. 14, 459 U. S. 19 (1982) (per curiam ) ("This case does not require us to reach the question we reserved in Hibi, whether affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws."); Heckler v. Community Health Services, 467 U.S. at 467 U. S. 60 ("We have left the issue open in the past, and do so again today.").The language in our decisions has spawned numerous claims for equitable estoppel in the lower courts. As Justice MARSHALL stated in dissent in Hansen, supra,"[t]he question of when the Government may be equitably estopped has divided the distinguished panel of the Court of Appeals in this case, has received inconsistent treatment from other Courts of Appeals, and has been the subject of considerable ferment."450 U.S. at 450 U. S. 791 (citing cases). Since that observation was made, federal courts have continued to accept estoppel claims under a variety of rationales and analyses. In sum, courts of appeals have taken our statements as an invitation to search for an appropriate case in which to apply estoppel against the Government, yet we have reversed every finding of estoppel that we have reviewed. Indeed, no less than three of our most recent decisions in this area have been summary reversals of decisions upholding estoppel claims. See Hibi, supra; Hansen, supra; Miranda, supra. Summary reversals of courts of appeals are unusual under any circumstances. The extraordinary number of such dispositions in this single area of the law provides a good indication that our approach to these cases has provided inadequate Page 496 U. S. 423 guidance for the federal courts and served only to invite and prolong needless litigation.The Solicitor General proposes to remedy the present confusion in this area of the law with a sweeping rule. As it has in the past, the Government asks us to adopt "a flat rule that estoppel may not in any circumstances run against the Government." Community Health Services, supra, 467 U.S. at 467 U. S. 60. The Government bases its broad rule first upon the doctrine of sovereign immunity. Noting that the "United States, as sovereign, is immune from suit save as it consents to be sued," United States v. Mitchell, 445 U. S. 535, 445 U. S. 538 (1980), the Government asserts that the courts are without jurisdiction to entertain a suit to compel the Government to act contrary to a statute, no matter what the context or circumstances. See Brief for Petitioner 12-13. The Government advances as a second basis for this rule the doctrine of separation of powers. The Government contends that to recognize estoppel based on the misrepresentations of Executive Branch officials would give those misrepresentations the force of law, and thereby invade the legislative province reserved to Congress. This rationale, too, supports the Government's contention that estoppel may never justify an order requiring executive action contrary to a relevant statute, no matter what statute or what facts are involved.We have recognized before that the "arguments the Government advances for the rule are substantial." Community Health Services, supra, 467 U.S. at 467 U. S. 60. And we agree that this case should be decided under a clearer form of analysis than "we will know an estoppel when we see one." Hansen, supra, at 450 U. S. 792 (MARSHALL, J., dissenting). But it remains true that we need not embrace a rule that no estoppel will lie against the Government in any case in order to decide this case. We leave for another day whether an estoppel claim could ever succeed against the Government. A narrower ground of decision is sufficient to address the type of suit presented here, Page 496 U. S. 424 a claim for payment of money from the Public Treasury contrary to a statutory appropriation.IIIThe Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, provides' that: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." For the particular type of claim at issue here, a claim for money from the Federal Treasury, the Clause provides an explicit rule of decision. Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute. All parties here agree that the award respondent seeks would be in direct contravention of the federal statute upon which his ultimate claim to the funds must rest, 5 U.S.C. § 8337. The point is made clearer when the appropriation supporting the benefits sought by respondent is examined. In the same subchapter of the United States Code as the eligibility requirements, Congress established the Civil Service Retirement and Disability Fund. 5 U.S.C. § 8348. That section states in pertinent part: "The Fund . . . is appropriated for the payment of . . . benefits as provided by this subchapter . . ." (emphasis added). The benefits respondent claims were not "provided by" the relevant provision of the subchapter; rather, they were specifically denied. It follows that Congress has appropriated no money for the payment of the benefits respondent seeks, and the Constitution prohibits that any money "be drawn from the Treasury" to pay them.Our cases underscore the straightforward and explicit command of the Appropriations Clause. "It means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress." Cincinnati Soap Co. v. United States, 301 U. S. 308, 301 U. S. 321 (1937) (citing Reeside v. Walker, 11 How. 272, 52 U. S. 291 (1851)). In Reeside, supra, we addressed a claim brought by the holder of a judgment of indebtedness against the United States that the Secretary of Page 496 U. S. 425 the Treasury of the United States should be ordered to enter the claim upon the books of the Treasury so that the debt might be paid. In rejecting the petitioner's claim for relief, we stated as an alternative ground for decision that, if"the petition in this case was allowed so far as to order the verdict against the United States to be entered on the books of the Treasury Department, the plaintiff would be as far from having a claim on the Secretary or Treasurer to pay it as now. The difficulty in the way is the want of any appropriation by Congress to pay this claim. It is a well-known constitutional provision that no money can be taken or drawn from the Treasury except under an appropriation by Congress. See Constitution, art. 1, § 9 (1 Stat. at Large, 15).""However much money may be in the Treasury at any one time, not a dollar of it can be used in payment of anything not thus previously sanctioned. Any other course would give to the fiscal officers a most dangerous discretion."Id. at 52 U. S. 291.The command of the Clause is not limited to the relief available in a judicial proceeding seeking payment of public funds. Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury. We have held, for example, that while the President's pardon power may remove all disabilities from one convicted of treason, that power does not extend to an order to repay from the Treasury the proceeds derived from the sale of the convict's forfeited property:"So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law. However large, therefore, Page 496 U. S. 426 may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers -- it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress."Knote v. United States, 95 U. S. 149, 95 U. S. 154 (1877). Just as the pardon power cannot override the command of the Appropriations Clause, so too judicial use of the equitable doctrine of estoppel cannot grant respondent a money remedy that Congress has not authorized. See INS v. Pangilinan, 486 U. S. 875 486 U. S. 883 (1988) ("Courts of equity can no more disregard statutory and constitutional requirements than can courts of law'").We have not had occasion in past cases presenting claims of estoppel against the Government to discuss the Appropriations Clause, for reasons that are apparent. Given the strict rule against estoppel applied as early as 1813 in Lee v. Munroe & Thornton, 7 Cranch 366 (1813), claims of estoppel could be dismissed on that ground without more. In our cases following Montana v. Kennedy, 366 U. S. 308 (1961), reserving the possibility that estoppel might lie on some facts, we have held only that the particular facts presented were insufficient. As discussed above, supra at 496 U. S. 423-424, we decline today to accept the Solicitor General's argument for an across-the-board no-estoppel rule. But this makes it all the more important to state the law and to settle the matter of estoppel as a basis for money claims against the Government.Our decision is consistent with both the holdings and the rationale expressed in our estoppel precedents. Even our recent cases evince a most strict approach to estoppel claims involving public funds. See Community Health Services, 467 U.S. at 467 U. S. 63 ("Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law"). The course of our jurisprudence shows why: Opinions have differed on whether this Court has ever accepted an estoppel claim in other contexts, see id. Page 496 U. S. 427 at 467 U. S. 60 (suggesting that United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655 (1973) (PICCO) was decided on estoppel grounds); id., 467 U.S. at 467 U. S. 68 (opinion of REHNQUIST, J.) (PICCO not an estoppel case), but not a single case has upheld an estoppel claim against the Government for the payment of money. And our cases denying estoppel are animated by the same concerns that prompted the Framers to include the Appropriations Clause in the Constitution. As Justice Story described the Clause,"The object is apparent upon the slightest examination. It is to secure regularity, punctuality, and fidelity in the disbursements of the public money. As all the taxes raised from the people, as well as revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper that congress should possess the power to decide how and when any money should be applied for these purposes. If it were otherwise, the executive would possess an unbounded power over the public purse of the nation, and might apply all its moneyed resources at his pleasure. The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation. . . ."2 J. Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858).The obvious practical consideration cited by Justice Story for adherence to the requirement of the Clause is the necessity, existing now as much as at the time the Constitution was ratified, of preventing fraud and corruption. We have long ago accepted this ground as a reason that claims for estoppel cannot be entertained where public money is at stake, refusing to "introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself." Lee, 7 Cranch at 11 U. S. 370. But the Clause has a more fundamental and comprehensive purpose, of direct relevance Page 496 U. S. 428 to the case before us. It is to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good, and not according to the individual favor of Government agents or the individual pleas of litigants.Extended to its logical conclusion, operation of estoppel against the Government in the context of payment of money from the Treasury could in fact render the Appropriations Clause a nullity. If agents of the Executive were able, by their unauthorized oral or written statements to citizens, to obligate the Treasury for the payment of funds, the control over public funds that the Clause reposes in Congress in effect could be transferred to the Executive. If, for example, the President or Executive Branch officials were displeased with a new restriction on benefits imposed by Congress to ease burdens on the fisc (such as the restriction imposed by the statutory change in this case) and sought to evade them, agency officials could advise citizens that the restrictions were inapplicable. Estoppel would give this advice the practical force of law, in violation of the Constitution.It may be argued that a rule against estoppel could have the opposite result, that the Executive might frustrate congressional intent to appropriate benefits by instructing its agents to give claimants erroneous advice that would deprive them of the benefits. But Congress may always exercise its power to expand recoveries for those who rely on mistaken advice should it choose to do so. In numerous other contexts where Congress has been concerned at the possibility of significant detrimental reliance on the erroneous advice of Government agents, it has provided appropriate legislative relief. See, e.g., Federal Election Campaign Act of 1971, 2 U.S.C. §§ 437f and 438(e); Federal Trade Commission Act, 15 U.S.C. § 57b-4; Securities Act of 1933, 15 U.S.C. § 77s(a); Truth in Lending Act, 15 U.S.C. § 1640(f); Portal-to-Portal Act of 1947, 29 U.S.C. § 259; Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1028; Technical Page 496 U. S. 429 and Miscellaneous Revenue Act of 1988, Pub.L. 100-647, § 8018, 102 Stat. 3794.One example is of particular relevance. In Schweiker v. Hansen, 450 U. S. 785 (1981), we rejected an estoppel claim made by a Social Security claimant who failed to file a timely written application for benefits as required by the relevant statute. Congress then addressed such situations in the Budget Reconciliation Act of 1989 by providing that, for claims to old age, survivors, and disability insurance, and for supplemental security income,"In any case in which it is determined to the satisfaction of the Secretary that an individual failed as of any date to apply for monthly insurance benefits under this title by reason of misinformation provided to such individual by any officer or employee of the Social Security Administration relating to such individual's eligibility for benefits under this title, such individual shall be deemed to have applied for such benefits on the later of [the date on which the misinformation was given or the date upon which the applicant became eligible for benefits apart from the application requirement]."Pub.L. 101-239, § 10302, 103 Stat. 2481. The equities are the same whether executive officials' erroneous advice has the effect of frustrating congressional intent to withhold funds or to pay them. In the absence of estoppel for money claims, Congress has ready means to see that payments are made to those who rely on erroneous Government advice. Judicial adoption of estoppel based on agency misinformation would, on the other hand, vest authority in these agents that Congress would be powerless to constrain.The provisions of the Federal Torts Claims Act (FICA), 28 U.S.C. §§ 1346(b), 2671 et seq., also provide a strong indication of Congress' general approach to claims based on governmental misconduct, and suggest that it has considered and rejected the possibility of an additional exercise of its appropriation power to fund claims similar to those advanced here. Page 496 U. S. 430 The FTCA provides authorization in certain circumstances for suits by citizens against the Federal Government for torts committed by Government agents. Yet the FTCA by its terms excludes both negligent and intentional misrepresentation claims from its coverage. See 28 U.S.C. § 2680(h). The claim brought by respondent is in practical effect one for misrepresentation, despite the application of the "estoppel" label. We would be most hesitant to create a judicial doctrine of estoppel that would nullify a congressional decision against authorization of the same class of claims.Indeed, it would be most anomalous for a judicial order to require a Government official, such as the officers of petitioner OPM, to make an extrastatutory payment of federal funds. It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress. See 31 U.S.C. §§ 1341, 1350. If an executive officer on his own initiative had decided that, in fairness, respondent should receive benefits despite the statutory bar, the official would risk prosecution. That respondent now seeks a court order to effect the same result serves to highlight the weakness and novelty of his claim.The whole history and practice with respect to claims against the United States reveals the impossibility of an estoppel claim for money in violation of a statute. Congress' early practice was to adjudicate each individual money claim against the United States, on the ground that the Appropriations Clause forbade even a delegation of individual adjudicatory functions where payment of funds from the treasury was involved. See W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, A History, 216 Ct.CI. 1, 5 (1978). As the business of the federal legislature has grown, Congress has placed the individual adjudication of claims based on the Constitution, statutes, or contracts, or on specific authorizations of suit against the Government, with the Judiciary. See, e.g., the Tucker Act, 28 U.S.C. Page 496 U. S. 431 §§ 1346, 1491. But Congress has always reserved to itself the power to address claims of the very type presented by respondent, those founded not on any statutory authority, but upon the claim that "the equities and circumstances of a case create a moral obligation on the part of the Government to extend relief to an individual." Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, Supplemental Rules of Procedure for Private Claims Bills, 101st Cong., 1st Sess., 2 (Comm. Print 1989).In so-called "congressional reference" cases, Congress refers proposed private bills to the United States Claims Court for an initial determination of the merits of the claim, but retains final authority over the ultimate appropriation. See 28 U.S.C. §§ 1492, 2509(c). Congress continues to employ private legislation to provide remedies in individual cases of hardship. See, e.g., Priv.L. 99-3, 100 Stat. 4314, and 131 Cong.Rec. 9675 (1985) (waiving statutory deadline under 5 U.S.C. § 8337(d) where petitioner failed to make timely application due to misinformation of government personnel officer); Priv.L. 100-37 (Nov. 9, 1988), and H.R.Rep. No. 291, 100th Cong., 1st Sess. (1987) (awarding funds lost by servicemen who joined wrong retirement plan in reliance on erroneous advice). Where sympathetic facts arise, cf. post at 496 U. S. 435-436 (opinion of STEVENS, J.), these examples show the means by which they can be addressed. In short, respondent asks us to create by judicial innovation an authority over funds that is assigned by the Constitution to Congress alone, and that Congress has not seen fit to delegate.Congress has, of course, made a general appropriation of funds to pay judgments against the United States rendered under its various authorizations for suits against the Government, such as the Tucker Act and the FTCA. See 31 U.S.C. § 1304. But respondent's claim for relief does not arise under any of these provisions. Rather, he sought and obtained Page 496 U. S. 432 an order of enrollment in the disability annuity plan, 5 U.S.C. § 8337, in direct violation of that plan's requirements. See 862 F.2d at 301 (remanding respondent's case to the MSPs "with instructions to direct the agency to issue the withheld disability benefits to Mr. Richmond").The general appropriation for payment of judgments, in any event, does not create an all-purpose fund for judicial disbursement. A law that identifies the source of funds is not to be confused with the conditions prescribed for their payment. Rather, funds may be paid out only on the basis of a judgment based on a substantive right to compensation based on the express terms of a specific statute. This principle is set forth in our leading case on jurisdiction over claims against the Government, United States v. Testan, 424 U. S. 392 (1976). As stated in Justice BLACKMUN'S opinion for the Court,"Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim -- whether it be the Constitution, a statute, or a regulation -- does not create a cause of action for money damages unless . . . that basis 'in itself . . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'"Id. at 424 U. S. 401-402. Given this rule, as well as our many precedents establishing that authorizations for suits against the Government must be strictly construed in its favor, see, e.g., Library of Congress v. Shaw, 478 U. S. 310, 478 U. S. 318 (1986); McMahon v. United States, 342 U. S. 25, 342 U. S. 27 (1951), we cannot accept the suggestion, post at 496 U. S. 438-440 (opinion of MARSHALL, J.) that the terms of a statute should be ignored based on the facts of individual cases. Here the relevant statute, by its terms, excludes respondent's claim, and his remedy must lie with Congress.Respondent would have us ignore these obstacles on the ground that estoppel against the Government would have beneficial effects. But we are unwilling to"tamper with Page 496 U. S. 433 these established principles because it might be thought that they should, be responsive to a particular conception of enlightened governmental policy."Testan, supra, 424 U.S. at 424 U. S. 400. And respondent's attempts to justify estoppel on grounds of public policy are suspect on their own terms. Even short of collusion by individual officers or improper Executive attempts to frustrate legislative policy, acceptance of estoppel claims for Government funds could have pernicious effects. It ignores reality to expect that the Government will be able to "secure perfect performance from its hundreds of thousands of employees scattered throughout the continent." Hansen v. Harris, 619 F.2d 942, 954 (CA2 1980) (Friendly, J., dissenting), rev'd sub nom. Schweiker v. Hansen, 450 U. S. 785 (1981). To open the door to estoppel claims would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc. Even if most claims were rejected in the end, the burden of defending such estoppel claims would itself be substantial.Also questionable is the suggestion that, if the Government is not bound by its agents' statements, then citizens will not trust them, and will instead seek private advice from lawyers, accountants and others, creating wasteful expenses. Although mistakes occur, we may assume with confidence that Government agents attempt conscientious performance of their duties, and in most cases provide free and valuable information to those who seek advice about Government programs. A rule of estoppel might create not more reliable advice, but less advice. See Hansen, supra, at 450 U. S. 788-789, and n. 5. The natural consequence of a rule that made the Government liable for the statements of its agents would be a decision to cut back and impose strict controls upon Government provision of information in order to limit liability. Not only would valuable informational programs be lost to the public, but the greatest impact of this loss would fall on those of limited means, who can least afford the alternative of Page 496 U. S. 434 private advice. See Braunstein, In Defense of a Traditional Immunity -- Toward an Economic Rationale for Not Estopping the Government, 14 Rutgers L.J. 1 (1982). The inevitable fact of occasional individual hardship cannot undermine the interest of the citizenry as a whole in the ready availability of Government information. The rationale of the Appropriations Clause is that, if individual hardships are to be remedied by payment of Government funds, it must be at the instance of Congress.Respondent points to no authority in precedent or history for the type of claim he advances today. Whether there are any extreme circumstances that might support estoppel in a case not involving payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that this Court has never upheld an assertion of estoppel against the Government by a claimant seeking public funds. In this context, there can be no estoppel, for courts cannot estop the Constitution. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtOPM v. Richmond, 496 U.S. 414 (1990)Office of Personnel Management v. RichmondNo. 88-1943Argued Feb. 21, 1990Decided June 11, 1990496 U.S. 414SyllabusNot wishing to exceed a statutory limit on earnings that would disqualify him from continuing to receive a disability annuity based on his years of civilian service with the Navy, respondent Richmond sought advice from Navy employee relations personnel and received erroneous oral and written information. When Richmond's reliance on the information caused him to earn more than permitted by the relevant statute, petitioner, the Office of Personnel Management (OPM), denied him six months of benefits. The Merit Systems Protection Board denied his petition for review, rejecting his contention that the erroneous advice given him should estop OPM and bar its finding him ineligible for benefits under the statute. The Court of Appeals reversed, ruling that the misinformation estopped the Government, and that the estoppel required payment of benefits despite the statutory provision to the contrary.Held: Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee to a benefit claimant cannot estop the Government from denying benefits not otherwise permitted by law. Pp. 496 U. S. 419-434.(a) Although dicta in some recent cases -- e.g., Montana v. Kennedy, 366 U. S. 308, 366 U. S. 314-315; INS v. Hibi, 414 U. S. 5, 414 U. S. 8 (per curiam) -- have suggested, contrary to the Court's long-recognized rule, that there might be situations in which employee misconduct could give rise to estoppel against the Government, the Court has reversed, often summarily, every lower court finding of estoppel it has reviewed. The Court need not, however, address the Government's suggestion that, in order to avoid confusion in this area, the Court should adopt a flat rule that no estoppel will ever lie against the Government under any circumstances. A narrower ground of decision controls the type of suit presented in this case. Pp. 496 U. S. 419-424.(b) A claim for payment of money from the Public Treasury contrary to a statutory appropriation is prohibited by the Appropriations Clause of the Constitution, Art. I, § 9, cl. 7, which provides in effect that such money may be paid out only as authorized by a statute. Thus, judicial use of the equitable doctrine of estoppel cannot grant respondent a Page 496 U. S. 415 money remedy that Congress has not authorized. Recognition of equitable estoppel could render the Appropriations Clause a nullity if agents of the Executive were able, by their unauthorized oral or written statements to citizens, to obligate the Treasury contrary to the wishes of Congress. Where Congress wishes to recognize claims for estoppel, it knows how to do so, as it has done by statute in the past. Pp. 496 U. S. 424-429.(c) This decision is supported by the Court's estoppel precedents, which have never upheld an estoppel claim against the Government for the payment of money; by provisions of the Federal Tort Claims Act (FTCA), which authorize private suits against the Government based on its agents' torts, but exclude misrepresentation claims similar to Richmond's; and by Congress' historical and continuing practice of reserving to itself the power to address hardship claims arising from misinformation or erroneous advice given by Government officials. Although Congress has made a general appropriation of funds to pay judgments against the Government under the FTCA and other statutory authorizations for suits against the Government, none of those provisions encompass, or authorize payment for, Richmond's claim. A rule of estoppel would invite endless litigation over both real and imagined claims of misinformation, imposing an unpredictable and substantial drain on the public fisc, and might prompt the Government, in order to limit liability, to cut back and impose strict controls on the free and valuable information it now provides to the public. Pp. 496 U. S. 429-434.862 F.2d 294 (CA Fed.1988), reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 496 U. S. 434. STEVENS, J., filed an opinion concurring in the judgment, post, p. 496 U. S. 435. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 496 U. S. 437.

2002_01-1209

sales of products in a broadly defined SIC category is not arbitrary. It provides consistent treatment for cost items used in computing the taxpayer's domestic taxable income and CTI; and its allocation of R&D expenditures to all products in a category even when specifically intended to improve only one or a few of those products is no more tenuous than the allocation of a chief executive officer's salary to every product that a company sells even when he devotes virtually all of his time to the development of the Edsel. Reading § 994 in light of § 861, the more general provision dealing with the distinction between domestic and foreign source income, does not support Boeing's contrary view. If the Secretary reasonably determines that Company Sponsored R&D can be properly apportioned on a categorical basis, the portion of § 861(b) that deducts from gross income "a ratable part of any expenses ... which cannot definitely be allocated to some item or class of gross income" is inapplicable. Pp. 446-451.(b) Boeing's arguments based on specific DISC regulations are also unavailing. Language in 26 CFR § 1.994-1(c)(6)(iii), part of the rule describing CTI computation, does not prohibit a ratable allocation of R&D expenditures that can be "definitely related" to particular export sales. Whether such an expense can be "definitely related" is determined by the rules set forth in the very rule that Boeing challenges, § 1.861-8. Moreover, the Secretary could reasonably determine that expenditures on model 767 research conducted in years before any 767's were sold were not "definitely related" to any sales, but should be treated as an indirect cost of producing the gross income derived from the sale of all planes in the transportation equipment category. Nor do §§ 1.994-1(c)(7)(i) and (ii)(a), which control grouping of transactions for determining the transfer price of sales of export property, and § 1.9941(c)(6)(iv), which governs the grouping of receipts when the CTI method is used, speak to the questions whether or how research costs should be allocated and apportioned. Pp.451-455.(c) What little relevant legislative history there is in this suit weighs in the Government's favor. Pp. 455-457.258 F.3d 958, affirmed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 457.Kenneth S. Geller argued the cause for petitioners in No. 01-1209 and respondents in No. 01-1382. With him on440the briefs were Charles Rothfeld, David M. Gossett, Alan 1. Horowitz, Joel v: Williamson, Wayne S. Kaplan, Roger J. Jones, Patricia Anne Yurchak, Marjorie M. Margolies, and John B. Magee.Kent L. Jones argued the cause for the United States in both cases. With him on the brief were Solicitor General Olson, Assistant Attorney General O'Connor, Deputy Solicitor General Wallace, David English Carmack, and Frank P. Cihlar.tJUSTICE STEVENS delivered the opinion of the Court. This suit concerns tax provisions enacted by Congress in 1971 to provide incentives for domestic manufacturers to increase their exports and in 1984 to limit and modify those incentives. The specific question presented involves the interpretation of a Treasury Regulation (26 CFR § 1.8618(e)(3) (1979)) promulgated in 1977 that governs the accounting for research and development (R&D) expenses under both statutory schemes.1 We shall explain the general outlines of the two statutes before we focus on that regulation.The 1971 statute provided special tax treatment for export sales made by an American manufacturer through a subsidiary that qualified as a "domestic international sales corporation" (DISC).2 The DISC itself is not a taxpayer; a portion of its income is deemed to have been distributed to its shareholders, and the shareholders must pay taxes on that portion,tBriefs of amici curiae urging reversal were filed for Caterpillar, Inc., et al. by C. David Swenson; for the National Foreign Trade Council, Inc., by Stephen D. Gardner; and for the Tax Executives Institute, Inc., by Fred1 In 1996, the provisions of 26 CFR § 1.861-8 were amended, renumbered, and republished as 26 CFR § 1.861-17. See 26 CFR § 1.861-17 (2002); see also 60 Fed. Reg. 66503 (1995).2 To qualify as a DISC, at least 95 percent of a corporation's gross receipts must arise from qualified export receipts. See 26 U. S. C. § 992(a)(1)(A). In addition, at least 95 percent of the corporation's assets must be export related. See § 992(a)(1)(B).441but no tax is payable on the DISC's retained income until it is actually distributed. See 26 U. S. C. §§ 991-997. Typically, "a DISC is a wholly owned subsidiary of a U. S. corporation." 1 Senate Finance Committee, Deficit Reduction Act of 1984, 98th Cong., p. 630, n. 1 (Comm. Print 1984) (hereinafter Committee Print). The statute thus provides an incentive to maximize the DISC's share-and to minimize the parent's share-of the parties' aggregate income from export sales.The DISC statute does not, however, allow the parent simply to assign all of the profits on its export sales to the DISC. Rather, "to avoid granting undue tax advantages," 3 the statute provides three alternative ways in which the parties may divert a limited portion of taxable income from the parent to the DISC. See 26 U. S. C. §§ 994(a)(1)-(3). Each of the alternatives assumes that the parent has sold the product to the DISC at a hypothetical "transfer price" that produced a profit for both seller and buyer when the product was resold to the foreign customer. The alternative used by Boeing in this suit limited the DISC's taxable income to a little over half of the parties' "combined taxable income" (CTI).43 S. Rep. No. 92-437, p. 13 (1971) (hereinafter S. Rep.).4 To be more precise, it allowed the DISC "to derive taxable income attributable to [an export sale] in an amount which does not exceed ... 50 percent of the combined taxable income of [the DISC and the parent] plus 10 percent of the export promotion expenses of such DISC attributable to such receipts .... " 26 U. S. C. § 994(a)(2).A hypothetical example in both the House and Senate Committee Reports illustrated the computation of a transfer price of $816 based on a DISC's selling price of $1,000 and the parent's cost of goods sold of $650. The gross margin of $350 was reduced by $180 (including the DISC's promotion expenses of $90, the parent's directly related selling and administrative expenses of $60, and the parent's prorated indirect expenses of $30), to produce a CTI of $170. Half of that amount ($85) plus 10 percent of the DISC's promotion expenses ($9) gave the DISC its allowable taxable income of $94, leaving only $76 of income immediately taxable to the parent. The $184 aggregate of the two amounts attributed to the DISC (promotion expenses of $90 plus its $94 share of CTI) subtracted from the442Soon after its enactment, the DISC statute became "the subject of an ongoing dispute between the United States and certain other signatories of the General Agreement on Tariffs and Trade (GATT)" regarding whether the DISC provisions were impermissible subsidies that violated our treaty obligations. Committee Print 634. "To remove the DISC as a contentious issue and to avoid further disputes over retaliation, the United States made a commitment to the GATT Council on October 1, 1982, to propose legislation that would address the concerns of other GATT members." Id., at 634635. This ultimately resulted in the replacement of the DISC provisions in 1984 with the "foreign sales corporation" (FSC) provisions of the Code. See Deficit Reduction Act of 1984, Pub. L. 98-369, §§ 801-805,98 Stat. 985.5Unlike a DISC, an FSC is a foreign corporation, and a portion of its income is taxable by the United States. See ibid.; see also B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ~ 17.14 (5th ed. 1987). Whereas a portion of a DISC's income was tax deferred, a portion of an FSC's income is exempted from taxation. Compare 26 U. S. C. §§ 991-997 with 26 U. S. C. §§ 921, 923 (1988 ed.). Hence, under the FSC regime, as under the DISC regime, it is in the parent's interest to maximize the FSC's share of the taxable income generated by export sales. Because the differences between the DISC and FSC regimes for the most part are immaterial to this suit, the analysis in this opinion will focus mainly on the DISC provisions.6The Internal Revenue Code gives the taxpayer an election either to capitalize and amortize the costs of R&D over a period of years or to deduct such expenses currently. See$1,000 gross receipt produced the "transfer price" of $816. See S. Rep., at 108, n. 7; H. R. Rep. No. 92-533, p. 74, n. 7 (1971) (hereinafter H. R. Rep.). 5 In 2000, Congress repealed and replaced the FSC provisions with the "extraterritorial income" exclusion of 26 U. S. C. § 114.6 Two aspects of the 1984 statute that do have special significance to this suit are discussed in Part IV, infra.44326 U. S. C. § 174. The regulation at issue here, 26 CFR § 1.861-8(e)(3) (1979), deals with R&D expenditures for which the taxpayer has taken a current deduction. It tells the taxpaying parent and its DISC "what" must be treated as a cost when calculating CTI, and "how" those costs should be (a) allocated among different products and (b) apportioned between the DISC and its parent.7With respect to the "what" question, the Treasury might have adopted a broad approach defining the relevant R&D as including all of the parent's products, or a narrow approach defining the relevant R&D as all R&D directly related to a particular product being exported. Instead, the regulation includes a list of two-digit Standard Industrial Classification (SIC) categories (examples are "chemicals and allied products" and "transportation equipment"), and it requires that R&D for any product within the same category as the exported product be taken into account.8 See ibid. The regulation explains that R&D on any product "is an inherently speculative activity" that sometimes contributes unexpected benefits on other products, and "that the gross income derived from successful research and development must bear the cost of unsuccessful research and development." Ibid.With respect to the two "how" questions, the regulations use gross receipts from sales as the basis both for allocating the costs among the products within the broad R&D categories and also for apportioning those costs between the parent and the DISC. Thus, if the exported product constitutes 20 percent of the parties' total sales of all products within an7Treasury Regulation § 1.861-8 (1979) also specifies how other specific items of expense should be treated. See, e. g., 26 CFR § 1.861-8(e)(2) (1979) (interest fees); § 1.861-8(e)(5) (legal and accounting fees); § 1.8618(e)(6) (income taxes).8 The original regulation used two-digit SIC categories. See § 1.8618(e)(3). The current regulation uses narrower three-digit SIC categories, see 26 CFR § 1.861-17(a)(2)(ii) (2002), but the change is not relevant to this suit.444R&D category, 20 percent of the R&D cost is allocated to that product. And if export sales represent 70 percent of the total sales of that product, 70 percent of that amount, or 14 percent of the R&D, is apportioned to the DISC.IPetitioners (and cross-respondents) are The Boeing Company and subsidiaries that include a DISC and an FSC. For over 40 years Boeing has been a world leader in commercial aircraft development and a major exporter of commercial aircraft. During the period at issue in this litigation, the dollar volume of its sales amounted to about $64 billion, 67 percent of which were DISC-eligible export sales. The amount that Boeing spent on R&D during that period amounted to approximately $4.6 billion.During the tax years at issue here, Boeing organized its internal operations along product lines (e. g., aircraft models 727, 737, 747, 757, 767) for management and accounting purposes, each of which constituted a separate "program" within the Boeing organization. For those purposes, it divided its R&D expenses into two broad categories: "Blue Sky" and "Company Sponsored Product Development." The former includes the cost of broad-based research aimed at generally advancing the state of aviation technology and developing alternative designs of new commercial planes. The latter includes product-specific research pertaining to a specific program after the board of directors has given its approval for the production of a new model. With respect to its $1 billion of "Blue Sky" R&D, Boeing's accounting was essentially consistent with 26 CFR § 1.861-8(e)(3) (1979).9 Its9 Because all of Boeing's commercial aircraft were "transportation equipment" within the meaning of the Treasury Regulation, it properly allocated all of its Blue Sky research among all of its programs, and then apportioned those costs between the parent and the DISC. However, according to the Government, it erroneously did so on the basis of hours of direct labor rather than sales. See Brief for United States 10.445method of accounting for $3.6 billion of "Company Sponsored" R&D gave rise to this litigation.Boeing's accountants treated all of the Company Sponsored research costs as directly related to a single program, and as totally unrelated to any other program. Thus, for DISC purposes, the cost of Company Sponsored R&D directly related to the 767 model, for example, had no effect on the calculation of the "combined taxable income" produced by export sales of any other models. Moreover, because immense Company Sponsored research costs were routinely incurred while a particular model was being completed and before any sales of that model occurred, those costs effectively "disappeared" in the calculation of the CTI even for the model to which the R&D was most directly related.lO Almost half of the $3.6 billion of Company Sponsored R&D at issue in this suit was allocated to programs that had no sales in the year in which the research was conducted. That amount (approximately $1.75 billion) was deducted by Boeing currently in the calculation of its taxable income for the years at issue, but never affected the calculation of the CTI derived by Boeing and its DISC from export sales.Pursuant to an audit, the Internal Revenue Service reallocated Boeing's Company Sponsored R&D costs for the years 1979 to 1987, thereby decreasing the untaxed profits of its export subsidiaries and increasing the parent's taxable profits from export sales. Boeing paid the additional tax obligation of $419 million and filed this suit seeking a refund. Relying on the decision of the Eighth Circuit in St. Jude Medical, Inc. v. Commissioner, 34 F.3d 1394 (1994), the District Court entered summary judgment in favor of Boeing. It held that 26 CFR § 1.861-8(e)(3) (1979) is invalid as applied to DISC and FSC transactions because the regulation's cate-10 When Boeing charged R&D costs to programs that had no sales in the year the research was conducted, the R&D costs effectively "disappeared" in the sense that they were not accounted for by Boeing in computing its CTI.446gorical treatment of R&D conflicted with congressional intent that there be a "direct" relationship between items of gross income and expenses "related thereto," and with a specific DISC regulation giving the taxpayer the right to group and allocate income and costs by product or product line. The Court of Appeals for the Ninth Circuit reversed, 258 F.3d 958 (2001), and we granted certiorari to resolve the conflict between the Circuits, 535 U. S. 1094 (2002). We now affirm.IISection 861 of the Internal Revenue Code distinguishes between United States and foreign source income for several different purposes. See 26 U. S. C. § 861. The regulation at issue in this suit, 26 CFR § 1.861-8(e)(3) (1979), was promulgated pursuant to that general statute. Separate regulations promulgated under the DISC statute, 26 U. S. C. §§ 991-997, incorporate 26 CFR § 1.861-8(e)(3) (1979) by specific reference. See § 1.994-1(c)(6)(iii) (citing and incorporating the cost allocation rules of § 1.861-8). Boeing does not claim that its method of accounting for Company Sponsored R&D complied with § 1.861-8(e)(3). Rather, it argues that § 1.861-8(e)(3) is so plainly inconsistent with congressional intent and with other provisions of the DISC regulations that it cannot be validly applied to its computation of CTI for DISC purposes.Boeing argues, in essence, that the statute and certain specific regulations promulgated pursuant to 26 U. S. C. § 994 give it an unqualified right to allocate its Company Sponsored R&D expenses to the specific products to which they are "factually related" and to exclude any allocated R&D from being treated as a cost of any other product. The relevant statutory text does not support its argument.As we have already mentioned, the DISC statute gives the taxpayer a choice of three methods of determining the transfer price for an exported good. Boeing elected to use only the second method described in the following text:447"Inter-company pricing rules "(a) In general"In the case of a sale of export property to a DISC by a person described in section 482, the taxable income of such DISC and such person shall be based upon a transfer price which would allow such DISC to derive taxable income attributable to such sale (regardless of the sales price actually charged) in an amount which does not exceed the greatest of-"(1) 4 percent of the qualified export receipts on the sale of such property by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts,"(2) 50 percent of the combined taxable income of such DISC and such person which is attributable to the qualified export receipts on such property derived as the result of a sale by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts, or"(3) taxable income based upon the sale price actually charged (but subject to the rules provided in section 482)."(b) Rules for commissions, rentals, and marginal costing"The Secretary shall prescribe regulations setting forth"(2) rules for the allocation of expenditures in computing combined taxable income under subsection (a)(2) in those cases where a DISC is seeking to establish or maintain a market for export property." 26 U. S. C. §§ 994(a)(1)-(3), (b)(2) (emphasis added).The statute does not define the term "combined taxable income," nor does it specifically mention expenditures for R&D. Congress did grant the Secretary express authority to prescribe regulations for determining the proper alloca-448tion of expenditures in computing CTI in certain specific contexts. See, e. g., §§ 994(b)(1)-(2). Yet in promulgating 26 CFR § 1.861-8 (1979), the Secretary of the Treasury exercised his rulemaking authority under 26 U. S. C. § 7805(a), which gives the Secretary general authority to "prescribe all needful rules and regulations for the enforcement" of the Internal Revenue Code. See 41 Fed. Reg. 49160 (1976) ("The proposed regulations are to be issued under the authority contained in section 7805 of the Internal Revenue Code"). Even if we regard the challenged regulation as interpretive because it was promulgated under § 7805(a)'s general rulemaking grant rather than pursuant to a specific grant of authority, we must still treat the regulation with deference. See Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 560-561 (1991).The words that we have emphasized in the statutory text do place some limits on the Secretary's interpretive authority. First, the "does not exceed" phrase places an upper limit on the share of the export profits that can be assigned to a DISC and also gives the taxpayer an unfettered right to select any of the three methods of setting a "transfer price." Second, the use of the term "combined taxable income" in subsection (a)(2) makes it clear that the taxable income of the domestic parent is a part of the equation that should produce the CTI. As Boeing recognizes, even a charitable contribution to the Seattle Symphony that reduces its domestic earnings from sales of 767's must be treated as a cost that is not definitely related to any particular category of income and thus must be apportioned among all categories of income, including income from export sales. See Brief for Petitioners in No. 01-1209, p. 8, n. 7. Third, the word "attributable" places a limit on the portion of the domestic parent's taxable income that can be treated as a part of the CTI. It is this word that provides the statutory basis for Boeing's position.449Under Boeing's reading of the statute, a calculation of the domestic income "attributable" to the export sale of a 767 may include both the direct and indirect costs of manufacturing and selling 767's, but it may not include the direct costs of selling anything else. Moreover, if Boeing's accountants classify a particular cost as directly related to the 767, that classification is conclusive. Thus, while the Secretary asserts that Boeing's R&D expenses are definitely related to all income in the relevant SIC category, Boeing claims the right to divide its R&D in a way that effectively creates three segments: (1) Blue Sky; (2) Company Sponsored R&D on products that have no sales in the current year; and (3) Company Sponsored R&D on products that are being sold currently. Boeing, like the Secretary, essentially treats Blue Sky R&D as an indirect cost in computing both its domestic taxable income and its CTI. With respect to the second segment, Boeing uses the R&D to reduce its domestic taxable earnings on every product it sells, but eliminates it entirely from the calculation of CTI on any product by charging the R&D costs to programs without any sales. The third segment is used for both domestic and CTI purposes, but with respect to CTI only for the export sales to which it is "factually related."The Secretary's classification of all R&D as an indirect cost of all export sales of products in a broadly defined SIC category-in other words, as "attributable" to such sales-is surely not arbitrary. It has the virtue of providing consistent treatment for cost items used in computing the taxpayer's domestic taxable income and its CTI. Moreover, its allocation of R&D expenditures to all products in a category even when specifically intended to improve only one or a few of those products is no more tenuous than the allocation of a chief executive officer's salary to every product that a company sells even when he devotes virtually all of his time to the development of an Edsel.450On the other hand, even if Boeing's method of accounting for R&D is fully justified for management purposes, it certainly produces anomalies for tax purposes. Most obvious is the fact that it enabled Boeing to deduct some $1.75 billion of expenditures from its domestic taxable earnings under 26 U. S. C. § 174 and never deduct a penny of those expenditures from its "combined taxable earnings" under the DISC statute. See Brief for Petitioners in No. 01-1209, at 11. Less obvious, but nevertheless significant, is that Boeing's method assumed that Blue Sky research produces benefits for airplane models that are producing current income and-at the same time-assumed that Company Sponsored research related to a specific product, such as the 727, is not likely to produce benefits for other airplane models, such as the 737 or 767.11In all events, the mere use of the word "attributable" in the text of § 994 surely does not qualify the Secretary's authority to decide whether a particular tax deductible expenditure made by the parent of a DISC is sufficiently related to its export sales to qualify as an indirect cost in the computation of the parties' CTI. Boeing argues, however, that the text of § 994 should be read in light of § 861, the more general provision dealing with the distinction between domestic and foreign source income.Title 26 U. S. C. § 861(b) contains the following twosentences:"Taxable income from sources within United States "From the items of gross income specified in subsection (a) as being income from sources within the United States there shall be deducted the expenses, losses, and other deductions properly apportioned or allocated11 This assumption, of course, runs contrary to the Secretary's determination that R&D "is an inherently speculative activity" that sometimes contributes unexpected benefits on other products. 26 CFR § 1.8618(e)(3)(i)(A) (1979).451thereto and a ratable part of any expenses, losses, or other deductions which cannot definitely be allocated to some item or class of gross income. The remainder, if any, shall be included in full as taxable income from sources within the United States." (Emphasis added.)Focusing on the emphasized words, Boeing interprets this section as having created a background rule dividing all expenses into two categories: those that can be allocated to specific income and those that cannot. "Ratable" allocation is permissible for the second category, but not for the first, according to Boeing. Moreover, in Boeing's view, any expense in the first category cannot be ratably apportioned across all classes of income.There are at least two flaws in this argument. First, although the emphasized words authorize ratable apportionment of costs that cannot definitely be allocated to some item or class of income, the sentence as a whole does not prohibit ratable apportionment of expenses that could be, but perhaps in fairness should not be, treated as direct costs. Second, the Secretary has the authority to prescribe regulations determining whether an expense can be properly apportioned to an item of gross income in the calculation of CTI. See 26 U. S. C. § 7805(a). Thus, as in this suit, if the Secretary reasonably determines that Company Sponsored R&D can be properly apportioned on a categorical basis, the italicized portion of § 861 is simply inapplicable.In sum, Boeing's arguments based on statutory text are plainly insufficient to overcome the deference to which the Secretary's interpretation is entitled.IIIBoeing also advances two arguments based on the text of specific DISC regulations. The first resembles its argument based on the text of § 861, and the second relies on regulations providing that certain accounting decisions made by the taxpayer shall be controlling.452The regulations included in 26 CFR § 1.994-1 (1979) set forth intercompany pricing rules for DISCs. They generally describe the three methods of determining a transfer price, noting that the taxpayer may choose the most favorable method, and may group transactions to use one method for some export sales and another method for others. See ibid. With respect to the CTI method used by Boeing, there is a rule, § 1.994-1(c)(6), that describes the computation of CTI. The rule broadly defines the CTI of a DISC and its related supplier from a sale of export property as the excess of gross receipts over their total costs "which relate to such gross receipts." 12 Subdivision (iii) of that rule, on which Boeing relies, provides:"Costs (other than cost of goods sold) which shall be treated as relating to gross receipts from sales of export property are (a) the expenses, losses, and other deductions definitely related, and therefore allocated and ap-12 Treasury Regulation § 1.994-1(c)(6), 26 CFR § 1.994-1(c)(6) (1979), provides in part:"Combined taxable income. For purposes of this section, the combined taxable income of a DISC and its related supplier from a sale of export property is the excess of the gross receipts (as defined in section 993(f)) of the DISC from such sale over the total costs of the DISC and related supplier which relate to such gross receipts. Gross receipts from a sale do not include interest with respect to the sale. Combined taxable income under this paragraph shall be determined after taking into account under paragraph (e)(2) of this section all adjustments required by section 482 with respect to transactions to which such section is applicable. In determining the gross receipts of the DISC and the total costs of the DISC and related supplier which relate to such gross receipts, the following rules shall be applied:"(i) Subject to subdivisions (ii) through (v) of this subparagraph, the taxpayer's method of accounting used in computing taxable income will be accepted for purposes of determining amounts and the taxable year for which items of income and expense (including depreciation) are taken into account. See § 1.991-1(b)(2) with respect to the method of accounting which may be used by a DISC."453portioned, thereto, and (b) a ratable part of any other expenses, losses, or other deductions which are not definitely related to a class of gross income, determined in a manner consistent with the rules set forth in § 1.861-8." § 1.994-1(c)(6)(iii) (emphasis added).Boeing interprets the emphasized words as prohibiting a ratable allocation of R&D expenditures that can be "definitely related" to particular export sales. The obvious response to this argument is provided by the final words in the paragraph. Whether such an expense can be "definitely related" is determined by the rules set forth in the very regulation that Boeing challenges, § 1.861-8. Moreover, it seems quite clear that the Secretary could reasonably determine that expenditures on 767 research conducted in years before any 767's were sold were not "definitely related" to any sales, but should be treated as an indirect cost of producing the gross income derived from the sale of all planes in the transportation equipment category.Boeing also argues that the regulations expressly allow it to allocate and apportion R&D expenses to groups of export sales that are based on industry usage rather than SIC categories. The regulations providing the strongest support for this argument are §§ 1.994-1(c)(7)(i) and (ii)(a), which control the grouping of transactions for the purpose of determining the transfer price of sales of export property, and § 1.9941(c)(6)(iv), which governs the grouping of receipts when the CTI method of transfer pricing is used.13 Treasury Regulation § 1.994-1(c)(7) reads, in part, as follows:13 In support of its argument that §§ 1.994-1(c) and 1.861-8(e)(3) conflict, Boeing also points to various proposed regulations, including example 1 of proposed regulation § 1.861-8(g). See Brief for Petitioners in No. 011209, pp. 22-26. Unlike Boeing and the dissent, see post, at 458-459 (opinion of THOMAS, J.), we find these proposed regulations to be of little consequence given that they were nothing more than mere proposals. In 1972-when regulations governing DISCs were first proposed-the Secre-454"Grouping transactions. (i) Generally, the determinations under this section are to be made on a transactionby-transaction basis. However, at the annual choice of the taxpayer some or all of these determinations may be made on the basis of groups consisting of products or product lines."(ii) A determination by a taxpayer as to a product or a product line will be accepted by a district director if such determination conforms to anyone of the following standards: (a) A recognized industry or trade usage, or (b) the 2-digit major groups ... of the Standard Industrial Classification .... "As we understand the statutory and regulatory scheme, it gives controlling effect to three important choices by the taxpayer. First, the taxpayer may elect to deduct R&D expenses on an annual basis instead of capitalizing and amortizing those costs. See 26 U. S. C. § 174(a)(1). Second, when engaging in export transactions with a DISC, the taxpayer may choose anyone of the three methods of determining the transfer price. See § 994(a). Third, the taxpayer may decide how best to group those transactions for purposes of applying the transfer pricing methods. See 26 CFR § 1.9941(c)(7) (1979). Conceivably, the taxpayer could account for each sale separately, by product lines, or by grouping all of its export sales together. These regulations confirm the finality of the third type of choice (i. e., which groups of sales will be evaluated under one of the three alternative transfer pricing methods), but do not speak to the questions answered by the regulation at issue in this suit-namely, whether ortary made clear that the proposed regulations were suggestions only and that whatever final regulations were ultimately adopted would govern. See Technical Memorandum accompanying Notice of Proposed Rulemaking, 1972 T. M. Lexis 14, pp. *8-*9 (June 29, 1972) (providing that in determining deductible expenses, "the rules of section 861(b) and § 1.861-8 are to be applied in whatever form they ultimately take in a new notice to be prepared").455how a particular research cost should be allocated and apportioned.Nor does § 1.994-1(c)(6)(iv) support Boeing's argument.It provides that a "taxpayer's choice in accordance with subparagraph (7) of this paragraph as to the grouping of transactions shall be controlling, and costs deductible in a taxable year shall be allocated and apportioned to the items or classes of gross income of such taxable year resulting from such grouping." The regulation makes clear that if the taxpayer selects the CTI method of transfer pricing (as Boeing did), then the taxpayer may choose to group export receipts according to product lines, two-digit SIC codes, or on a transaction-by-transaction basis. Ibid. The regulation also establishes that there shall be an allocation and apportionment of all relevant costs deducted in the taxable year. Ibid. Notably, however, the regulation simply does not speak to how costs should be allocated among different items or classes of gross income and apportioned between the DISC and its parent once the taxpayer (pursuant to § 1.994-1(c)(6)) groups its gross receipts. Treasury Regulation § 1.861-8(e)(3) fills this gap by providing that R&D expenditures that are related to all income reasonably connected with the taxpayer's relevant two-digit SIC category or categories are "allocable to all items of gross income as a class ... related to such product category (or categories)." 26 CFR § 1.861-8(e)(3) (1979) (emphasis added).IVBoeing also relies heavily on legislative history, particularly on statements in Reports prepared by the tax-writing committees of the House and the Senate on the DISC statute. Those Reports are virtually identical in terms of their discussion of the DISC provisions. See H. R. Rep., at 58-95; S. Rep., at 90-129. Neither says anything about R&D costs. They both contain statements supporting the proposition that in determining how to calculate income that qualifies456for a tax benefit, the expenses to be deducted from gross income are those expenses that are "directly related" to the income. See H. R. Rep., at 74; S. Rep., at 107. Those statements are not, however, inconsistent with the proposition that particular R&D expenses may be factually related to more than one item of income, or with the proposition that the Secretary has broad authority to promulgate regulations determining which expenses are directly or indirectly related to particular items of income.If anything, what little relevant legislative history there is in this suit weighs in favor of the Government's position in two important respects. First, whereas the DISC transfer price could be set at a level that attributed over half of the CTI to the DISC, when Congress enacted the FSC provisions in 1984, it lowered the maximum allowable share of CTI attributable to an FSC to 23 percent. Compare 26 U. S. C. § 994(a)(2) with 26 U. S. C. § 925(a)(2) (1988 ed.). This dramatizes the point that even though the purpose of the DISC and FSC statutes was to provide American firms with a tax incentive to increase their exports, Congress did not intend to grant "undue tax advantages" to firms. S. Rep., at 13. Rather, the statutory formulas were designed to place ceilings on the amount of those special tax benefits. See Committee Print 636 ("[T]he income of the foreign sales corporation must be determined according to transfer prices specified in the bill: either actual prices for sales between unrelated, independent parties or, if the sales are between related parties, formula prices which are intended to comply with GATT's requirement of arm's-length prices").Second, the 1977 R&D regulation at issue in this suit had been in effect for seven years when Congress enacted the FSC provisions. Yet Congress did not legislatively override 26 CFR § 1.861-8(e)(3) (1979) in enacting the FSC provisions. In fact, although a moratorium was placed on the application of § 1.861-8(e)(3) for purposes of the sourcing of income in4571981,14 a 1984 conference agreement specified that the moratorium would "not apply for other purposes, such as the computation of combined taxable income of a DISC (or FSC) and its related supplier." H. R. Conf. Rep. No. 98-861, p. 1263 (1984). The fact that Congress did not legislatively override 26 CFR § 1.861-8(e)(3) (1979) in enacting the FSC provisions in 1984 serves as persuasive evidence that Congress regarded that regulation as a correct implementation of its intent. See Lorillard v. Pons, 434 U. S. 575, 580-581 (1978).The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 2002SyllabusBOEING CO. ET AL. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 01-1209. Argued December 9, 2002-Decided March 4, 2003*Under a 1971 statute providing special tax treatment for export sales made by an American manufacturer through a subsidiary that qualified as a "domestic international sales corporation" (DISC), no tax is payable on the DISC's retained income until it is distributed. See 26 U. S. C. §§ 991-997. The statute thus provides an incentive to maximize the DISC's share-and to minimize the parent's share-of the parties' aggregate income from export sales. The statute provides three alternative ways for a parent to divert a limited portion of its income to the DISC. See §§ 994(a)(1)-(3). The alternative that The Boeing Company chose limited the DISC's taxable income to a little over half of the parties "combined taxable income" (CTI). In 1984, the "foreign sales corporation" (FSC) provisions replaced the DISC provisions. As under the DISC regime, it is in the parent's interest to maximize the FSC's share of the taxable income generated by export sales. Because most of the differences between these regimes are immaterial to this suit, the Court's analysis focuses mainly on the DISC provisions. The Treasury Regulation at issue, 26 CFR § 1.861-8(e)(3) (1979), governs the accounting for research and development (R&D) expenses when a taxpayer elects to take a current deduction, telling the taxpaying parent and its DISC "what" must be treated as a cost when calculating CTI, and "how" those costs should be (a) allocated among different products and (b) apportioned between the DISC and its parent. With respect to the "what" question, the regulation includes a list of Standard Industrial Classification (SIC) categories (e. g., transportation equipment) and requires that R&D for any product within the same category as the exported product be taken into account. The regulations use gross receipts from sales as the basis for both "how" questions. Boeing organized its internal operations along product lines (e. g., aircraft model 767) for management and accounting purposes, each of which constituted a separate "program" within the organization; and $3.6 billion of its R&D expenses were spent on "Company Sponsored Product Development," i. e., product-specific research. Boeing's accountants treated all*Together with No. 01-1382, United States v. Boeing Sales Corp. et al., also on certiorari to the same court.438SyllabusCompany Sponsored costs as directly related to a single program and unrelated to any other program. Because nearly half of the Company Sponsored R&D at issue was allocated to programs that had no sales in the year in which the research was conducted, that amount was deducted by Boeing currently in calculating its taxable income for the years at issue, but never affected the calculation of the CTI derived by Boeing and its DISC from export sales. The Internal Revenue Service reallocated Boeing's Company Sponsored R&D costs for 1979 to 1987, thereby decreasing the untaxed profits of its export subsidiaries and increasing its taxable profits on export sales. After paying the additional taxes, Boeing filed this refund suit. In granting Boeing summary judgment, the District Court found § 1.861-8(e)(3) invalid, reasoning that its categorical treatment of R&D conflicted with congressional intent that there be a direct relationship between items of gross income and expenses related thereto, and with a specific DISC regulation giving the taxpayer the right to group and allocate income and costs by product or product line. The Ninth Circuit reversed.Held: Section 1.861-8(e)(3) is a proper exercise of the Secretary of the Treasury's rulemaking authority. Pp. 446-457.(a) The relevant statutory text does not support Boeing's argument that the statute and certain regulations give it an unqualified right to allocate its Company Sponsored R&D expenses to the specific products to which they are factually related and to exclude such R&D from treatment as a cost of any other product. The method that Boeing chose to determine an export sale's transfer price allowed the DISC "to derive taxable income attributable to [an export sale] in an amount which does not exceed ... 50 percent of the combined taxable income of [the DISC and the parent] which is attributable to the qualified export receipts on such property derived as the result of a sale by the DISC plus 10 percent of the export promotion expenses of such DISC attributable to such receipts .... " 26 U. S. C. § 994(a)(2) (emphasis added). The statute does not define "combined taxable income" or specifically mention R&D expenditures. The Secretary's regulation must be treated with deference, see Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 560561, but the statute places some limits on the Secretary's interpretive authority. First, "does not exceed" places an upper limit on the share of the export profits that can be assigned to a DISC and gives three methods of setting the transfer price. Second, "combined taxable income" makes it clear that the domestic parent's taxable income is a part of the CTI equation. Third, "attributable" limits the portion of the domestic parent's taxable income that can be treated as a part of the CTI. The Secretary's classification of all R&D as an indirect cost of all export439Full Text of Opinion

1993_93-744

nals, Inc. Philip J. Rooney filed a brief for respondent Pasqualina Santoro. tJUSTICE O'CONNOR delivered the opinion of the Court.In adjudicating benefits claims under the Black Lung Benefits Act (BLBA), 83 Stat. 792, as amended, 30 U. S. C. § 901 et seq. (1988 ed. and Supp. IV), and the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., the Department of Labor applies what it calls the "true doubt" rule. This rule essentially shifts the burden of persuasion to the party opposing the benefits claim-when the evidence is evenly balanced, the benefits claimant wins. This litigation presents the question whether the rule is consistent with § 7(c) of the Administrative Procedure Act (APA), which states that "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof." 5 U. S. C. § 556(d).IWe review two separate decisions of the Court of Appeals for the Third Circuit. In one, Andrew Ondecko applied for disability benefits under the BLBA after working as a coal miner for 31 years. The Administrative Law Judge (ALJ) determined that Ondecko had pneumoconiosis (or black lung disease), that he was totally disabled by the disease, and that the disease resulted from coal mine employment. In resolving the first two issues, the ALJ relied on the true doubt rule. In resolving the third, she relied on the rebuttable presumption that a miner with pneumoconiosis who worked in the mines for at least 10 years developed the disease be-tBriefs of amici curiae urging affirmance were filed for the American Insurance Association by William J. Kilberg, Theodore J. Boutrous, Jr., Craig A. Berrington, and Bruce C. Wood; for the National Association of Waterfront Employers et al. by Charles T. Carroll, Jr., Thomas D. Wilcox, and Franklin W Losey; and for the National Coal Association by Harold P. Quinn, Jr.270cause of his employment. 20 CFR § 718.203(b) (1993). The Department's Benefits Review Board affirmed, concluding that the ALJ had considered all the evidence, had found each side's evidence to be equally probative, and had properly resolved the dispute in Ondecko's favor under the true doubt rule. The Court of Appeals vacated the Board's decision, holding that the true doubt rule is inconsistent with the Department's own regulations under the BLBA, § 718.403, as well as with Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs, 484 U. S. 135 (1987). 990 F.2d 730 (1993).In the other case, Michael Santoro suffered a work-related back and neck injury while employed by respondent Maher Terminals. Within a few months Santoro was diagnosed with nerve cancer, and he died shortly thereafter. His widow filed a claim under the LHWCA alleging that the work injury had rendered her husband disabled and caused his death. After reviewing the evidence for both sides, the ALJ found it equally probative and, relying on the true doubt rule, awarded benefits to the claimant. The Board affirmed, finding no error in the ALJ's analysis or his application of the true doubt rule. The Court of Appeals reversed, holding that the true doubt rule is inconsistent with § 7(c) of the AP A. 992 F.2d 1277 (1993). In so holding, the court expressly disagreed with Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 988 F. 2d 706 (CA7 1993). We granted certiorari to resolve the conflict. 510 U. S. 1068 (1994).IIAs a threshold matter, we must decide whether § 7(c)'s burden of proof provision applies to adjudications under the LHWCA and the BLBA. Section 7(c) of the APA applies "[e]xcept as otherwise provided by statute," and the Department argues that the statutes at issue here make clear that § 7(c) does not apply. We disagree.271The Department points out that in conducting investigations or hearings pursuant to the LHWCA, the "Board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter." 33 U. S. C. § 923(a). But the assignment of the burden of proof is a rule of substantive law, American Dredging Co. v. Miller, 510 U. S. 443, 454 (1994), so it is unclear whether this exception even applies. More importantly, § 923 by its terms applies "except as provided by this chapter," and the chapter provides that § 7(c) does indeed apply to the LHWCA. 33 U. S. C. § 919(d) ("Notwithstanding any other provisions of this chapter, any hearing held under this chapter shall be conducted in accordance with [the AP A]"); 5 U. S. C. § 554(c)(2). We do not lightly presume exemptions to the AP A, Brownell v. Tom We Shung, 352 U. S. 180, 185 (1956), and we do not think § 923 by its terms exempts the LHWCA from § 7(c).The Department's argument under the BLBA fares no better. The BLBA also incorporates the APA (by incorporating parts of the LHWCA), but it does so "except as otherwise provided ... by regulations of the Secretary." 30 U. S. C. § 932(a). The Department argues that the following BLBA regulation so provides: "In enacting [the BLBA], Congress intended that claimants be given the benefit of all reasonable doubt as to the existence of total or partial disability or death due to pneumoconiosis." 20 CFR § 718.3(c) (1993). But we do not think this regulation can fairly be read as authorizing the true doubt rule and rejecting the APA's burden of proof provision. Not only does the regulation fail to mention the true doubt rule or § 7(c), it does not even mention the concept of burden shifting or burdens of proof. Accordingly-and assuming, arguendo, that the Department has the authority to displace § 7(c) through regulation-this ambiguous regulation does not overcome the presumption that these adjudications under the BLBA are subject to § 7(c)'s burden of proof provision.272IIIWe turn now to the meaning of "burden of proof" as used in § 7(c). Respondents contend that the Court of Appeals was correct in reading "burden of proof" to include the burden of persuasion. The Department disagrees, contending that "burden of proof" imposes only the burden of production (i. e., the burden of going forward with evidence). The cases turn on this dispute, for if respondents are correct, the true doubt rule must fall: because the true doubt rule places the burden of persuasion on the party opposing the benefits award, it would violate § 7(c)'s requirement that the burden of persuasion rest with the party seeking the award.ABecause the term "burden of proof" is nowhere defined in the AP A, our task is to construe it in accord with its ordinary or natural meaning. Smith v. United States, 508 U. S. 223, 228 (1993). It is easier to state this task than to accomplish it, for the meaning of words may change over time, and many words have several meanings even at a fixed point in time. Victor v. Nebraska, 511 U. S. 1, 13-14 (1994); see generally Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561 (1994). Here we must seek to ascertain the ordinary meaning of "burden of proof" in 1946, the year the AP A was enacted.For many years the term "burden of proof" was ambiguous because the term was used to describe two distinct concepts. Burden of proof was frequently used to refer to what we now call the burden of persuasion-the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. But it was also used to refer to what we now call the burden of production-a party's obligation to come forward with evidence to support its claim. See J. Thayer, Evidence at the Common Law 355-384 (1898) (detailing various uses of the term "burden of proof" among 19th-century English and American courts).273The Supreme Judicial Court of Massachusetts was the leading proponent of the view that burden of proof should be limited to burden of persuasion. In what became an oftcited case, Chief Justice Lemuel Shaw attempted to distinguish the burden of proof from the burden of producing evidence. Powers v. Russell, 30 Mass. 69 (1833). According to the Massachusetts court, "the party whose case requires the proof of [a] fact, has all along the burden of proof." Id., at 76. Though the burden of proving the fact remains where it started, once the party with this burden establishes a prima facie case, the burden to "produce evidence" shifts. Ibid. The only time the burden of proof-as opposed to the burden to produce evidence-might shift is in the case of affirmative defenses. Id., at 77. In the century after Powers, the Supreme Judicial Court of Massachusetts continued to carefully distinguish between the burden of proof and the burden of production. See, e. g., Smith v. Hill, 232 Mass. 188, 122 N. E. 310 (1919).Despite the efforts of the Massachusetts court, the dual use of the term continued throughout the late 19th and early 20th centuries. See 4 J. Wigmore, Evidence §§ 2486-2487, pp. 3524-3529 (1905); Thayer, supra, at 355; 1 B. Elliott & W. Elliott, Law of Evidence § 129, pp. 184-185 (1904); 2 C. Chamberlayne, Modern Law of Evidence § 936, pp. 10961098 (1911). The ambiguity confounded the treatise writers, who despaired over the "lamentable ambiguity of phrase and confusion of terminology under which our law has so long suffered." Wigmore, supra, at 3521-3522. The writers praised the "clear-thinking" efforts of courts like the Supreme Judicial Court of Massachusetts, Chamberlayne, supra, at 1097, n. 3, and agreed that the legal profession should endeavor to clarify one of its most basic terms. According to Thayer, supra, at 384-385, "[i]t seems impossible to approve a continuance of the present state of things, under which such different ideas, of great practical importance and of frequent application, are indicated by this single ambigu-274ous expression." See also Chamberlayne, supra, at 1098. To remedy this problem, writers suggested that the term "burden of proof" be limited to the concept of burden of persuasion, while some other term-such as "burden of proceeding" or "burden of evidence"-be used to refer to the concept of burden of production. Chamberlayne, supra, § 936; Elliott & Elliott, supra, at 185, n. 3. Despite the efforts at clarification, however, a dwindling number of courts continued to obscure the distinction. See Annot., 2 A. L. R. 1672 (1919) (noting that some courts still fail to properly distinguish "between the burden of proof and the duty of going forward with the evidence").This Court tried to eliminate the ambiguity in the term "burden of proof" when it adopted the Massachusetts approach. Hill v. Smith, 260 U. S. 592 (1923). Justice Holmes wrote for a unanimous Court that "it will not be necessary to repeat the distinction, familiar in Massachusetts since the time of Chief Justice Shaw, [Powers, supra], and elaborated in the opinion below, between the burden of proof and the necessity of producing evidence to meet that already produced. The distinction is now very generally accepted, although often blurred by careless speech." Id., at 594.In the two decades after Hill, our opinions consistently distinguished between burden of proof, which we defined as burden of persuasion, and an alternative concept, which we increasingly referred to as the burden of production or the burden of going forward with the evidence. See, e. g., Brosnan v. Brosnan, 263 U. S. 345, 349 (1923) (imposition of burden of proof imposes the burden of persuasion, not simply the burden of establishing a prima facie case); Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U. S. 1, 7-8 (1934) (party who bears the burden of proof "bears a heavy burden of persuasion"); Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U. S. 104, 111 (1941) (party with the burden of proof bears the "burden of persuasion," though the opposing party may bear a burden275to "go forward with evidence"); Webre Steib Co. v. Commissioner, 324 U. S. 164, 171 (1945) (claimant bears a "burden of going forward with evidence ... as well as the burden of proof") (emphasis added). During this period the Courts of Appeals also limited the meaning of burden of proof to burden of persuasion, and explicitly distinguished this concept from the burden of production. *The emerging consensus on a definition of burden of proof was reflected in the evidence treatises of the 1930's and 1940's. "The burden of proof is the obligation which rests on one of the parties to an action to persuade the trier of the facts, generally the jury, of the truth of a proposition which he has affirmatively asserted by the pleadings." W. Richardson, Evidence 143 (6th ed. 1944); see also 1 B. Jones, Law of Evidence in Civil Cases 310 (4th ed. 1938) ("The modern authorities are substantially agreed that, in its strict primary sense, 'burden of proof' signifies the duty or obligation of establishing, in the mind of the trier of facts, conviction on the ultimate issue"); J. McKelvey, Evidence 64 (4th ed. 1932) ("[T]he proper meaning of [burden of proof]" is "the duty of the person alleging the case to prove it," rather than "the duty of the one party or the other to introduce evidence").We interpret Congress' use of the term "burden of proof" in light of this history, and presume Congress intended the phrase to have the meaning generally accepted in the legal community at the time of enactment. Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992); Miles v. Apex Marine Corp., 498 U. S. 19, 32 (1990); Cannon*See, e. g., Lee v. State Bank & Trust Co., 38 F.2d 45, 48 (CA2 1930); United States v. Knoles, 75 F.2d 557, 561 (CA8 1935); Department of Water and Power of Los Angeles v. Anderson, 95 F.2d 577, 583 (CA9 1938); Rossman v. Blunt, 104 F.2d 877, 880 (CA6 1939); Cory v. Commissioner, 126 F.2d 689, 694 (CA3 1942); Commissioner v. Bain Peanut Co. of Tex., 134 F.2d 853, 860, n. 2 (CA5 1943); New York Life Ins. Co. v. Taylor, 147 F.2d 297, 301 (CADC 1945).276v. University of Chicago, 441 U. S. 677, 696-698 (1979). These principles lead us to conclude that the drafters of the AP A used the term "burden of proof" to mean the burden of persuasion. As we have explained, though the term had once been ambiguous, that ambiguity had largely been eliminated by the early 20th century. After Hill, courts and commentators almost unanimously agreed that the definition was settled. And Congress indicated that it shared this settled understanding, when in the Communications Act of 1934 it explicitly distinguished between the burden of proof and the burden of production. 47 U. S. C. §§ 309(e) and 312(d) (a party has both the "burden of proceeding with the introduction of evidence and the burden of proof"). Accordingly, we conclude that as of 1946 the ordinary meaning of burden of proof was burden of persuasion, and we understand the AP A's unadorned reference to "burden of proof" to refer to the burden of persuasion.BWe recognize that we have previously asserted the contrary conclusion as to the meaning of burden of proof in § 7(c) of the APA. In NLRB v. Transportation Management Corp., 462 U. S. 393 (1983), we reviewed the National Labor Relations Board's (NLRB's) conclusion that the employer had discharged the employee because of the employee's protected union activity. In such cases the NLRB employed a burden shifting formula typical in dual motive cases: The employee had the burden of persuading the NLRB that antiunion animus contributed to the employer's firing decision; the burden then shifted to the employer to establish as an affirmative defense that it would have fired the employee for permissible reasons even if the employee had not been involved in union activity. Id., at 401-402. The employer claimed that the NLRB's burden shifting formula was inconsistent with the National Labor Relations Act (NLRA), but we upheld it as a reasonable construction of the NLRA. Id., at 402-403.277The employer in Transportation Management argued that the NLRB's approach violated § 7(c)'s burden of proof provision, which the employer read as imposing the burden of persuasion on the employee. In a footnote, we summarily rejected this argument, concluding that "[§ 7(c)] ... determines only the burden of going forward, not the burden of persuasion. Environmental Defense Fund, Inc. v. EPA, [548 F.2d 998, 1004, 1013-1015 (CADC 1976)]." Id., at 404, n. 7. In light of our discussion in Part II-A above, we do not think our cursory conclusion in the Transportation Management footnote withstands scrutiny. The central issue in Transportation Management was whether the NLRB's burden shifting approach was consistent with the NLRA. The parties and the amici in Transportation Management treated the AP A argument as an afterthought, devoting only one or two sentences to the question. None of the briefs in the case attempted to explain the ordinary meaning of the term. Transportation Management's cursory answer to an ancillary and largely unbriefed question does not warrant the same level of deference we typically give our precedents.Moreover, Transportation Management reached its conclusion without referring to Steadman v. SEe, 450 U. S. 91 (1981), our principal decision interpreting the meaning of § 7(c). In Steadman we considered what standard of proof § 7(c) required, and we held that the proponent of a rule or order under § 7(c) had to meet its burden by a preponderance of the evidence, not by clear and convincing evidence. Though we did not explicitly state that § 7(c) imposes the burden of persuasion on the party seeking the rule or order, our reasoning strongly implied that this must be so. We assumed that burden of proof meant burden of persuasion when we said that we had to decide "the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding." Id., at 95 (emphasis added). More important, our holding that the party with the burden of proof must prove278its case by a preponderance only makes sense if the burden of proof means the burden of persuasion. A standard of proof, such as preponderance of the evidence, can apply only to a burden of persuasion, not to a burden of production.We do not slight the importance of adhering to precedent, particularly in a case involving statutory interpretation. But here our precedents are in tension, and we think our approach in Steadman makes more sense than does the Transportation Management footnote. And although we reject Transportation Management's reading of § 7(c), the holding in that case remains intact. The NLRB's approach in Transportation Management is consistent with § 7(c) because the NLRB first required the employee to persuade it that antiunion sentiment contributed to the employer's decision. Only then did the NLRB place the burden of persuasion on the employer as to its affirmative defense.CIn addition to the Transportation Management footnote, the Department relies on the Senate and House Judiciary Committee Reports on the AP A to support its claim that burden of proof means only burden of production. See Environmental Defense Fund v. EPA, 548 F. 2d, at 1014-1015 (accepting this argument), cited in Transportation Management, supra, at 404, n. 7. We find this legislative history unavailing. The Senate Judiciary Committee Report on the AP A states as follows:"That the proponent of a rule or order has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward with a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. Similarly the requirement that no sanction be imposed or rule or order be issued except upon evidence of the kind specified means that the proponents of a denial of relief must sustain such denial by279that kind of evidence. For example, credible and credited evidence submitted by the applicant for a license may not be ignored except upon the requisite kind and quality of contrary evidence. No agency is authorized to stand mute and arbitrarily disbelieve credible evidence. Except as applicants for a license or other privilege may be required to come forward with a prima facie showing, no agency is entitled to presume that the conduct of any person or status of any enterprise is unlawful or improper." S. Rep. No. 752, 79th Cong., 1st Sess., 22 (1945).The House Judiciary Committee Report contains identicallanguage, along with the following:"In other words, this section means that every proponent of a rule or order or the denial thereof has the burden of coming forward with sufficient evidence therefor; and in determining applications for licenses or other relief any fact, conduct, or status so shown by credible and credited evidence must be accepted as true except as the contrary has been shown or such evidence has been rebutted or impeached by duly credited evidence or by facts officially noticed and stated." H. R. Rep. No. 1980, 79th Cong., 2d Sess., 36 (1946).The Department argues that this legislative history indicates congressional intent to impose a burden of production on the proponent. But even if that is so, it does not mean that § 7(c) is concerned only with imposing a burden of production. That Congress intended to impose a burden of production does not mean that Congress did not also intend to impose a burden of persuasion.Moreover, these passages are subject to a natural interpretation compatible with congressional intent to impose a burden of persuasion on the party seeking an order. The primary purpose of these passages is not to define or allocate the burden of proof. The quoted passages are primarily280concerned with the burden placed on the opponent in administrative hearings ("other parties ... have a burden to maintain"), particularly where the opponent is the Government. The Committee appeared concerned with those cases in which the "proponent" seeks a license or other privilege from the Government, and in such cases did not want to allow the agency "to stand mute and arbitrarily disbelieve credible evidence." The Reports make clear that once the licensee establishes a prima facie case, the burden shifts to the Government to rebut it. This is perfectly compatible with a rule placing the burden of persuasion on the applicant, because when the party with the burden of persuasion establishes a prima facie case supported by "credible and credited evidence," it must either be rebutted or accepted as true.The legislative history the Department relies on is imprecise and only marginally relevant. Congress chose to use the term "burden of proof" in the text of the statute, and given the substantial evidence that the ordinary meaning of burden of proof was burden of persuasion, this legislative history cannot carry the day.DIn part due to Congress' recognition that claims such as those involved here would be difficult to prove, claimants in adjudications under these statutes benefit from certain statutory presumptions easing their burden. See 33 U. S. C. § 920; 30 U. S. C. § 921(c); Del Vecchio v. Bowers, 296 U. S. 280, 286 (1935). Similarly, the Department's solicitude for benefits claimants is reflected in the regulations adopting additional presumptions. See 20 CFR §§ 718.301-718.306 (1993); Mullins Coal, 484 U. S., at 158. But with the true doubt rule the Department attempts to go one step further. In so doing, it runs afoul of the AP A, a statute designed "to introduce greater uniformity of procedure and standardization of administrative practice among the diverse281agencies whose customs had departed widely from each other." Wong Yang Sung v. McGrath, 339 U. S. 33, 41 (1950). That concern is directly implicated here, for under the Department's reading each agency would be free to decide who shall bear the burden of persuasion. Accordingly, the Department cannot allocate the burden of persuasion in a manner that conflicts with the AP A.IVUnder the Department's true doubt rule, when the evidence is evenly balanced the claimant wins. Under § 7(c), however, when the evidence is evenly balanced, the benefits claimant must lose. Accordingly, we hold that the true doubt rule violates § 7(c) of the APA.Because we decide these cases on the basis of § 7(c), we need not address the Court of Appeals' holding in Greenwich Collieries that the true doubt rule conflicts with § 718.403 or with Mullins Coal, supra.Affirmed

OCTOBER TERM, 1993SyllabusDIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR v. GREENWICH COLLIERIES ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 93-744. Argued April 25, 1994-Decided June 20,1994*In adjudicating separate benefits claims under the Black Lung Benefits Act (BLBA) and the Longshore and Harbor Workers' Compensation Act (LHWCA), the Department of Labor Administrative Law Judges (ALJ's) both applied the Department's "true doubt" rule. This rule essentially shifts the burden of persuasion to the party opposing the claim so that when, as here, the evidence is evenly balanced, the benefits claimant wins. In both cases, the Department's Benefits Review Board affirmed the ALJ's decision to award benefits. However, the Court of Appeals vacated the Board's decision in the BLBA case, holding that the true doubt rule is inconsistent with the Department's own BLBA regulations, as well as with Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs, 484 U. S. 135. And, in the LHWCA case, the court reversed on the ground that the true doubt rule violates § 7(c) of the Administrative Procedure Act (APA), which states that "[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof."Held:1. Section 7(c)'s burden of proof provision applies to adjudications under the LHWCA and the BLBA, each of which contains a section incorporating the APA. Neither 33 U. S. C. § 923(a), which relieves the Department of certain evidentiary and procedural requirements in LHWCA investigations and hearings, nor an ambiguous BLBA regulation providing that claimants be given the benefit of all reasonable doubt, is sufficient to overcome the presumption that adjudications are subject to the APA. See Brownell v. Tom We Shung, 352 U. S. 180, 185. Pp. 270-271.(a) An examination of Hill v. Smith, 260 U. S. 592, 594, and other relevant cases, as well as contemporary evidence treatises, demon-*Together with Director, Office of Workers' Compensation Programs, Department of Labor v. Maher Terminals, Inc., et al., also on certiorari to the same court (see this Court's Rule 12.2).268Syllabusstrates that, in 1946, the year the APA was enacted, the ordinary meaning of § 7(c)'s "burden of proof" phrase was burden of persuasion (i. e., the obligation to persuade the trier of fact of the truth of a proposition), not simply burden of production (i. e., the obligation to come forward with evidence to support a claim). This Court presumes that Congress intended the phrase to have the meaning generally accepted in the legal community at the time of enactment. See, e. g., Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268. Because the true doubt rule places the burden of persuasion on the party opposing a benefits award, it violates § 7(c)'s requirement that that burden rest with the party seeking the award. Pp. 272-276.(b) In light of the foregoing, the cursory conclusion set forth in NLRB v. Transportation Management Corp., 462 U. S. 393, 404, n. 7in which the Court stated that § 7(c) determines only the burden of going forward, not the burden of persuasion-cannot withstand scrutiny. pp. 276-278.(c) The Department's reliance on imprecise and marginally relevant passages from the APA's legislative history is unavailing. Pp.278-280.(d) The true doubt rule runs afoul of the APA's goal of greater uniformity of procedure and standardization of administrative practice among the diverse federal agencies, for under the Department's reading each agency would be free to decide who bears the burden of persuasion. Pp. 280-281.3. Because these cases are decided on the basis of § 7(c), this Court need not address the Court of Appeals' holding that the true doubt rule conflicts with BLBA regulations and Mullins Coal. P.281.990 F.2d 730 (first case) and 992 F.2d 1277 (second case), affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, THOMAS, and GINSBURG, JJ., joined. SouTER, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 281.Edward C. DuMont argued the cause for petitioner in both cases. With him on the briefs were Solicitor General Days, Deputy Solicitor General Kneedler, Steven J. Mandel, and Edward D. Sieger.Mark E. Solomons argued the cause for respondents in both cases. With him on the brief for respondent Greenwich Collieries were Laura Metcoff Klaus and John J. Bagnato. Joseph T. Stearns filed a brief for respondent Maher Termi-269Full Text of Opinion

1996_95-1232

Syllabusmant Commerce Clause purposes. A number of reasons support a decision to give the greater weight to the distinctiveness of the captive market and the LDCs' singular role in serving that market, and hence to treat marketers and LDC's as dissimilar for Commerce Clause purposes. Pp. 297-303.(c) First and most important, this Court has an obligation to proceed cautiously lest it imperil the LDCs' delivery of bundled gas to the noncompetitive captive market. Congress and the Court have recognized the importance of not jeopardizing service to this market. Panhandle Eastern Pipe Line Co. v. Michigan Pub. Servo Comm'n, supra. State regulation of gas sales to consumers serves important health and safety interests in fairly obvious ways, in that requirements of dependable supply and extended credit assure that individual domestic buyers are not frozen out of their houses in the cold months. The legitimate state pursuit of such interests is compatible with the Commerce Clause, Huron Portland Cement CO. V. Detroit, 362 U. S. 440, 443-444, and such a justification may be weighed in the process of deciding the threshold question addressed here. Second, the Court lacks the expertness and the institutional resources necessary to predict the economic effects of judicial intervention invalidating Ohio's tax scheme on the LDCs' capacity to serve the captive market. See, e. g., Fulton Corp. V. Faulkner, 516 U. S. 325,341-342. Thus, the most the Court can say is that modification of Ohio's tax scheme could subject LDC's to economic pressure that in turn could threaten the preservation of an adequate customer base to support continued provision of bundled services to the captive market. Finally, should intervention by the National Government be necessary, Congress has both the power and the institutional competence to decide upon and effectuate any desirable changes in the scheme that has evolved. For a half century Congress has been aware of this Court's conclusion in Panhandle Eastern Pipe Line CO. V. Public Servo Comm'n of Ind., 332 U. S. 507, that the Natural Gas Act of 1938 exempts state regulation of in-state retail gas sales from the dormant Commerce Clause, and since that decision has only reaffirmed the States' power in this regard. pp. 303-310.(d) GMC's argument that Ohio's tax regime facially discriminates because the sales and use tax exemption would not apply to sales by out-of-state LDC's is rejected. Ohio courts might extend the challenged exemption to out-of-state utilities if confronted with the question, and this Court does not deem a hypothetical possibility of favoritism to constitute discrimination transgressing constitutional commands. Associated Industries of Mo. V. Lohman, 511 U. S. 641, 654. pp. 310-311.2813. Ohio's tax regime does not violate the Equal Protection Clause.The differential tax treatment of LDC and independent marketer sales does not facially discriminate against interstate commerce, and there is unquestionably a rational basis for Ohio's distinction between these two kinds of entities. Pp.311-312.73 Ohio St. 3d 29, 652 N. E. 2d 188, affirmed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 312. STEVENS, J., filed a dissenting opinion, post, p. 313.Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Gregory A. Castanias and John C. Duffy, Jr.Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for respondent. With him on the brief were Betty D. Montgomery, Attorney General, and Barton A. Hubbard, Robert C. Maier, Paul A. Colbert, and Thomas McNamee, Assistant Attorneys General. *JUSTICE SOUTER delivered the opinion of the Court.The State of Ohio imposes its general sales and use taxes on natural gas purchases from all sellers, whether in-state or*Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States et al. by Walter Hellerstein, Carter G. Phillips, Rebecca H. Noecker, Karen L. Pauley, Robin S. Conrad, and Jan S. Amundson; and for the Process Gas Consumers Group et al. by JeromeBriefs of amici curiae urging affirmance were filed for the State of Kansas et al. by Carla J. Stovall, Attorney General of Kansas, and Stephen R. McAllister, Special Assistant Attorney General, and by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Richard Blumenthal of Connecticut, James E. Ryan of Illinois, Frankie Sue Del Papa of Nevada, Heidi Heitkamp of North Dakota, James S. Gilmore III of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for the National Association of Regulatory Utility Commissioners by William Paul Rodgers, Jr.; and for Columbia Gas of Ohio, Inc., by Kenneth W Christman.Paull Mines and Richard D. Pomp filed a brief for the Multistate Tax Commission as amicus curiae.282out-of-state, except regulated public utilities that meet Ohio's statutory definition of a "natural gas company." The question here is whether this difference in tax treatment between sales of gas by domestic utilities subject to regulation and sales of gas by other entities violates the Commerce Clause or Equal Protection Clause of the Constitution. We hold that it does not.IDuring the tax period at issue,1 Ohio levied a 5% tax on the in-state sales of goods, including natural gas, see Ohio Rev. Code Ann. §§ 5739.02, 5739.025 (Supp. 1990), and it imposed a parallel 5% use tax on goods purchased out-of-state for use in Ohio. See § 5741.02 (1986). Local jurisdictions were authorized to levy certain additional taxes that increased these sales and use tax rates to as much as 7% in some municipalities. See § 5739.025 (Supp. 1990); Reply Brief for Petitioner 13, n. 11.Since 1935, when Ohio's first sales and use taxes were imposed, the State has exempted natural gas sales by "natural gas compan[ies]" from all state and local sales taxes. § 5739.02(B)(7).2 Under Ohio law, "[a]ny person ... [i]s a natural gas company when engaged in the business of supplying natural gas for lighting, power, or heating purposes to consumers within this state." § 5727.01(D)(4) (1996); see also § 5727.01(E)( 4) (Supp. 1990); § 5727.01(E)(8) (1986). It is undisputed that natural gas utilities (generally termed "local distribution companies" or LDC's) located in Ohio satisfy this definition of "natural gas company." The Supreme Court of Ohio has, however, interpreted the statutory term to exclude non- LDC gas sellers, such as producers and independent marketers, see Chrysler Corp. v. Tracy, 73 Ohio St.1 The natural gas purchases that gave rise to petitioner's challenge were made during the period from October 1, 1986, to June 30, 1990.2 The exemption was originally codified at Ohio Gen. Code Ann. § 55462(6) (Baldwin 1952). As part of a general recodification in 1953, it was moved to Ohio Rev. Code Ann. § 5739.02(B)(7), where it remains today.2833d 26, 652 N. E. 2d 185 (1995), and the State has accordingly treated their sales as outside the exemption and so subject to the tax.The very question of such an exclusion, and consequent taxation of gas sales or use, reflects a recent stage of evolution in the structure of the natural gas industry. Traditionally, the industry was divisible into three relatively distinct segments: producers, interstate pipelines, and LDC's. This market structure was possible largely because the Natural Gas Act of 1938 (NGA), 52 Stat. 821, 15 U. S. C. § 717 et seq., failed to require interstate pipelines to offer transportation services to third parties wishing to ship gas. As a result, "interstate pipelines [were able] to use their monopoly power over gas transportation to create and maintain monopsony power in the market for the purchase of gas at the wellhead and monopoly power in the market for the sale of gas to LDCs." Pierce, The Evolution of Natural Gas Regulatory Policy, 10 Nat. Resources & Env't 53, 53-54 (Summer 1995) (hereinafter Pierce). For the most part, then, producers sold their gas to the pipelines, which resold it to utilities, which in turn provided local distribution to consumers. See, e. g., Associated Gas Distributors v. FERC, 824 F.2d 981, 993 (CADC 1987), cert. denied, 485 U. S. 1006 (1988); Mogel & Gregg, Appropriateness of Imposing Common Carrier Status on Interstate Natural Gas Pipelines, 4 Energy L. J. 155, 157 (1983).Congress took a first step toward increasing competition in the natural gas market by enacting the Natural Gas Policy Act of 1978, 92 Stat. 3350, 15 U. S. C. § 3301 et seq., which was designed to phase out regulation of wellhead prices charged by producers of natural gas, and to "promote gas transportation by interstate and intrastate pipelines" for third parties. 57 Fed. Reg. 13271 (1992). Pipelines were reluctant to provide common carriage, however, when doing so would displace their own sales, see Associated Gas Distributors v. FERC, supra, at 993, and in 1985, the Federal284Energy Regulatory Commission (FERC) took the further step of promulgating Order No. 436, which contained an "open access" rule providing incentives for pipelines to offer gas transportation services, see 50 Fed. Reg. 42408. In 1992, this evolution culminated in FERC's Order No. 636, which required all interstate pipelines to "unbundle" their transportation services from their own natural gas sales and to provide common carriage services to buyers from other sources that wished to ship gas. See 57 Fed. Reg. 13267.Although FERC did not take the further step of requiring intrastate pipelines to provide local transportation services to ensure that gas sold by producers and independent marketers could get all the way to the point of consumption,3 under the system of open access to interstate pipelines that had emerged in the mid-1980's "larger industrial end-users" began increasingly to bypass utilities' local distribution networks by "construct[ing] their own pipeline spurs to [interstate] pipeline[s] .... " Fagan, From Regulation to Deregulation: The Diminishing Role of the Small Consumer Within the Natural Gas Industry, 29 Tulsa L. J. 707, 723 (1994). Bypass posed a problem for LDC's, since the departure of large end users from the system left the same fixed costs to be spread over a smaller customer base. The State of Ohio consequently took steps in 1986 to keep some income from large industrial customers within the utility system by adopting regulations that allowed industrial end users in Ohio to buy natural gas from producers or independent marketers, pay interstate pipelines for interstate transportation, and pay LDC's for local transportation. See In re Commis-3 Section l(b) of the NGA, 52 Stat. 821, 15 U. S. C. § 717(b), explicitly exempts "local distribution of natural gas" from federal regulation. In addition, the Hinshaw Amendment to the NGA, 15 U. S. C. §717(c), exempts from FERC regulation intrastate pipelines that operate exclusively in one State and with rates and service regulated by the State. See ANR Pipeline Co. v. FERC, 71 F.3d 897, 898, n. 2 (CADC 1995). See also infra, at 293.285sion Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800-GA-COI (Ohio Pub. Util. Comm'n, Apr. 15, 1986); see generally Natural Gas Marketing and Transportation Committee, 1990 Annual Report, in Natural Resources Energy and Environmental Law, 1990 Year in Review 57, 91-92, and n. 207 (1991).This new market structure led to the question whether purchases from non- LDC sellers of natural gas qualified for the state sales tax exemption under Ohio Rev. Code Ann. § 5739.02(B)(7) (Supp. 1990). In Chrysler Corp. v. Tracy, the Ohio Supreme Court held that they do not. The court reasoned that independent marketers do not "suppl[y]" natural gas as required by § 5727.01(D)(4), because they do "not own or control any physical assets to ... distribute natural gas." 73 Ohio St. 3d, at 28, 652 N. E. 2d, at 187. This determination of state law led in turn to the case before us now.During the tax period in question here, petitioner General Motors Corporation (GMC) bought virtually all the natural gas for its Ohio plants from out-of-state marketers, not LDC's.4 Respondent Tax Commissioner of Ohio applied the State's general use tax to GMC's purchases, and the State Board of Tax Appeals sustained that action. GMC appealed to the Supreme Court of Ohio on two grounds. GMC first contended that its purchases should be exempt from the sales tax because independent marketers fell within the statutory definition of "natural gas company." The State Supreme Court, citing its decision the same day in Chrysler, rejected this argument. See General Motors Corp. v. Tracy, 73 Ohio St. 3d 29, 30, 652 N. E. 2d 188, 189 (1995). GMC also argued that denying the tax exemption to sales by marketers violated the Commerce and Equal Protection Clauses. The Ohio court initially concluded that the State's4 App. 156. Pursuant to Ohio's regulations authorizing LDC's to provide local transportation services, GMC took delivery of much of this gas from local utilities. Id., at 156-157.286regime did not violate the Commerce Clause because Ohio taxes sales by "compan[ies] that d[o] not own any production, transportation, or distribution equipment" at the same rate regardless of "whether [the companies sell] natural gas instate or out-of-state." Id., at 31, 652 N. E. 2d, at 190. The court then stepped back to rule, however, that GMC lacked standing to bring its Commerce Clause challenge:"On close inspection, GM actually argues that the commissioner's application burdens out-of-state vendors of natural gas. However, GM is not a member of that class and lacks standing to challenge the constitutionality of this application on that basis; our further comment on this question is inappropriate." Ibid.Finally, the court dismissed GMC's equal protection claim as "submerged in its Commerce Clause argument." Id., at 31-32, 652 N. E. 2d, at 190. We granted GMC's petition for certiorari to address the question of standing as well as the Commerce and Equal Protection Clause issues. 517 U. S. 1118 (1996).IIThe Supreme Court of Ohio held GMC to be without standing to raise this Commerce Clause challenge because the company is not one of the sellers said to suffer discrimination under the challenged tax laws. But cognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates, and customers of that class may also be injured, as in this case where the customer is liable for payment of the tax and as a result presumably pays more for the gas it gets from out-of-state producers and marketers. Consumers who suffer this sort of injury from regulation forbidden under the Commerce Clause satisfy the standing requirements of Article III. See generally Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992).287On similar facts, we held in Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984), that in-state liquor wholesalers had standing to raise a Commerce Clause challenge to a Hawaii tax regime exempting certain alcohols produced in-state from liquor taxes. Although the wholesalers were not among the class of out-of-state liquor producers allegedly burdened by Hawaii's law, we reasoned that the wholesalers suffered economic injury both because they were directly liable for the tax and because the tax raised the price of their imported goods relative to the exempted in-state beverages. Id., at 267; see also Fulton Corp. v. Faulkner, 516 U. S. 325 (1996) (in-state stockholder challenged tax regime imposing higher taxes on stock from issuers with out-of-state operations than on stock from purely in-state issuers); West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994) (in-state milk dealers challenged tax and subsidy scheme discriminating against out-of-state milk producers). Bacchus applies with equal force here, and GMC "plainly ha[s] standing to challenge the tax in this Court," Bacchus Imports v. Dias, supra, at 267. We therefore turn to the merits.III AThe negative or dormant implication of the Commerce Clause prohibits state taxation, see, e. g., Quill Corp. v. North Dakota, 504 U. S. 298, 312-313 (1992), or regulation, see, e. g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 578-579 (1986), that discriminates against or unduly burdens interstate commerce and thereby "imped[es] free private trade in the national marketplace," Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980). GMC claims that Ohio's differential tax treatment of natural gas sales by marketers and regulated local utilities constitutes "facial" or "patent" discrimination in violation of the Commerce Clause, and it argues that differences in the nature of the businesses of LDC's and interstate marketers288cannot justify Ohio's differential treatment of these in-state and out-of-state entities. Although the claim is not that the Ohio tax scheme distinguishes in express terms between instate and out-of-state entities, GMC argues that by granting the tax exemption solely to LDC's, which are in fact all located in Ohio, the State has "favor[ed] some in-state commerce while disfavoring all out-of-state commerce," Brief for Petitioner 16. That is, because the favored entities are all located within the State, "the tax exemption did not need to be drafted explicitly along state lines in order to demonstrate its discriminatory design," Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S. 66, 76 (1989). Assessing these arguments requires an understanding of the historical development of the contemporary retail market for natural gas, to which we referred before and now turn in greater detail.BSince before the Civil War, gas manufactured from coal and other commodities had been used for lighting purposes, and of course it was understood that natural gas could be used the same way. See Dorner, Initial Phases of Regulation of the Gas Industry, in 1 Regulation of the Gas Industry §§ 2.03-2.06 (American Gas Assn. 1996) (hereinafter Dorner). By the early years of this century, areas in "proximity to the gas field[s]," West v. Kansas Natural Gas Co., 221 U. S. 229, 246 (1911), did use natural gas for fuel, but it was not until the 1920's that the development of high-tensile steel and electric welding permitted construction of high-pressure pipelines to transport natural gas from gas fields for distant consumption at relatively low cost. Pierce 53. By that time, the States' then-recent experiments with free market competition in the manufactured gas and electricity industries had dramatically underscored the need for comprehensive regulation of the local gas market. Companies supplying manufactured gas proliferated in the latter half of the 19th century289and, after initial efforts at regulation by statute at the state level proved unwieldy, the States generally left any regulation of the industry to local governments. See Dorner §§ 2.03, 2.04. Many of those municipalities honored the tenets of laissez-faire to the point of permitting multiple gas franchisees to serve a single area and relying on competition to protect the public interest. Ibid. The results were both predictable and disastrous, including an initial period of "wasteful competition,"5 followed by massive consolidation and the threat of monopolistic pricing.6 The public suffered through essentially the same evolution in the electric industry.7 Thus, by the time natural gas became a widely mar-5 During this period, "'[tJhe public grew weary of the interminable rate wars which were invariably followed by a period of recoupment during which the victorious would attempt to make the price of the battle of the consumers by way of increased rates. Investors suffered heavy losses through the manipulation of fly-by-night paper concerns operating with 'nuisance' franchises .... Everybody suffered the inconvenience of city streets being constantly torn up and replaced by installation and relocation of duplicate facilities. The situation in New York City alone, prior to the major gas company consolidations, threatened municipal chaos.''' Dorner § 2.03 (quoting Welch, The Odyssey of Gas-A Record of Industrial Courage, 24 Pub. Utils. Fortnightly 500, 501-502 (1939)).6 Reticence was not the order of the day. When, for example, the last two surviving gas companies supplying the citizens of Brooklyn announced their merger in October 1883, they also announced that gas prices would immediately double. Dorner § 2.03.7 The electric industry burgeoned following Thomas Edison's patent on the first incandescent electric lamp in 1878. Dorner, Beginnings of the Gas Industry, in 1 Regulation of the Gas Industry § 1.06 (American Gas Assn. 1996). Again, after an initial period of unsuccessful regulation by state statute, States mostly left regulation of the electric industry to municipal or local government. Swartwout, Current Utility Regulatory Practice from a Historical Perspective, 32 Nat. Res. J. 289, 298 (1992). "[MJultiple franchises were handed out, and duplicative utility systems came into being." Id., at 299. The results were "ruinous and short lived." Ibid. For example, 45 mostly overlapping franchises were granted for electric utility operation in Chicago between 1882 and 1905. By 1905, however, a single monopoly entity had emerged from the chaos, and customers ended up paying monopoly prices. Id., at 300.290ketable commodity, the States had learned from chastening experience that public streets could not be continually torn up to lay competitors' pipes, that investments in parallel delivery systems for different fractions of a local market would limit the value to consumers of any price competition, and that competition would simply give over to monopoly in due course. It seemed virtually an economic necessity for States to provide a single, local franchise with a business opportunity free of competition from any source, within or without the State, so long as the creation of exclusive franchises under state law could be balanced by regulation and the imposition of obligations to the consuming public upon the franchised retailers.Almost as soon as the States began regulating natural gas retail monopolies, their power to do so was challenged by interstate vendors as inconsistent with the dormant Commerce Clause. While recognizing the interstate character of commerce in natural gas, the Court nonetheless affirmed the States' power to regulate, as a matter of local concern, all direct sales of gas to consumers within their borders, absent congressional prohibition of such state regulation. See, e. g., Pennsylvania Gas Co. v. Public Servo Comm'n of N. Y., 252 U. S. 23, 28-31 (1920); Public Util. Comm'n of Kan. v. Landon, 249 U. S. 236, 245-246 (1919). At the same time, the Court concluded that the dormant Commerce Clause prevents the States from regulating interstate transportation or sales for resale of natural gas. See, e. g., Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U. S. 298, 307-310 (1924); Pennsylvania v. West Virginia, 262 U. S. 553, 596600, reaffirmed on rehearing, 263 U. S. 350 (1923). See generally Illinois Natural Gas Co. v. Central Ill. Public Service Co., 314 U. S. 498, 504-505 (1942) (summarizing prior cases distinguishing between permissible and impermissible state regulation of commerce in natural gas). Thus, the Court never questioned the power of the States to regulate retail291sales of gas within their respective jurisdictions. Dorner § 2.06.8When federal regulation of the natural gas industry finally began in 1938, Congress, too, clearly recognized the value of such state-regulated monopoly arrangements for the sale and distribution of natural gas directly to local consumers. Thus, § l(b) of the NGA, 15 U. s. C. § 717(b), explicitly exempted "local distribution of natural gas" from federal regulation, even as the NGA authorized the Federal Power8 In Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Servo Comm'n, 461 U. S. 375 (1983), we rejected the bright-line distinction between wholesale and retail sales drawn by these older cases and concluded that state regulation of wholesale sales of electricity transmitted in interstate commerce is not precluded by the Commerce Clause. Reasoning that utilities should not be insulated from our contemporary dormant Commerce Clause jurisprudence by formalistic judge-made rules, id., at 391, we looked instead to "'the nature of the state regulation involved, the objective of the state, and the effect of the regulation upon the national interest in the commerce,'" id., at 390 (quoting Illinois Natural Gas CO. V. Central Ill. Public Service Co., 314 U. S. 498, 505 (1942)), to determine whether States have a sufficient interest in regulating wholesale rates within their borders, and had no problem concluding that States do indeed have such an interest, with the result that state regulation of wholesale rates is not precluded by the Commerce Clause (in the absence of pre-emptive congressional action), id., at 394-395. While the holding of Arkansas Electric thereby expanded both the permissible scope of state utility regulation and judicial recognition of the important state interests in such regulation, the reasoning of the case equally implies that state regulation of retail sales is not, as a constitutional matter, immune from our ordinary Commerce Clause jurisprudence, and to the extent that our earlier cases may have implied such immunity they are no longer good law. Nothing in Arkansas Electric undermines the earlier cases' recognition of the powerful state interest in regulating sales to domestic consumers buying at retail, however, which we reaffirm here. In addition, Arkansas Electric does not disturb the relevance of the wholesale/retail distinction for construing the jurisdictional provisions of statutes such as the NGA, which we discuss immediately below. See id., at 380, and n. 3; see also Schneidewind V. ANR Pipeline Co., 485 U. S. 293, 300-301 (1988) ("The NGA confers upon FERC exclusive jurisdiction over the transportation and sale of natural gas in interstate commerce for resale").292Commission (FPC) to begin regulating interstate pipelines. Congress's purpose in enacting the NGA was to fill the regulatory void created by the Court's earlier decisions prohibiting States from regulating interstate transportation and sales for resale of natural gas, while at the same time leaving undisturbed the recognized power of the States to regulate all in-state gas sales directly to consumers. Panhandle Eastern Pipe Line Co. v. Public Servo Comm'n of Ind., 332 U. S. 507, 516-522 (1947). Thus, the NGA "was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way," id., at 517-518; "the scheme was one of cooperative action between federal and state agencies" to "protect consumers against exploitation at the hands of natural gas companies," id., at 520 (internal quotation marks omitted); and "Congress' action ... was an unequivocal recognition of the vital interests of the states and their people, consumers and industry alike, in the regulation of rates and service," id., at 521; see also Panhandle Eastern Pipe Line Co. v. Michigan Pub. Servo Comm'n, 341 U. S. 329, 334 (1951) ("Direct sales [of natural gas] for consumptive use were designedly left to state regulation" by the NGA). Indeed, the Court has construed § l(b) of the NGA as altogether exempting state regulation of in-state retail sales of natural gas from attack under the dormant Commerce Clause:"The declaration [in the NGA], though not identical in terms with the one made by the McCarran Act, 59 Stat. 33, 15 U. S. C. § 1011, concerning continued state regulation of the insurance business, is in effect equally clear, in view of the [NGA's] historical setting, legislative history and objects, to show intention for the states to continue with regulation where Congress has not expressly taken over. Cf. Prudential Ins. Co. v. Benjamin, 328 U. S. 408 [(1946) (upholding discriminatory state taxation of out-of-state insurance companies as authorized293by the McCarran Act)]." Panhandle-Indiana, supra, at 521.And Congress once again acknowledged the important role of the States in regulating intrastate transportation and distribution of natural gas in 1953 when, in the wake of a decision of this Court permitting the FPC to regulate intrastate gas transportation by LDC's, see FPC v. East Ohio Gas Co., 338 U. S. 464 (1950), Congress amended the NGA to "leav[e] jurisdiction" over "companies engaged in the distribution" of natural gas "exclusively in the States, as always has been intended." S. Rep. No. 817, 83d Cong., 1st Sess., 1-2 (1953); see 15 U. S. C. § 717(c).For 40 years, the complementary federal regulation of the interstate market and congressionally approved state regulation of the intrastate gas trade thus endured unchanged in any way relevant to this case. The resulting market structure virtually precluded competition between LDC's and other potential suppliers of natural gas for direct sales to consumers, including large industrial consumers. The simplicity of this dual system of federal and state regulation began to erode in 1978, however, when Congress first encouraged interstate pipelines to provide transportation services to end users wishing to ship gas,9 and thereby moved toward providing a real choice to those consumers who were able to buy gas on the open market and were willing to take it free of state-created obligations to the buyer. The upshot of congressional and regulatory developments over the next 15 years was increasing opportunity for a consumer in that class to choose between gas sold by marketers and gas bundled with rights and benefits mandated by state regulators as sold by LDC's. But amidst such changes, two things remained the same throughout the period involved in this case. Con-9 For a more complete description of these changes in federal regulatory policy, and the relevant modifications of Ohio regulation of local utilities that they prompted, see supra, at 283-285.294gress did nothing to limit the States' traditional autonomy to authorize and regulate local gas franchises, and the local franchised utilities (though no longer guaranteed monopolies as to all natural gas demand) continued to provide bundled gas to the vast majority of consumers who had neither the capacity to buy on the interstate market nor the resilience to forgo the reliability and protection that state regulation provided.To this day, all 50 States recognize the need to regulate utilities engaged in local distribution of natural gas.1010 Alabama: Ala. Code §37-4-1(7)(b) (Supp. 1996); see generally §§371-80 through 37-1-105 (1992 and Supp. 1996); Alaska: Alaska Stat. Ann. §§42.05.141, 42.05.291, 42.05.990(4)(D) (1989 and Supp. 1995); see generally §§ 42.05.010-42.05.995; Arizona: Ariz. Rev. Stat. Ann. §§ 40-201.4, 40-203 (1996); see generally §§ 40-201 through 40-495; Arkansas: Ark. Code Ann. §§23-1-101(4)(A)(i), 23-4-101 (1987 and Supp. 1995); see generally §§231-101 through 23-4-637; California: Cal. Pub. Util. Code Ann. §§216, 701 (West 1975 and Supp. 1996); see generally §§ 201 through 882 (West 1975 and Supp. 1996), §§ 1001 through 1906 (West 1994 and Supp. 1996); Colorado: Colo. Rev. Stat. §§40-1-103(1)(a), 40-3-101 (1993); see generally §§40-1-101 through 40-8.5-107 (1993 and Supp. 1996); Connecticut: Conn. Gen. Stat. Ann. §§ 16-1(a)(4), (9), 16-6b (West 1988 and Supp. 1996); see generally §§ 16-1 through 16-5Of; Delaware: Del. Code Ann., Tit. 26, § 102(2) (Supp. 1996); see generally Tit. 26, §§ 101 through 511 (1989 and Supp. 1996); District of Columbia: D. C. Code Ann. §§ 43-203, 43-212 (1990); see generally §§43-101 through 43-1107 (1990 and Supp. 1996); Florida: Fla. Stat. Ann. §§ 366.02(1), 366.03 (West Supp. 1997); see generally §§ 366.01 through 366.14 (West 1968 and Supp. 1997); Georgia: Ga. Code Ann. § 46-2-20(a) (1992); see generally §§ 46-2-20 through 46-2-94 (1992 and Supp. 1996); Hawaii: Haw. Rev. Stat. Ann. §§269-1, 269-6, 269-16 (Michie 1992 and Supp. 1996); see generally §§269-1 through 269-32; Idaho: Idaho Code §§ 61-129, 61-501, 61-502 (1994); see generally §§ 61-101 through 61-714; Illinois: Ill. Compo Stat., ch. 220, §§ 5/3-105, 5/ 4-101, 5/9-101 (1994); see generally ch. 220, §§ 5/1-101 through 5/10-204; Indiana: Ind. Code §§8-1-2-1, 8-1-2-4, 8-1-2-87 (West Supp. 1996); see generally §§8-1-2-1 through 8-1-2-127; Iowa: Iowa Code Ann. §476.1 (West Supp. 1996); see generally §§476.1 through 476.66 (West 1991 and Supp. 1996); Kansas: Kan. Stat. Ann. §§66-104, 66-1,200 through 66-1,208 (1985 and Supp. 1995); Kentucky: Ky. Rev. Stat. Ann. § 278.010(3)(c) (Baldwin 1992); see generally §§ 278.010 through 278.450; Louisiana: La. Rev.295Ohio's treatment of its gas utilities has been a typical blend of limitation and affirmative obligation. Its natural gas utilities, during the period in question, bore with a variety ofStat. Ann. §33:4161 (West 1988); see generally §§33:4161 through 33:4174, 33:4301 through 33:4308, 33:4491 through 33:4496 (West 1988 and Supp. 1996); Maine: Me. Rev. Stat. Ann., Tit. 35-A, §§ 102, 103, 301 (1988 and Supp. 1996-1997); see generally Tit. 35-A, §§ 101-1210; Maryland: Md. Ann. Code, Art. 78, §§ 1,2(0) (1991); see generally Art. 78, §§ 1 through 2, 23 through 27A, 51 through 54K, 68 through 88 (1991 and Supp. 1994); Massachusetts: Mass. Gen. Laws §§ 164:1, 164:93, 164:94 (1994); see generally ch. 164, §§ 1 through 128; Michigan: Mich. Compo Laws Ann. §§ 460.6460.6b (West 1991 and Supp. 1996-1997); see generally §§460.1 through 460.8; Minnesota: Minn. Stat. Ann. §§216B.02(4), 216B.03 (West 1992); see generally §§ 216B.01 through 216B.67 (1994 and Supp. 1995); Mississippi:Miss. Code Ann. §§ 77-3-3(d)(ii), 77-3-5 (1991 and Supp. 1996); see generally §§ 77-3-1 through 77-3-307; Missouri: Mo. Rev. Stat. §§ 386.020, 393.130 (1994); see generally §§386.010 through 386.710, 393.010 through 393.770; Montana: Mont. Code Ann. §§ 69-3-101, 69-3-102, 69-3-201 (1995); see generally §§ 69-3-101 through 69-3-713; Nebraska: Neb. Rev. Stat. § 14-2119 (Supp. 1996); see generally §§ 19-4601 through 19-4623 (1991 and Supp. 1996); Nevada: Nev. Rev. Stat. Ann. § 704.020(2)(a) (1995); see generally §§704.001 through 704.320, 704.755; New Hampshire: N. H. Rev. Stat. Ann. §§362:2, 374:1, 374:2 (1995); see generally §§378:1 through 378:42; New Jersey: N. J. Stat. Ann. § 48:2-13 (West Supp. 1996); see generally §§48:2-13 through 48:2-91, 48:9-5 through 48:9-32 (West 1969 and Supp. 1996-1997); New Mexico: N. M. Stat. Ann. §§ 62-3-3,62-6-4,62-8-1 (1993 and Supp. 1996); see generally §§ 62-1-1 through 62-13-14; New York: N. Y. Pub. Servo Law § 65 (McKinney 1989); see generally §§ 30 through 52, 64 through 77 (McKinney 1989 and Supp. 1996); North Carolina: N. C. Gen. Stat. §§ 62-3(23), 62-30 (1989 and Supp. 1996); see generally §§62-1 through 62-171; North Dakota: N. D. Cent. Code §§49-02-01, 49-02-02, 49-04-02 (1978 and Supp. 1995); see generally §§ 49-02-01 through 49-07-06; Ohio: Ohio Rev. Code Ann. §§ 4905.03(A)(6), 4905.04, 4905.22 (1991); see generally §§4901.01-4909.99 (Baldwin 1991 and Supp. 1995); Oklahoma: Okla. Stat., Tit. 17, §§ 15,152,160.1 (West 1986 and Supp. 1997); Oregon: Ore. Rev. Stat. §§ 757.005,757.020,756.040 (1991); see generally §§ 756.010 through 757.991; Pennsylvania: Pa. Stat. Ann., Tit. 66, §§ 102,501, 1301 (Purdon 1979 and Supp. 1996-1997); see generally Tit. 66, §§ 101 through 2107; Rhode Island: R. I. Gen. Laws §§39-1-2(7), 39-1-3(a) (Supp. 1996); see generally §§ 39-1-1 through 39-2-19 (1990 and Supp. 1996); South Carolina: S. C. Code Ann. §§ 58-5-10(3), 58-5-210 (1976 and296requirements: they had to submit annual forecasts of future supply and demand for gas, Ohio Rev. Code Ann. §4905.14 (Supp. 1990), comply with a range of accounting, reporting, and disclosure rules, §§4905.14, 4905.15 (1977 and Supp. 1990), and get permission from the state Public Utilities Commission to issue securities and even to enter certain contracts, §§ 4905.40, 4905.41, 4905.48. The "just and reasonable" rates to which they were restricted, see §§ 4905.22, 4905.32, 4909.15, 4909.17, included a single average cost of gas, see Ohio Admin. Code 4901:1-14, Ohio Monthly Record (Nov. 1991), together with a limited return on investmentYSupp. 1995); see generally §§ 58-5-10 through 58-5-1070; South Dakota:S. D. Codified Laws §§49-34A-1, 49-34A-4, 49-34A-6 (1993 and Supp. 1996); see generally §§49-34A-1 through 49-34A-78; Tennessee: Tenn. Code Ann. §§ 65-4-101, 65-5-201 (Supp. 1996); see generally §§ 65-4-101 through 65-5-205 (1993 and Supp. 1996); Texas: Tex. Rev. Civ. Stat. Ann., Art. 6050, § 1(a)(4), Art. 6053 (Vernon Supp. 1996-1997); see generally Arts. 6050 through 6066g (Vernon 1962 and Supp. 1996-1997); Utah: Utah Code Ann. §§ 54-2-1(8),54-3-1,54-4-1 (1994 and Supp. 1996); see generally §§ 54-2-1 through 54-4-30; Vermont: Vt. Stat. Ann., Tit. 30, § 215 (1986); Virginia: Va. Code Ann. §§ 56-232, 56-234 (1995); see generally §§ 56-232 through 56-260.1 (1995 and Supp. 1996); Washington: Wash. Rev. Code §§ 80.04.010, 80.28.020 (West 1991 and Supp. 1996-1997); see generally §§ 80.04.010 through 80.04.520, 80.28.010 through 80.28.260; West Virginia: W. Va. Code §24-2-1 (1992); see generally §§24-1-1 through 24-5-1 (1992 and Supp. 1996); Wisconsin: Wis. Stat. Ann. §§ 196.01(5), 196.02, 196.03 (West 1992 and Supp. 1996-1997); see generally §§ 196.01 through 196.98; Wyoming: Wyo. Stat. §§37-1-101(a)(vi)(D), 37-2-112 (1996); see generally §§37-1-101 through 37-6-107.11 Ohio's Amended Substitute House Bill 476, signed into law in 1996, requires the state Public Utilities Commission to exempt certain sales of natural gas and/or related services by an LDC from this rate regulation if the commission finds that the LDC is subject to effective competition with respect to such service and that the customers for such service have reasonably available alternatives, Ohio Rev. Code Ann. § 4929.04, as amended by H. R. 476, § 1, effective Sept. 17, 1996. Although this law had not been enacted at the time of the purchases involved in this case, petitioner contended at oral argument that during the tax period in question here, Ohio permitted some natural gas sales by public utilities at unregulated, negotiated rates, and that those sales were not subject to297The LDC's could not exact "a greater or lesser compensation for any services rendered ... than [exacted] ... from any other [customer] for doing a like and contemporaneous service under substantially the same circumstances and conditions." Ohio Rev. Code Ann. § 4905.33 (Supp. 1990).The State also required LDC's to serve all members of the public, without discrimination, throughout their fields of operations. See, e. g., Industrial Gas Co. v. Public Utilities Comm'n of Ohio, 135 Ohio St. 408, 21 N. E. 2d 166 (1939). They could not "pick out good portions of a particular territory, serve only select customers under private contract, and refuse service ... to ... other users," id., at 413, 21 N. E. 2d, at 168, or terminate service except for reasons defined by statute and by following statutory procedures, Ohio Rev. Code Ann. §§ 4933.12, 4933.121 (Supp. 1990). When serving "human needs" consumers including "residential [and] other customers ... where the element of human welfare [was] the predominant factor," In re Commission Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800-GA-COI (Ohio Pub. Util. Comm'n, Aug. 1, 1989), Ohio LDC's were required to provide a firm backup supply of gas, see ibid., and administer specific protective schemes, as by helping to assure a degree of continued service to low-income customers despite unpaid bills. See, e. g., Ohio Admin. Code 4901:1-18 (Ohio Monthly Record Nov. 1991).IVThe fact that the local utilities continue to provide a product consisting of gas bundled with the services and protections summarized above, a product thus different from the marketer's unbundled gas, raises a hurdle for GMC's claimsales tax. The record provides no support for this contention, and the constitutionality of Ohio exempting from state sales tax utility sales that are not price regulated is therefore not before the Court in this case.298that Ohio's differential tax treatment of natural gas utilities and independent marketers violates our "'virtually per se rule of invalidity,'" Associated Industries of Mo. v. Lohman, 511 U. S. 641, 647 (1994) (quoting Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978)), prohibiting facial discrimination against interstate commerce.AConceptually, of course, any notion of discrimination12 assumes a comparison of substantially similar entities. AI-12 Although GMC raises only a "facial discrimination" challenge to Ohio's tax scheme, our cases have indicated that even nondiscriminatory state legislation may be invalid under the dormant Commerce Clause, when, in the words of the so-called Pike undue burden test, "the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). There is, however, no clear line between these two strands of analysis, Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 579 (1986), and several cases that have purported to apply the undue burden test (including Pike itself) arguably turned in whole or in part on the discriminatory character of the challenged state regulations, see, e. g., Pike, supra, at 145 (declaring packing order "virtually per se illegal" because it required business operation to be performed in-state); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 677 (1981) (plurality opinion of Powell, J.) (noting that in adopting invalidated trucklength regulation the State "seems to have hoped to limit the use of its highways by deflecting some through traffic"); id., at 679-687 (Brennan, J., concurring in judgment) (emphasizing that truck-length regulation should be invalidated solely in view of its protectionist purpose); see generally Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev. 1091 (1986). Nonetheless, a small number of our cases have invalidated state laws under the dormant Commerce Clause that appear to have been genuinely nondiscriminatory, in the sense that they did not impose disparate treatment on similarly situated in-state and out-of-state interests, where such laws undermined a compelling need for national uniformity in regulation. See Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959) (conflict in state laws governing truck mud flaps); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 (1945) (train lengths); see also CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 88 (1987) ("This Court's recent299though this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or other regulatory differential would not serve the dormant Commerce Clause's fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors. In Justice Jackson's now-famous words:"Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protectCommerce Clause cases also have invalidated statutes that may adversely affect interstate commerce by subjecting activities to inconsistent regulations"); L. Brilmayer, Conflict of Laws §3.2.3, pp. 144-148 (2d ed. 1995) (discussing Court's review of conflicting state laws under the dormant Commerce Clause). In the realm of taxation, the requirement of apportionment plays a similar role by assuring that interstate activities are not unjustly burdened by multistate taxation. See generally Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. 175, 184-185 (1995) (discussing "internal" and "external" consistency tests for apportionment of state taxes). Of course, the fact that Ohio exempts local utilities from its sales and use taxes could not support any claim of undue burden in this nondiscriminatory sense, since the exemption itself does not give rise to conflicting regulation of any transaction or result in malapportionment of any tax.300him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality." H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).See also, e. g., Wyoming v. Oklahoma, 502 U. S. 437, 469 (1992) (SCALIA, J., dissenting) ("Our negative Commerce Clause jurisprudence grew out of the notion that the Constitution implicitly established a national free market ... "); Reeves, Inc. v. Stake, 447 U. S., at 437 (The dormant Commerce Clause prevents "state taxes and regulatory measures impeding free private trade in the national marketplace"); Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 350 (1977) (referring to "the Commerce Clause's overriding requirement of a national 'common market' "). Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply. The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such.Our cases have, however, rarely discussed the comparability of taxed or regulated entities as operators in arguably distinct markets; the closest approach to the facts here occurred in Alaska v. Arctic Maid, 366 U. S. 199 (1961). In Arctic Maid, a 4% tax on the value of salmon taken from territorial waters by so-called freezer ships and frozen for transport and later canning outside the State was challenged as discriminatory in the face of a 1% tax on the value of fish taken from territorial waters and frozen by on-shore cold storage facilities for later sale on the domestic fresh-frozen fish market. The State prevailed on the Court's holding that the claimants and cold storage facilities served separate markets, did not compete with one another, and thus could not properly be compared for Commerce Clause purposes. The proper comparison, the Court held, was between the freezer301ships and domestic salmon canners, who shipped interstate into the same markets served by the freezer ships. Since the canners were taxed even more heavily than the freezer ships, there was no unfavorable burden upon the latter. Id., at 204. Although the Court's opinion did not discuss the possibility that competition in the domestic fresh-frozen market might have occurred in the absence of the tax disparity between the two types of salmon freezers, the freezer ships had made no attempt to compete in that market and neither claimed nor demonstrated an interest in entering it. See Brief for Respondents in Alaska v. Arctic Maid, O. T. 1960, No. 106, pp. 27-33.Arctic Maid provides a partial analogy to this case.Here, natural gas marketers did not serve the Ohio LDCs' core market of small, captive users, typified by residential consumers who want and need the bundled product. See, e. g., Darr, A State Regulatory Strategy for the Transitional Phase of Gas Regulation, 12 Yale J. Reg. 69, 99 (1995) ("[T]he large core residential customer base is bound to the LDC in what currently appears to be a natural-monopoly relationship"); App. 199 (a marketer from which GMC purchased gas does not hold itself out to the general public as a gas supplier, but rather selectively contacts industrial end users that it has identified as potentially profitable customers). While this captive market is not geographically distinguished from the area served by the independent marketers, it is defined economically as comprising consumers who are captive to the need for bundled benefits. These are buyers who live on sufficiently tight budgets to make the stability of rate important, and who cannot readily bear the risk of losing a fuel supply in harsh natural or economic weather. See, e. g., Consolidated Edison Co. of N. Y. v. FERC, 676 F. 2d 763, 766, n. 5 (CADC 1982) ("[R]esidential users [of natural gas cannot] switch temporarily to other fuels and so they must endure cold homes" if their gas supply is interrupted); Samuels, Reliability of Natural Gas Service for Cap-302tive End-Users Under the Federal Energy Regulatory Commission's Order No. 636, 62 Geo. Wash. L. Rev. 718, 749 (1994) ("Gas service disruptions lasting just a few days can cause severe health risks to captive end-users"). They are also buyers without the high volume requirements needed to make investment in the transaction costs of individual purchases on the open market economically feasible. Pierce, Intrastate Natural Gas Regulation: An Alternative Perspective, 9 Yale J. Reg. 407, 409-410 (1992) ("Purchasing gas service [from marketers] requires considerable time and expertise. Its benefits are likely to exceed its costs only for consumers who purchase very large quantities of gas"). The demands of this market historically arose free of any influence of differential taxation (since there was none during the pre-1978 period when only LDC's generally served end users), and because the market's economic characteristics appear to be independent of any effect attributable to the State's sales taxation as imposed today, there is good reason to assume that any pricing changes that could result from eliminating the sales tax differential challenged here would be inadequate to create competition between LDC's and marketers for the business of the utilities' core home market.On the other hand, one circumstance of this case is unlike what Arctic Maid assumed, for there is a possibility of competition between LDC's and marketers for the noncaptive market. Although the record before this Court reveals virtually nothing about the details of that competitive market, in the period under examination it presumably included bulk buyers like GMC, which have no need for bundled protection, see, e. g., State Issue: Atlanta Gas Light Takes Step to Abandon Gas Sales by Unbundling Services for Non-Core Customers, Foster Natural Gas Report, June 20, 1996, p. 22 (indicating that prior to "unbundling" marketers accounted for 80% of sales to large commercial and industrial users in Georgia), and consumers of middling volumes of natural gas who found303some value in Ohio's state-imposed protections but not enough to offset lower price at some point, see, e. g., Pierobon, Small Customers: The Yellow Brick Road to Deregulation?, 134 Pub. Utils. Fortnightly, No.6, pp. 14, 15 (1996) (marketers' efforts in California are increasingly directed to attracting consumers in the "small commercial sector," including "schools, hospitals, hotels, restaurants, laundromats, and master-metered apartments," which currently purchase bundled gas from utilities); Salpukas, New Choices for Natural Gas: Retailers Find Users Puzzled as Industry Deregulates, N. Y. Times, Oct. 23, 1996, pp. D1, D4 (indicating that some natural gas marketers in New York City are attempting to lure "mom-and-pop businesses like restaurants and dry-cleaners" away from LDC's, with mixed success). Eliminating the sales tax differential at issue here might well intensify competition between LDC's and marketers for customers in this noncaptive market.BIn sum, the LDCs' bundled product reflects the demand of a market neither susceptible to competition by the interstate sellers nor likely to be served except by the regulated natural monopolies that have historically supplied its needs. So far as this market is concerned, competition would not be served by eliminating any tax differential as between sellers, and the dormant Commerce Clause has no job to do. There is, however, a further market where the respective sellers of the bundled and unbundled products apparently do compete and may compete further. Thus, the question raised by this case is whether the opportunities for competition between marketers and LDC's in the noncaptive market requires treating marketers and utilities as alike for dormant Commerce Clause purposes. Should we accord controlling significance to the noncaptive market in which they compete, or to the noncompetitive, captive market in which the local utili-304ties alone operate? Although there is no a priori answer, a number of reasons support a decision to give the greater weight to the captive market and the local utilities' singular role in serving it, and hence to treat marketers and LDC's as dissimilar for present purposes. First and most important, we must recognize an obligation to proceed cautiously lest we imperil the delivery by regulated LDC's of bundled gas to the noncompetitive captive market. Second, as a Court we lack the expertness and the institutional resources necessary to predict the effects of judicial intervention invalidating Ohio's tax scheme on the utilities' capacity to serve this captive market. Finally, should intervention by the National Government be necessary, Congress has both the resources and the power to strike the balance between the needs of the competitive and captive markets.1Where a choice is possible, as it is here, the importance of traditional regulated service to the captive market makes a powerful case against any judicial treatment that might jeopardize LDCs' continuing capacity to serve the captive market. Largely as a response to the monopolistic shakeout that brought an end to the era of unbridled competition among gas utilities, regulation of natural gas for the principal benefit of householders and other consumers of relatively small quantities is the rule in every State in the Union. Congress has also long recognized the desirability of these state regulatory regimes. Supra, at 291-293. Indeed, half a century ago we concluded that the NGA altogether exempts state regulation of retail sales of natural gas (including in-state sales to large industrial customers) from the strictures of the dormant Commerce Clause, see Panhandle Eastern Pipe Line Co. v. Public Servo Comm'n of Ind., 332 U. S. 507 (1947), and to this day, notwithstanding the national regulatory revolution, Congress has done nothing to limit its unbroken recognition of the state regulatory authority that305has created and preserved the local monopolies.13 The clear implication is that Congress finds the benefits of the bundled product for captive local buyers well within the realm of what the States may reasonably promote and preserve.This Court has also recognized the importance of avoiding any jeopardy to service of the state-regulated captive market, and in circumstances remarkably similar to those of the present case. In Panhandle Eastern Pipe Line Co. v. Michigan Pub. Servo Comm'n, 341 U. S. 329 (1951), Ford Motor Company had entered a contract with an interstate pipeline for supply of gas at Ford's plant in Dearborn, Michigan, thus bypassing the local distribution company. The Michigan Public Service Commission ordered the pipeline to cease and desist from making direct sales of natural gas to the State's industrial customers without a certificate of public convenience and necessity, and the pipeline brought a Commerce Clause challenge to the commission's action. The Court observed that"[a]ppellant asserts a right to compete for the cream of the volume business without regard to the local public convenience or necessity. Were appellant successful in this venture, it would no doubt be reflected adversely in [the LDC's] over-all costs of service and its rates to customers whose only source of supply is [the LDC]. This clearly presents a situation of ... vital interest to the State of Michigan." Id., at 334.In view of the economic threat that competition for large industrial consumers posed to gas service to small captive13 In the present case, the parties have not briefed the question whether the present amended version of the NGA and related federal legislation continues the express Commerce Clause exemption for state regulation and taxation of retail natural gas sales recognized in Panhandle-Indiana, and we do not decide this issue. We note, however, that the language of § l(b) of the NGA, which the Panhandle-Indiana Court construed as creating the exemption, itself remains unchanged. (Compare 52 Stat. 821 with 15 U. S. C. § 717(b) (1994).)306users, the Court again reaffirmed its longstanding doctrine upholding the States' power to regulate all direct in-state sales to consumers, even if such regulation resulted in an outright prohibition of competition for even the largest end users. Id., at 336-337; see also Panhandle-Indiana, supra (upholding state regulation of direct sales to large industrial users as not pre-empted by the NGA or precluded by the dormant Commerce Clause).14The continuing importance of the States' interest in protecting the captive market from the effects of competition for the largest consumers is underscored by the common sense of our traditional recognition of the need to accommodate state health and safety regulation in applying dormant Commerce Clause principles. State regulation of natural gas sales to consumers serves important interests in health and safety in fairly obvious ways, in that requirements of dependable supply and extended credit assure that individual buyers of gas for domestic purposes are not frozen out of their houses in the cold months. We have consistently recognized the legitimate state pursuit of such interests as compatible with the Commerce Clause, which was "'never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.'" Huron Portland Cement Co. v. Detroit, 362 U. S.14 Under today's altered market structure, see supra, at 283-285, several Courts of Appeals have held that the NGA confers jurisdiction on FERC, rather than the States, to regulate such bypass arrangements for supplying gas to large industrial consumers when the sale of gas itself occurs outside the State and an interstate pipeline merely transports the gas to the industrial consumer for delivery in-state. See Cascade Natural Gas Corp. v. FERC, 955 F.2d 1412, 1414-1422 (CAlO 1992); Michigan Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 887 F.2d 1295, 12991301 (CA6 1989), cert. denied, 494 U. S. 1079 (1990); Michigan Consolidated Gas Co. v. FERC, 883 F.2d 117,121-122 (CADC 1989), cert. denied, 494 U. S. 1079 (1990). We express no view on the correctness of these decisions.307440, 443-444 (1960) (quoting Sherlock v. Alling, 93 U. S. 99, 103 (1876)). Just so may health and safety considerations be weighed in the process of deciding the threshold question whether the conditions entailing application of the dormant Commerce Clause are present.152The size of the captive market, its noncompetitive character, the values served by its traditional regulation: all counsel caution before making a choice that could strain the capacity of the States to continue to demand the regulatory benefits that have served the home market of low-volume users since natural gas became readily available. Here we have to assume that any decision to treat the LDC's as similar to the interstate marketers would change the LDCs' position in the noncaptive market in which (we are assuming) they compete, at least at the margins, by affecting the overall size of the LDCs' customer base. As we recognized in Panhandle, a change in the customer base could affect the LDCs' ability to continue to serve the captive market where there is no such competition.To be sure, what in fact would happen as a result of treating the marketers and LDC's alike we do not know. We might assume that eliminating the tax on marketers' sales would leave those sellers stronger competitors in the noncaptive market, especially at the market's boundaries, and that any resulting contraction of the LDCs' total customer base would increase the unit cost of the bundled product. We might also suppose that the State would not respond to our decision by subjecting the LDC's and marketers both to the15 Of course, if a State discriminates against out-of-state interests by drawing geographical distinctions between entities that are otherwise similarly situated, such facial discrimination will be subject to a high level of judicial scrutiny even if it is directed toward a legitimate health and safety goal. See, e. g., Philadelphia v. New Jersey, 437 U. S. 617, 626-628 (1978); Dean Milk Co. v. Madison, 340 U. S. 349, 353-354 (1951).308same sales tax now imposed on marketers alone, since the utilities are already subject to a complicated scheme of property taxation quite different from the tax treatment of the marketers.16 It seems, in fact, far more likely that eliminating the tax challenged here would portend, among other things, some reduction of the total taxes levied against LDC's, in order to strengthen their position in trying to compete with marketers in the noncaptive market.The degree to which these very general suggestions might prove right or wrong, however, is not really significant; the point is simply that all of them are nothing more than suggestions, pointedly couched in terms of assumption or supposition. This is necessarily so, simply because the Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them. See, e. g., Fulton Corp. v. Faulkner, 516 U. S., at 341-342, and authorities cited therein; Hunter, Federalism and State Taxation of Multistate Enterprises, 32 Emory L. J. 89, 108 (1983) ("It is virtually impossible for a court, with its limited resources, to determine with any degree of accuracy the costs to a town, county, or state of a particular industry"); see also Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1211 (1986) (noting that "[e]ven expert economists" may have difficulty determining "whether the overall economic benefits16 For example, public utilities pay personal property tax on 88% of true value, Ohio Rev. Code Ann. § 5727.111 (1996), while marketers pay personal property tax on 25% of their true value, § 5711.22(D). Public utilities also pay a special tax assessment for the expenses of the Public Utility Commission, § 4905.10 (1991), and for the expenses of the Ohio Consumer Counsel, §4911.18. Moreover, natural gas utilities must pay a gross receipts tax of 4.75% on gas sales, § 5727.38 (1996), while marketers pay none. Independent marketers, for their part, are subject to a franchise tax, § 5733.01, that does not apply to utilities, § 5733.09(a). Thus, this sales and use tax challenge would not be the last available to marketers and their customers; the franchise tax, which also does not apply to utilities, is presumably next in line.309and burdens of a regulation favor local inhabitants against outsiders"). We are consequently ill qualified to develop Commerce Clause doctrine dependent on any such predictive judgments, and it behooves us to be as reticent about projecting the effect of applying the Commerce Clause here, as we customarily are in declining to engage in elaborate analysis of real-world economic effects, Fulton Corp., supra, at 341-342, or to consider subtle compensatory tax defenses, Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 105 (1994). The most we can say is that modification of Ohio's tax scheme could subject LDC's to economic pressure that in turn could threaten the preservation of an adequate customer base to support continued provision of bundled services to the captive market. The conclusion counsels against taking the step of treating the bundled gas seller like any other, with the consequent necessity of uniform taxation of all gas sales.3Prudence thus counsels against running the risk of weakening or destroying a regulatory scheme of public service and protection recognized by Congress despite its noncompetitive, monopolistic character. Still less is that risk justifiable in light of Congress's own power and institutional competence to decide upon and effectuate any desirable changes in the scheme that has evolved. Congress has the capacity to investigate and analyze facts beyond anything the Judiciary could match, joined with the authority of the commerce power to run economic risks that the Judiciary should confront only when the constitutional or statutory mandate for judicial choice is clear. See, e. g., Bush v. Lucas, 462 U. S. 367, 389 (1983) (Congress "may inform itself through factfinding procedures such as hearings that are not available to the courts"). One need not adopt Justice Black's extreme reticence in Commerce Clause jurisprudence to recognize in this instance the soundness of his statement that a challenge310like the one before us "call[s] for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution." Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302 (1944) (concurring opinion). This conclusion applies a fortiori here, because for a half century Congress has been aware of our conclusion in Panhandle Eastern Pipe Line Co. v. Public Servo Comm'n of Ind., 332 U. S. 507 (1947), that the NGA exempts state regulation of in-state retail natural gas sales from the dormant Commerce Clause and in the years following that decision has only reaffirmed the power of the States in this regard.***Accordingly, we conclude that Ohio's regulatory response to the needs of the local natural gas market has resulted in a noncompetitive bundled gas product that distinguishes its regulated sellers from independent marketers to the point that the enterprises should not be considered "similarly situated" for purposes of a claim of facial discrimination under the Commerce Clause. GMC's argument that the State discriminates between regulated local gas utilities and unregulated marketers must therefore fail.CGMC also suggests that Ohio's tax regime "facially discriminates" because the State's sales and use tax exemption would not apply to sales by out-of-state LDC's. See, e. g., Reply Brief for Petitioner 2, n. 1. As respondent points out, however, the Ohio courts might well extend the challenged exemption to out-of-state utilities if confronted with the question. Indeed, in Carnegie Natural Gas Co. v. Tracy, No. 94-K-526 (Ohio Bd. Tax App., Nov. 17, 1995), reported in CCH Ohio Tax Rep. , 402-254, the Ohio Board of Tax Appeals accepted the argument of a Pennsylvania public util-311ity that insofar as the out-of-state utility sold natural gas to Ohio consumers it qualified as a utility under Ohio Rev. Code Ann. § 5727.01 and was therefore exempt from the State's corporate franchise tax. Out-of-state public utilities may therefore also qualify for Ohio's sales and use tax exemption. Because "we have never deemed a hypothetical possibility of favoritism to constitute discrimination that transgresses constitutional commands," Associated Industries of Mo. v. Lohman, 511 U. S., at 654, this argument, too, must be rejected.vFinally, GMC claims that Ohio's tax regime violates the Equal Protection Clause by treating LDCs' natural gas sales differently from those of producers and marketers. Once again, the hurdle facing GMC is a high one, since state tax classifications require only a rational basis to satisfy the Equal Protection Clause. See, e. g., Amerada Hess Corp. v. Director, Div. of Taxation, N. J. Dept. of Treasury, 490 U. S., at 80. Indeed, "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." Madden v. Kentucky, 309 U. S. 83, 88 (1940).It is true, of course, that in some peculiar circumstances state tax classifications facially discriminating against interstate commerce may violate the Equal Protection Clause even when they pass muster under the Commerce Clause. See Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 874883 (1985).17 But as we explain in Part IV, supra, Ohio's17 Ward involved an Alabama statute that facially discriminated against interstate commerce by imposing a lower gross premiums tax on in-state than out-of-state insurance companies. The case did not present a Commerce Clause violation only because Congress, in enacting the McCarranFerguson Act, 15 U. S. C. §§ 1011-1015, intended to authorize States to impose taxes that burden interstate commerce in the insurance field. Ward, 470 U. S., at 880. We nonetheless invalidated Alabama's classification because "neither of the two purposes furthered by the [statute] ... is legitimate under the Equal Protection Clause .... " Id., at 883.312differential tax treatment of LDC and independent marketer sales does not facially discriminate against interstate commerce. And in any event, there is unquestionably a rational basis for Ohio's distinction between these two kinds of entities.***We conclude that Ohio's differential tax treatment of public utilities and independent marketers violates neither the Commerce Clause nor the Equal Protection Clause and that petitioner's claims are without merit otherwise. The judgment of the Supreme Court of Ohio is affirmed.It is so ordered

OCTOBER TERM, 1996SyllabusGENERAL MOTORS CORP. v. TRACY, TAX COMMISSIONER OF OHIOCERTIORARI TO THE SUPREME COURT OF OHIONo. 95-1232. Argued October 7, 1996-Decided February 18, 1997Ohio imposes general sales and use taxes on natural gas purchases from all sellers, whether in-state or out-of-state, that do not meet its statutory definition of a "natural gas company." Ohio's state-regulated natural gas utilities (generally termed "local distribution companies" or LDC's) satisfy the statutory definition, but the State Supreme Court has determined that producers and independent marketers generally do not. LDC gas sales thus enjoy a tax exemption inapplicable to gas sales by other vendors. The very possibility of nonexempt gas sales reflects an evolutionary change in the natural gas industry's structure. Traditionally, nearly all sales of natural gas directly to consumers were by LDC's, and were therefore exempt from Ohio's sales and use taxes. As a result of congressional and regulatory developments, however, a new market structure has evolved in which consumers, including large industrial end users, may buy gas from producers and independent marketers rather than from LDC's, and pay pipelines separately for transportation. Indeed, during the tax period in question, petitioner General Motors Corporation (GMC) bought virtually all the gas for its plants from out-ofstate independent marketers, rather than from LDC's. Respondent Tax Commissioner applied the general use tax to GMC's purchases, and the State Board of Tax Appeals sustained that action. GMC argued on appeal, inter alia, that denying a tax exemption to sales by marketers but not LDC's violates the Commerce and Equal Protection Clauses. The Supreme Court of Ohio initially concluded that the tax regime does not violate the Commerce Clause because Ohio taxes natural gas sales at the same rate for both in-state and out-of-state companies that do not meet the statutory definition of "natural gas company." The court then stepped back to hold, however, that GMC lacked standing to bring a Commerce Clause challenge, and dismissed the equal protection claim as submerged in GMC's Commerce Clause argument.Held:1. GMC has standing to raise a Commerce Clause challenge. Cognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates. Customers of that class may also be injured, as in this case where the customer is liable to pay the tax and as a result279presumably pays more for gas purchased from out-of-state producers and marketers. See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 267. pp. 286-287.2. Ohio's differential tax treatment of natural gas sales by public utilities and independent marketers does not violate the Commerce Clause. pp. 287-311.(a) Congress and this Court have long recognized the value of state-regulated monopoly arrangements for gas sales and distribution directly to local consumers. See, e. g., Panhandle Eastern Pipe Line Co. v. Michigan Pub. Servo Comm'n, 341 U. S. 329. Even as congressional and regulatory developments resulted in increasing opportunity for a consumer to choose between gas sold by marketers and gas bundled with state-mandated rights and benefits as sold by LDC's, two things remained the same: Congress did nothing to limit the States' traditional autonomy to authorize and regulate local gas franchises, and those franchises continued to provide bundled gas to the vast majority of consumers who had neither the capacity to buy on the interstate market nor the resilience to forgo the reliability and protection that state regulation provided. To this day, all 50 States recognize the need to regulate utilities engaged in local gas distribution. Pp.288-297.(b) Any notion of discrimination under the Commerce Clause assumes a comparison of substantially similar entities. When the allegedly competing entities provide different products, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. If the difference in products means that the entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed, eliminating the burden would not serve the dormant Commerce Clause's fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors. Here, the LDCs' bundled product reflects the demand of a core market-typified by residential customers to whom stability of rate and supply is important-that is neither susceptible to competition by the interstate sellers nor likely to be served except by the regulated natural monopolies that have historically supplied its needs. So far as this noncompetitive market is concerned, competition would not be served by eliminating any tax differential as between sellers, and the dormant Commerce Clause has no job to do. On the other hand, eliminating the tax differential at issue might well intensify competition between LDC's and marketers for the noncaptive market of bulk buyers like GMC, which have no need for bundled protection. Thus, the question here is whether the existence of competition between marketers and LDC's in the noncaptive market requires treating the entities as alike for dor-280Full Text of Opinion

1988_87-1383

JUSTICE BLACKMUN delivered the opinion of the Court.In this case, we consider whether and under what circumstances a civil penalty may constitute "punishment" for the purposes of double jeopardy analysis. [Footnote 1] Page 490 U. S. 437IRespondent Irwin Halper worked as manager of New City Medical Laboratories, Inc., a company which provided medical service in New York City for patients eligible for benefits under the federal Medicare program. In that capacity, Halper submitted to Blue Cross and Blue Shield of Greater New York, a fiscal intermediary for Medicare, 65 separate false claims for reimbursement for service rendered. Specifically, on 65 occasions during 1982 and 1983, Halper mischaracterized the medical service performed by New City, demanding reimbursement at the rate of $12 per claim when the actual service rendered entitled New City to only $3 per claim. Duped by these misrepresentations, Blue Cross overpaid New City a total of $585; Blue Cross passed these overcharges along to the Federal Government. [Footnote 2]The Government became aware of Halper's actions and in April, 1985, it indicted him on 65 counts of violating the criminal false-claims statute, 18 U.S.C. § 287, which prohibits"make[ing] or present[ing] . . . any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent."Halper was convicted on all 65 counts, as well as on 16 counts of mail fraud. He was sentenced in July, 1985, to imprisonment for two years and fined $5,000. Page 490 U. S. 438The Government then brought the present action in the United States District Court for the Southern District of New York against Halper and another, who later was dismissed from the case, see App. 21, 36, under the civil False Claims Act (Act), 31 U.S.C. §§ 3729-3731. That Act was violated when"[a] person not a member of an armed force of the United States . . . (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved."§ 3729. Based on facts established by Halper's criminal conviction and incorporated in the civil suit, the District Court granted summary judgment for the Government on the issue of liability. 660 F. Supp. 531, 532-533 (1987).The court then turned its attention to the remedy for Halper's multiple violations. The remedial provision of the Act stated that a person in violation is"liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action."31 U.S.C. § 3729 (1982 ed., Supp. II). [Footnote 3] Having violated the Act 65 separate times, Halper thus appeared to be subject to a statutory penalty of more than $130,000.The District Court, however, concluded that, in light of Halper's previous criminal punishment, an additional penalty this large would violate the Double Jeopardy Clause. Although the court recognized that the statutory provisions for a civil sanction of $2,000 plus double damages for a claims violation was not, in itself, criminal punishment, it concluded that this civil remedy, designed to make the Government whole, would constitute a second punishment for double jeopardy Page 490 U. S. 439 analysis if, in application, the amount of the penalty was "entirely unrelated" to the actual damages suffered and the expenses incurred by the Government. 660 F. Supp. at 533. In the District Court's view, the authorized recovery of more than $130,000 bore no "rational relation" to the sum of the Government's $585 actual loss plus its costs in investigating and prosecuting Halper's false claims. Ibid. The court therefore ruled that imposition of the full amount would violate the Double Jeopardy Clause by punishing Halper a second time for the same conduct. To avoid this constitutional proscription, the District Court read the $2,000-per-count statutory penalty as discretionary and, approximating the amount required to make the Government whole, imposed the full sanction for only 8 of the 65 counts. The court entered summary judgment for the Government in the amount of $16,000. Id. at 534.The United States, pursuant to Federal Rule of Civil Procedure 59(e), moved for reconsideration. The motion was granted. On reconsideration, the court confessed error in ruling that the $2,000 penalty was not mandatory for each count. 664 F. Supp. 852, 853-854 (1987). It remained firm, however, in its conclusion that the $130,000 penalty could not be imposed because, in the circumstances before it, that amount would violate the Double Jeopardy Clause's prohibition of multiple punishments. Ibid. Looking to United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943), for guidance, the court concluded that, although a penalty that is more than the precise amount of actual damages is not necessarily punishment, a penalty becomes punishment when, quoting Justice Frankfurter's concurrence in Hess, id. at 317 U. S. 554, it exceeds what "could reasonably be regarded as the equivalent of compensation for the Government's loss.'" 664 F. Supp. at 854. Applying this principle, the District Court concluded that the statutorily authorized penalty of $130,000, an amount more than 220 times greater than the Government's measurable loss, qualified as punishment which, in Page 490 U. S. 440 view of Halper's previous criminal conviction and sentence, was barred by the Double Jeopardy Clause. Because it considered the Act unconstitutional as applied to Halper, the District Court amended its judgment to limit the Government's recovery to double damages of $1,170 and the costs of the civil action. Id. at 855.The United States, pursuant to 28 U.S.C. § 1252, took a direct appeal to this Court. We noted probable jurisdiction, 486 U.S. 1053 (1988), in order to determine the constitutionality of the remedial provisions of the civil False Claims Act as applied in Halper's case.IIThis Court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e.g., North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 717 (1969). The third of these protections -- the one at issue here -- has deep roots in our history and jurisprudence. As early as 1641, the Colony of Massachusetts in its "Body of Liberties" stated: "No man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse." American Historical Documents 1000-1904, 43 Harvard Classics 66, 72 (C. Eliot ed.1910). In drafting his initial version of what came to be our Double Jeopardy Clause, James Madison focused explicitly on the issue of multiple punishment: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence." 1 Annals of Cong. 434 (1789-1791) (J. Gales ed. 1834). In our case law, too, this Court, over a century ago, observed:"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence."Ex parte Lange, 18 Wall. 163, 85 U. S. 168 (1874). Page 490 U. S. 441The multiple punishment issue before us is narrowly framed by the common understandings of the parties to this case. They do not dispute that respondent Halper already has been punished as a result of his prior criminal proceeding when he was sentenced to a jail term and fined $5,000. Nor do they dispute that the instant proceeding and the prior criminal proceeding concern the same conduct, the submission of 65 false claims. [Footnote 4] The sole question here is whether the statutory penalty authorized by the civil False Claims Act, under which Halper is subject to liability of $130,000 for false claims amounting to $585, constitutes a second "punishment" for the purpose of double jeopardy analysis.The Government argues that in three previous cases, Helvering v. Mitchell, 303 U. S. 391 (1938), United States ex rel. Marcus v. Hess, supra, and Rex Trailer Co. v. United States, 350 U. S. 148 (1956), this Court foreclosed any argument that a penalty assessed in a civil proceeding, and specifically in a civil False Claims Act proceeding, may give rise to double jeopardy. Specifically, the Government asserts that these cases establish three principles: first, that the Double Jeopardy Clause's prohibition against multiple punishment protects against only a second criminal penalty; second, that criminal penalties are imposed only in criminal proceedings; and, third, that proceedings under, and penalties authorized by, the civil False Claims Act are civil in nature. In addition, the Government argues on the basis of these three cases and others, see, e.g., United States v. Ward, 448 U. S. 242 (1980), that whether a proceeding or penalty is civil or criminal is a matter of statutory construction, and that Congress clearly intended the proceedings and penalty at issue here to be civil in nature.The Government, in our view, has misconstrued somewhat the nature of the multiple punishment inquiry, and, in so doing, has overread the holdings of our precedents. Although, Page 490 U. S. 442 taken together, these cases establish that proceedings and penalties under the civil False Claims Act are indeed civil in nature, and that a civil remedy does not rise to the level of "punishment" merely because Congress provided for civil recovery in excess of the Government's actual damages, they do not foreclose the possibility that, in a particular case, a civil penalty authorized by the Act may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment.In Mitchell, the Commissioner of Internal Revenue determined that the taxpayer fraudulently had asserted large sums as deductions on his 1929 income tax return. Mitchell was indicted and prosecuted for willful evasion of taxes. At trial, however, he was acquitted. The Government then brought an action to collect a deficiency of $728,709.84 in Mitchell's tax and, as well, a 50% additional amount specified by statute on account of the fraud. Mitchell argued that this second action subjected him to double jeopardy because the 50% addition was intended as punishment, and that the supposedly civil assessment proceeding therefore was actually a second criminal proceeding based on a single course of conduct.This Court did not agree. The Double Jeopardy Clause, it noted, "prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." 303 U.S. at 303 U. S. 399. Because Mitchell was acquitted (and therefore not punished) in his criminal prosecution, the Court was called upon to determine only whether the statute imposed a criminal sanction -- in which case the deficiency proceeding would be an unconstitutional second attempt to punish criminally. Whether the statutory sanction was criminal in nature, the Court held, was a question of statutory interpretation; and, applying traditional canons of construction, the Court had little difficulty concluding that Congress intended that the statute impose a civil penalty, and that the deficiency sanction was in fact remedial, providing reimbursement to Page 490 U. S. 443 the Government for investigatory and other costs of the taxpayer's fraud. Id. at 303 U. S. 398-405. Since, "in the civil enforcement of a remedial sanction, there can be no double jeopardy," id. at 303 U. S. 404, the Court rejected Mitchell's claim.Mitchell at most is of tangential significance for our current inquiry. While the opinion makes clear that the Government may impose both a criminal and a civil sanction with respect to the same act or omission, and that whether a given sanction is criminal is a matter of statutory construction, it simply does not address the question we face today: whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes "punishment" for the purpose of double jeopardy analysis. If anything, Justice Brandeis' carefully crafted opinion for the Court intimates that a civil sanction may constitute punishment under some circumstances. As noted above, the Court distinguished between the Double Jeopardy Clause's prohibition against "attempting a second time to punish criminally" and its prohibition against "merely punishing twice." Id. at 303 U. S. 399. The omission of the qualifying adverb "criminally" from the formulation of the prohibition against double punishment suggests, albeit indirectly, that "punishment" indeed may arise from either criminal or civil proceedings. See also United States v. La Franca, 282 U. S. 568, 282 U. S. 573 (1931) (asking, but not answering, the question whether a penalty assessed in a civil proceeding may nonetheless constitute punishment for the purposes of double jeopardy analysis).United States ex rel. Marcus v. Hess is closer to the point, but it, too, does not preclude the District Court's judgment. In Hess, electrical contractors were indicted for defrauding the Government by bidding collusively on public works projects. They pleaded nolo contendere and were fined $54,000. 317 U.S. at 317 U. S. 545. Subsequently, a group of private plaintiffs brought a qui tam action in the name of the United States against the defendants pursuant to a statute providing that a person guilty of defrauding the Government Page 490 U. S. 444 was subject to a civil penalty of $2,000 for each violation, double the amount of actual damages, and the costs of the suit. [Footnote 5] The plaintiffs obtained a judgment for $315,000, of which $112,000 reflected the $2,000 per-count figure for the 56 counts and $203,000 was for double damages. Id. at 317 U. S. 540.The defendants challenged the judgment on double jeopardy grounds, arguing, as did the defendant in Mitchell, that the proceeding was barred as a second attempt to punish the defendants criminally. This Court dispensed with this claim of criminal punishment, precisely as it had in Mitchell, by reference to the statute. The Court held that the chief purpose of the statute"was to provide for restitution to the government of money taken from it by fraud, and that the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole."317 U.S. at 317 U. S. 551-552. Since proceedings under the statute were remedial and designed to "protect the government from financial loss" -- rather than to "vindicate public justice" -- they were civil in nature. Id. at 317 U. S. 548-549.Because the defendants in Hess had been punished in a prior criminal proceeding (as Mitchell had not), the Court faced a further double jeopardy problem: whether (as in the instant case) the second sanction was barred because it constituted a second punishment. Under the qui tam provision of the statute, the Government's share of the recovery was $150,000, id. at 317 U. S. 545, for actual damages of $101,500. Although the recovery was greater than the precise amount of the actual damages, the Court recognized, at least with respect to "the remedy now before [it]," that the lump sum and double damages provided by statute did not "do more than Page 490 U. S. 445 afford the government complete indemnity for the injuries done it." Id. at 317 U. S. 549. Those injuries, of course, included not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government's efforts to root out deceptive practices directed at the public purse. Id. at 317 U. S. 551-552. Since the actual costs to the Government roughly equaled the damages recovered, in rejecting the defendants' double jeopardy claim, the Court simply did not face the stark situation presently before us, where the recovery is exponentially greater than the amount of the fraud, and, at least in the District Court's informed view, is also many times the amount of the Government's total loss.Nor did the Court face such a situation in Rex Trailer. In that case, the defendants fraudulently purchased five trucks under the Surplus Property Act of 1944 by claiming veteran priority rights to which they were not entitled. They pleaded nolo contendere to criminal charges and paid fines aggregating $25,000. The Government then brought a civil action under the Surplus Property Act of 1944, 58 Stat. 765, 780, which provided three alternative civil remedies: (1) $2,000 for each act plus double damages and costs; (2) recovery "as liquidated damages" of twice the consideration agreed to be given; and (3) recovery of the property plus, "as liquidated damages," retention of the consideration given. See 350 U.S. at 350 U. S. 149, n. 1. The Government sought the first of these remedies which the Court considered "comparable to the recovery under liquidated damage provisions which fix compensation for anticipated loss." Id. at 350 U. S. 153. The Court rejected the defendants' claim that the $2,000-per-count penalty constituted a second punishment. Although the Court recognized that the Government's actual loss due to the defendants' fraud was difficult, if not impossible, to ascertain, it recognized that the Government did sustain injury due to the resultant decrease of motor vehicles available to Government agencies, an increase in undesirable speculation, and damage Page 490 U. S. 446 to its program of promoting bona fide sales to veterans. [Footnote 6] Since the function of a liquidated damages provision was to provide a measure of recovery where damages are difficult to quantify, the Court found on the record before it -- where the defendants were liable for only $10,000 -- that they had not been subjected to a "measure of recovery . . . so unreasonable or excessive" as to constitute a second criminal punishment in violation of double jeopardy. Id. at 350 U. S. 154. See also One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 409 U. S. 237 (1972) (customs forfeiture "provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses").The relevant teaching of these cases is that the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. These cases do not tell us, because the problem was not presented in them, what the Constitution commands when one of those imprecise formulas authorizes a supposedly remedial sanction that does not remotely approximate the Government's damages and actual costs, and rough justice becomes clear injustice. That such a circumstance might arise appears to be anticipated not only in Mitchell, as noted above, but also in the explicitly case-specific holdings of Hess and Rex Trailer.IIIWe turn, finally, to the unresolved question implicit in our cases: whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause. As noted above, the Government takes Page 490 U. S. 447 the position that punishment in the relevant sense is meted out only in criminal proceedings, and that whether proceedings are criminal or civil is a matter of statutory construction. The Government correctly observes that this Court has followed this abstract approach when determining whether the procedural protections of the Sixth Amendment apply to proceedings under a given statute, in affixing the appropriate standard of proof for such proceedings, and in determining whether double jeopardy protections should be applied. See United States v. Ward, 448 U.S. at 448 U. S. 248-251. But while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the "humane interests" safeguarded by the Double Jeopardy Clause's proscription of multiple punishments. See Hess, 317 U.S. at 317 U. S. 554 (concurring opinion of Frankfurter, J.). This constitutional protection is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state. [Footnote 7]In making this assessment, the labels "criminal" and "civil" are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. Ibid. [Footnote 8] The Page 490 U. S. 448 notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and, for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads. Cf. Hicks v. Feiock, 485 U. S. 624, 485 U. S. 631 (1988) ("[T]he labels affixed either to the proceeding or to the relief imposed . . . are not controlling, and will not be allowed to defeat the applicable protections of federal constitutional law"). To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.These goals are familiar. We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 168 (1963) (these are the "traditional aims of punishment"). Furthermore, "[r]etribution and deterrence are not legitimate nonpunitive governmental objectives." Bell v. Wolfish, 441 U. S. 520, 441 U. S. 539, n. 20 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U.S. at 372 U. S. 169 (whether sanction appears excessive in relation to its nonpunitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that, under the Double Jeopardy Clause, a defendant who already has been Page 490 U. S. 449 punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.We acknowledge that this inquiry will not be an exact pursuit. In our decided cases, we have noted that the precise amount of the Government's damages and costs may prove to be difficult, if not impossible, to ascertain. See, e.g., Rex Trailer, 350 U.S. at 350 U. S. 153. Similarly, it would be difficult, if not impossible in many cases, for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment. In other words, as we have observed above, the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice. Our upholding reasonable liquidated damages clauses reflects this unavoidable imprecision. Similarly, we have recognized that, in the ordinary case, fixed-penalty-plus-double-damages provisions can be said to do no more than make the Government whole.We cast no shadow on these time-honored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixed penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. [Footnote 9] Page 490 U. S. 450 We must leave to the trial court the discretion to determine on the basis of such an accounting the size of the civil sanction the Government may receive without crossing the line between remedy and punishment. Cf. Morris v. Mathews, 475 U. S. 237 (1986) (reducing criminal conviction to lesser included offense in order to avoid double jeopardy bar); see also Peterson v. Richardson, 370 F. Supp. 1259, 1267 (ND Tex 1973), aff'd, sub nom. Peterson v. Weinberger, 508 F.2d 45 (CA5), cert. denied sub nom. Peterson v. Mathews, 423 U.S. 830 (1975) (imposing less than full civil sanction authorized by False Claims Act when the full sanction would be unreasonable and not remotely related to actual loss). While the trial court's judgment in these matters often may amount to no more than an approximation, even an approximation will go far towards ensuring both that the Government is fully compensated for the costs of corruption and that, as required by the Double Jeopardy Clause, the defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment.We do not consider our ruling far-reaching or disruptive of the Government's need to combat fraud. Nothing in today's ruling precludes the Government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive. In such a case, the Double Jeopardy Clause simply is not implicated. Nor does the decision prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized Page 490 U. S. 451 criminal penalties in the same proceeding. In a single proceeding, the multiple punishment issue would be limited to ensuring that the total punishment did not exceed that authorized by the legislature. See, e.g., Missouri v. Hunter, 459 U. S. 359, 459 U. S. 368-369 (1983) ("Where . . . a legislature specifically authorizes cumulative punishment under two statutes . . . the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial"). [Footnote 10] Finally, nothing in today's opinion precludes a private party from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment. The protections of the Double Jeopardy Clause are not triggered by litigation between private parties. [Footnote 11] In other words, the only proscription established by our ruling is that the Government may not criminally prosecute a defendant, impose a criminal penalty upon him, and then bring a separate civil action based on the same conduct and receive a judgment that is not rationally related to the goal of making the Government whole. [Footnote 12] Page 490 U. S. 452IVReturning to the case at hand, the District Court found a "tremendous disparity" between the Government's actual damages and the civil penalty authorized by the Act. 664 F. Supp. at 855. The court approximated the Government's expenses at no more than $16,000, as compared to the asserted liability of Halper in excess of $130,000. 660 F. Supp. at 534. Although the Government apparently did not challenge the District Court's figure -- choosing instead to litigate the legal issue we now decide -- we think it unfair to deprive the Government of an opportunity to present to the District Court an accounting of its actual costs arising from Halper's fraud, to seek an adjustment of the District Court's approximation, and to recover its demonstrated costs. While we agree with the District Court that the disparity between its approximation of the Government's costs and Halper's $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy, we remand the case to permit the Government to demonstrate that the District Court's assessment of its injuries was erroneous.The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Halper, 490 U.S. 435 (1989)United States v. HalperNo. 87-1383Argued January 17, 1989Decided May 15, 1989490 U.S. 435SyllabusAfter respondent, the manager of a company which provided medical services for patients eligible for federal Medicare benefits, was convicted, inter alia, of submitting 65 false claims for Government reimbursement in violation of the federal criminal false-claims statute, he was sentenced to prison and fined $5,000. Based solely on facts established by his criminal conviction, the District Court then granted the Government summary judgment in its suit against him under the federal civil False Claims Act (Act). Under the strict terms of that Act's remedial provision, as it then existed, respondent would have been liable for a civil penalty of $2,000 on each of the 65 false claims, as well as for twice the amount of the Government's actual damages of $585 and the costs of the action. However, because the statutorily authorized recovery of more than $130,000 bore no "rational relation" to the sum of the Government's actual loss plus its costs in investigating and prosecuting the false claims, which the court approximated at no more than $16,000, the court held that imposition of the full statutory amount would violate the Double Jeopardy Clause of the Fifth Amendment by punishing respondent a second time for the same conduct for which he had been convicted. Since it considered the Act unconstitutional as applied to respondent, the court limited the Government's recovery to double damages and costs. The Government took a direct appeal to this Court.Held: The statutory penalty authorized by the Act, as applied to respondent, violates the Double Jeopardy Clause. Pp. 490 U. S. 440-452.(a) Although Helvering v. Mitchell, 303 U. S. 391, United States ex rel. Marcus v. Hess, 317 U. S. 537, and Rex Trailer Co. v. United States, 350 U. S. 148, establish that proceedings and penalties under the Act are civil in nature, and that a civil remedy does not constitute multiple punishment violative of the Clause merely because Congress provided for civil recovery in excess of the Government's actual damages, those cases did not consider and do not foreclose the possibility that, in a particular case, a civil penalty authorized by the Act may be so extreme and so divorced from the Government's actual damages and expenses as to constitute prohibited "punishment." Pp. 490 U. S. 440-446.(b) In the rare case such as the present, where a prolific but small-gauge offender previously has sustained a criminal penalty, and the civil Page 490 U. S. 436 penalty sought in a subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, the defendant is entitled to an accounting of the Government's damages and costs in order to allow the trial court, in its discretion, to determine whether the penalty sought in fact constitutes a second punishment violative of the Clause and to set the size of the civil sanction the Government may receive without crossing the line between permissible remedy and prohibited punishment. Pp. 490 U. S. 446-451.(c) While the District Court correctly found that the disparity between its approximation of the Government's costs and respondent's statutory liability is sufficiently disproportionate that the sanction provided by the Act constitutes a second punishment violative of double jeopardy, the case is remanded to permit the Government to demonstrate that that court's assessment of its injuries was erroneous, since it would be unfair to deprive the Government of an opportunity to present an accounting of its actual costs arising from respondent's fraud, to seek an adjustment of the court's approximation, and to recover demonstrated costs. P. 490 U. S. 452.664 F. Supp. 852, vacated and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion.

1997_96-1613

Kent L. Jones argued the cause for the United States.With him on the briefs were Acting Solicitor General Waxman, Acting Solicitor General Dellinger, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, William S. Estabrook, and Joan 1. Oppenheimer.Patrick F. McCartan argued the cause for respondent Romani Industries, Inc. With him on the brief were Gregory G. Katsas and Lawrence L. Davis.JUSTICE STEVENS delivered the opinion of the Court.The federal priority statute, 31 U. S. C. § 3713(a), provides that a claim of the United States Government "shall be paid first" when a decedent's estate cannot pay all of its debts.1 The question presented is whether that statute requires that a federal tax claim be given preference over a judgment creditor's perfected lien on real property even though such a preference is not authorized by the Federal Tax Lien Act of 1966, 26 U. S. C. § 6321 et seq.IOn January 25, 1985, the Court of Common Pleas of Cambria County, Pennsylvania, entered a judgment for $400,000 in favor of Romani Industries, Inc., and against Francis1 "§ 3713. Priority of Government claims"(a)(I) A claim of the United States Government shall be paid first when-"(A) a person indebted to the Government is insolvent and-"(i) the debtor without enough property to pay all debts makes a volun-tary assignment of property;"(ii) property of the debtor, if absent, is attached; or "(iii) an act of bankruptcy is committed; or"(B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor."(2) This subsection does not apply to a case under title 11." 31The present statute is the direct descendent of § 3466 of the Revised Statutes, which had been codified in 31 U. S. C. § 191.520J. Romani. The judgment was recorded in the clerk's office and therefore, as a matter of Pennsylvania law, it became a lien on all of the defendant's real property in Cambria County. Thereafter, the Internal Revenue Service filed a series of notices of tax liens on Mr. Romani's property. The claims for unpaid taxes, interest, and penalties described in those notices amounted to approximately $490,000.When Mr. Romani died on January 13, 1992, his entire estate consisted of real estate worth only $53,001. Because the property was encumbered by both the judgment lien and the federal tax liens, the estate's administrator sought permission from the Court of Common Pleas to transfer the property to the judgment creditor, Romani Industries, in lieu of execution. The Federal Government acknowledged that its tax liens were not valid as against the earlier judgment lien; but, giving new meaning to Franklin's aphorism that "in this world nothing can be said to be certain, except death and taxes,"2 it opposed the transfer on the ground that the priority statute (§ 3713) gave it the right to "be paid first."The Court of Common Pleas overruled the Government's objection and authorized the conveyance. The Superior Court of Pennsylvania affirmed, and the Supreme Court of the State also affirmed. 547 Pa. 41, 688 A. 2d 703 (1997). That court first determined that there was a "plain inconsistency" between § 3713, which appears to give the United States "absolute priority" over all competing claims, and the Tax Lien Act of 1966, which provides that the federal tax lien "shall not be valid" against judgment lien creditors until a prescribed notice has been given. Id., at 45, 688 A. 2d,2 Letter of Nov. 13, 1789, to Jean Baptiste Le Roy, in 10 Writings of Benjamin Franklin 69 (A. Smyth ed. 1907). As is often the case, the original meaning of the aphorism is clarified somewhat by its context: "Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes." Ibid.521at 705.3 Then, relying on the reasoning in United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979), which had noted that the Tax Lien Act of 1966 modified the Federal Government's preferred position in the tax area and recognized the priority of many state claims over federal tax liens, id., at 738, the court concluded that the 1966 Act had the effect of limiting the operation of § 3713 as to tax debts.The decision of the Pennsylvania Supreme Court conflicts with two Federal Court of Appeals decisions, Kentucky ex rel. Luckett v. United States, 383 F.2d 13 (CA6 1967), and Nesbitt v. United States, 622 F.2d 433 (CA9 1980). Moreover, in its petition for certiorari, the Government submitted that the decision is inconsistent with our holding in Thelusson v. Smith, 2 Wheat. 396 (1817), and with the admonition that "'[o]nly the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a3 The Federal Tax Lien Act of 1966, 26 U. S. C. § 6321 et seq., provides in pertinent part:"§ 6321. Lien for taxes"If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.""§ 6323. Validity and priority against certain persons"(a) Purchasers, holders of security interests, mechanic's lienors, and judgment lien creditors"The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary."Section 6323(f)(1)(A)(i) provides that the required notice "shall be filed[,] ... [i]n the case of real property, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated." If the State has not designated such an office, notice is to be filed with the clerk of the federal district court "for the judicial district in which the property subject to the lien is situated." § 6323(f)(1)(B).522command as that of [31 U. S. C. § 3713],'" United States v. Key, 397 U. S. 322, 324-325 (1970) (quoting United States v. Emory, 314 U. S. 423, 433 (1941)). We granted certiorari, 521 U. S. 1117 (1997), to resolve the conflict and to consider whether Thelusson, Key, or any of our other cases construing the priority statute requires a different result.IIThere is no dispute about the meaning of two of the three statutes that control the disposition of this case. It is therefore appropriate to comment on the Pennsylvania lien statute and the Federal Tax Lien Act before considering the applicability of the priority statute to property encumbered by an antecedent judgment creditor's lien.The Pennsylvania statute expressly provides that a judgment shall create a lien against real property when it is recorded in the county where the property is located. 42 Pa. Cons. Stat. § 4303(a) (1995). After the judgment has been recorded, the judgment creditor has the same right to notice of a tax sale as a mortgagee.4 The recording in one county does not, of course, create a lien on property located elsewhere. In this case, however, it is undisputed that the judgment creditor acquired a valid lien on the real property in4 The Pennsylvania Supreme Court has elaborated:"We must now decide whether judgment creditors are also entitled to personal or general notice by the [County Tax Claim] Bureau as a matter of due process of law."Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary's Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county." In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A. 2d 940, 943 (1984).523Cambria County before the judgment debtor's death and before the Government served notice of its tax liens. Romani Industries' lien was "perfected in the sense that there is nothing more to be done to have a choate lien-when the identity of the lienor, the property subject to the lien, and the amount of the lien are established." United States v. City of New Britain, 347 U. S. 81, 84 (1954); see also Illinois ex rel. Gordon v. Campbell, 329 U. S. 362, 375 (1946).The Federal Government's right to a lien on a delinquent taxpayer's property has been a part of our law at least since 1865.5 Originally the lien applied, without exception, to all property of the taxpayer immediately upon the neglect or failure to pay the tax upon demand.6 An unrecorded tax lien against a delinquent taxpayer's property was valid even against a bona fide purchaser who had no notice of the lien. United States v. Snyder, 149 U. S. 210, 213-215 (1893). In 1913, Congress amended the statute to provide that the fed-5 The post-Civil War Reconstruction Congress imposed a tax of three cents per pound on "the producer, owner, or holder" of cotton and a lien on the cotton until the tax was paid. Act of July 13, 1866, § 1, 14 Stat. 98. The same statute also imposed a general lien on all of a delinquent taxpayer's property, see § 9, 14 Stat. 107, which was nearly identical to a provision in the revenue Act of Mar. 3, 1865, 13 Stat. 470-471, quoted in n. 6, infra.6 The 1865 revenue Act contained the following sentence: "And if any person, bank, association, company, or corporation, liable to pay any duty, shall neglect or refuse to pay the same after demand, the amount shall be a lien in favor of the United States from the time it was due until paid, with the interests, penalties, and costs that may accrue in addition thereto, upon all property and rights to property; and the collector, after demand, may levy or by warrant may authorize a deputy collector to levy upon all property and rights to property belonging to such person, bank, association, company, or corporation, or on which the said lien exists, for the payment of the sum due as aforesaid, with interest and penalty for nonpayment, and also of such further sum as shall be sufficient for the fees, costs, and expenses of such levy." 13 Stat. 470-471. This provision, as amended, became § 3186 of the Revised Statutes.524eral tax lien "shall not be valid as against any mortgagee, purchaser, or judgment creditor" until notice has been filed with the clerk of the federal district court or with the appropriate local authorities in the district or county in which the property subject to the lien is located. Act of Mar. 4, 1913, 37 Stat. 1016. In 1939, Congress broadened the protection against unfiled tax liens to include pledgees and the holders of certain securities. Act of June 29, 1939, § 401, 53 Stat. 882-883. The Federal Tax Lien Act of 1966 again broadened that protection to encompass a variety of additional secured transactions, and also included detailed provisions protecting certain secured interests even when a notice of the federal lien previously has been filed. 80 Stat. 11251132, as amended, 26 U. S. C. § 6323.In sum, each time Congress revisited the federal tax lien, it ameliorated its original harsh impact on other secured creditors of the delinquent taxpayer.7 In this case, it is agreed that by the terms of § 6323(a), the Federal Government's liens are not valid as against the lien created by the earlier recording of Romani Industries' judgment.IIIThe text of the priority statute on which the Government places its entire reliance is virtually unchanged since its enactment in 1797.8 As we pointed out in United States v.7 For a more thorough description of the early history and of Congress' reactions to this Court's tax lien decisions, see Kennedy, The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L. J. 905, 919-922 (1954) (hereinafter Kennedy).8The Act of Mar. 3,1797, §5, 1 Stat. 515, provided:"And be it further enacted, That where any revenue officer, or other person hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall525Moore, 423 U. S. 77 (1975), not only were there earlier versions of the statute,9 but "its roots reach back even further into the English common law," id., at 80. The sovereign prerogative that was exercised by the English Crown and by many of the States as "an inherent incident of sovereignty," ibid., applied only to unsecured claims. As Justice Brandeis noted in Marshall v. New York, 254 U. S. 380, 384 (1920), the common-law priority "[did] not obtain over a specific lien created by the debtor before the sovereign undertakes to enforce its right." Moreover, the statute itself does not create a lien in favor of the United States.lO Given this background, respondent argues that the statute should be read asbe first satisfied; and the priority hereby established shall be deemed to extend, as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed." Compare §3466 of the Revised Statutes with the present statute quoted in n. 1, supra.It has long been settled that the federal priority covers the Government's claims for unpaid taxes. Price v. United States, 269 U. S. 492, 499502 (1926); Massachusetts v. United States, 333 U. S. 611, 625-626, and9"The earliest priority statute was enacted in the Act of July 31, 1789, 1 Stat. 29, which dealt with bonds posted by importers in lieu of payment of duties for release of imported goods. It provided that the 'debt due to the United States' for such duties shall be discharged first 'in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased ... .' § 21, 1 Stat. 42. A 1792 enactment broadened the Act's coverage by providing that the language 'cases of insolvency' should be taken to include cases in which a debtor makes a voluntary assignment for the benefit of creditors, and the other situations that § 3466, 31 U. S. C. § 191, now covers. 1 Stat. 263." United States v. Moore, 423 U. S., at 81.10 "In construing the statutes on this subject, it has been stated by the court, on great deliberation, that the priority to which the United States are entitled, does not partake of the character of a lien on the property of public debtors. This distinction is always to be recollected." United States v. Hooe, 3 Cranch 73, 90 (1805).526giving the United States a preference over other unsecured creditors but not over secured creditors.llThere are dicta in our earlier cases that support this contention as well as dicta that tend to refute it. Perhaps the strongest support is found in Justice Story's statement:"What then is the nature of the priority, thus limited and established in favour of the United States? Is it a right, which supersedes and overrules the assignment of the debtor, as to any property which the United States may afterwards elect to take in execution, so as to prevent such property from passing by virtue of such assignment to the assignees? Or, is it a mere right of prior payment, out of the general funds of the debtor, in the hands of the assignees? We are of opinion that it clearly falls, within the latter description. The language employed is that which naturally would be employed to express such an intent; and it must be strained from its ordinary import, to speak any other." Conard v. Atlantic Ins. Co. of N. Y., 1 Pet. 386, 439 (1828).Justice Story's opinion that the language employed in the statute "must be strained" to give it any other meaning is entitled to special respect because he was more familiar with 18th-century usage than judges who view the statute from a 20th-century perspective.We cannot, however, ignore the Court's earlier judgment in Thelusson v. Smith, 2 Wheat., at 426, or the more recent dicta in United States v. Key, 397 U. S., at 324-325. In Thelusson, the Court held that the priority statute gave the United States a preference over the claim of a judgment creditor who had a general lien on the debtor's real property.11 Although this argument was not presented to the state courts, respondent may defend the judgment on a ground not previously raised. Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983). We will rarely consider such an argument, however. Ibid.; see also Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996).527The Court's brief opinion 12 is subject to the interpretation that the statutory priority always accords the Government a preference over judgment creditors. For two reasons, we do not accept that reading of the opinion.First, as a factual matter, in 1817 when the case was decided, there was no procedure for recording a judgment and thereby creating a choate lien on a specific parcel of real estate. See generally 2 L. Dembitz, A Treatise on Land Titles in the United States § 127, pp. 948-952 (1895). Notwithstanding the judgment, a bona fide purchaser could have acquired the debtor's property free from any claims of the judgment creditor. See Semple v. Burd, 7 Sergo & Rawle 286, 291 (Pa. 1821) ("The prevailing object of the Legislature, has uniformly been, to support the security of a judgment creditor, by confirming his lien, except when it interferes with the circulation of property by embarrassing a fair purchaser"). That is not the case with respect to12 The relevant portion of the opinion reads, in full, as follows:"These [statutory] expressions are as general as any which could have been used, and exclude all debts due to individuals, whatever may be their dignity .... The law makes no exception in favour of prior judgment creditors; and no reason has been, or we think can be, shown to warrant this court in making one." ... The United States are to be first satisfied; but then it must be out of the debtor's estate. If, therefore, before the right of preference has accrued to the United States, the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt; or if his property has been seized under a ft. fa., the property is devested out of the debtor, and cannot be made liable to the United States. A judgment gives to the judgment creditor a lien on the debtor's lands, and a preference over all subsequent judgment creditors. But the act of congress defeats this preference in favour of the United States, in the cases specified in the 65th section of the act of 1799." Thelusson v. Smith, 2 Wheat. 396, 425-426 (1817).In the later Conard case, Justice Story apologized for Thelusson: "The reasons for that opinion are not, owing to accidental circumstances, as fully given as they are usually given in this Court." Conard v. Atlantic Ins. Co. of N. Y., 1 Pet. 386, 442 (1828).528Romani Industries' choate lien on the property in Cambria County.Second, and of greater importance, in his opinion for the Court in the Conard case, which was joined by Justice Washington, the author of Thelusson,13 Justice Story explained why that holding was fully consistent with his interpretation of the text of the priority statute:"The real ground of the decision, was, that the judgment creditor had never perfected his title, by any execution and levy on the Sedgely estate; that he had acquired no title to the proceeds as his property, and that if the proceeds were to be deemed general funds of the debtor, the priority of the United States to payment had attached against all other creditors; and that a mere potential lien on land, did not carry a legal title to the proceeds of a sale, made under an adverse execution. This is the manner in which this case has been understood, by the Judges who concurred in the decision; and it is obvious, that it established no such proposition, as that a specific and perfected lien, can be displaced by the mere priority of the United States; since that priority is not of itself equivalent to a lien." Conard, 1 Pet., at 444.14The Government also relies upon dicta from our opinion in United States v. Key, 397 U. S., at 324-325, which quoted from our earlier opinion in United States v. Emory, 314 U. S., at 433: "Only the plainest inconsistency would warrant our13Justice Washington's opinion for this Court in Thelusson affirmed, and was essentially the same as, his own opinion delivered in the Circuit Court as a Circuit Justice. 2 Wheat., at 426, n. h.14 Relying on this and several other cases, in 1857 the Attorney General of the United States issued an opinion concluding that Thelusson "has been distinctly overruled" and that the priority of the United States under this statute "will not reach back over any lien, whether it be general or specific." 9 Op. Atty. Gen. 28, 29. See also Kennedy 908-911 (advancing this same interpretation of the early priority Act decisions).529finding an implied exception to the operation of so clear a command as that of [§ 3713]." Because both Key and Emory were cases in which the competing claims were unsecured, the statutory command was perfectly clear even under Justice Story's construction of the statute. The statements made in that context, of course, shed no light on the clarity of the command when the United States relies on the statute as a basis for claiming a preference over a secured creditor. Indeed, the Key opinion itself made this specific point: "This case does not raise the question, never decided by this Court, whether § 3466 grants the Government priority over the prior specific liens of secured creditors. See United States v. Gilbert Associates, Inc., 345 U. S. 361, 365-366 (1953)." 397 U. S., at 332, n. 11.The Key opinion is only one of many in which the Court has noted that despite the age of the statute, and despite the fact that it has been the subject of a great deal of litigation, the question whether it has any application to antecedent perfected liens has never been answered definitively. See United States v. Vermont, 377 U. S. 351, 358, n. 8 (1964) (citing cases). In his dissent in United States v. Gilbert Associates, Inc., 345 U. S. 361 (1953), Justice Frankfurter referred to the Court's reluctance to decide the issue "not only today but for almost a century and a half." 345 U. S., at 367.The Government's priority as against specific, perfected security interests is, if possible, even less settled with regard to real property. The Court has sometimes concluded that a competing creditor who has not "divested" the debtor of "either title or possession" has only a "general, unperfected lien" that is defeated by the Government's priority. E. g., id., at 366. Assuming the validity of this "title or possession" test for deciding whether a lien on personal property is sufficiently choate for purposes of the priority statute (a question of federal law, see Illinois ex rel. Gordon v. Campbell, 329 U. S., at 371), we are not aware of any decisions since Thelusson applying that theory to claims for real prop-530erty, or of any reason to require a lienor or mortgagee to acquire possession in order to perfect an interest in real estate.Given the fact that this basic question of interpretation remains unresolved, it does not seem appropriate to view the issue in this case as whether the Tax Lien Act of 1966 has implicitly amended or repealed the priority statute. Instead, we think the proper inquiry is how best to harmonize the impact of the two statutes on the Government's power to collect delinquent taxes.IVIn his dissent from a particularly harsh application of the priority statute, Justice Jackson emphasized the importance of considering other relevant federal policies. Joined by three other Justices, he wrote:"This decision announces an unnecessarily ruthless interpretation of a statute that at its best is an arbitrary one. The statute by which the Federal Government gives its own claims against an insolvent priority over claims in favor of a state government must be applied by courts, not because federal claims are more meritorious or equitable, but only because that Government has more power. But the priority statute is an assertion of federal supremacy as against any contrary state policy. It is not a limitation on the Federal Government itself, not an assertion that the priority policy shall prevail over all other federal policies. Its generalities should not lightly be construed to frustrate a specific policy embodied in a later federal statute." Massachusetts v. United States, 333 U. S. 611, 635 (1948).On several prior occasions the Court had followed this approach and concluded that a specific policy embodied in a later federal statute should control our construction of the priority statute, even though it had not been expressly531amended. Thus, in Cook County Nat. Bank v. United States, 107 U. S. 445, 448-451 (1883), the Court concluded that the priority statute did not apply to federal claims against national banks because the National Bank Act comprehensively regulated banks' obligations and the distribution of insolvent banks' assets. And in United States v. Guaranty Trust Co. of N. Y., 280 U. S. 478, 485 (1930), we determined that the Transportation Act of 1920 had effectively superseded the priority statute with respect to federal claims against the railroads arising under that Act.The bankruptcy law provides an additional context in which another federal statute was given effect despite the priority statute's literal, unconditional text. The early federal bankruptcy statutes had accorded to "'all debts due to the United States, and all taxes and assessments under the laws thereof' " a preference that was "coextensive" with that established by the priority statute. Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U. S. 152, 158 (1912) (quoting the Bankruptcy Act of 1867, Rev. Stat. § 5101). As such, the priority Act and the bankruptcy laws "were to be regarded as in pari materia, and both were unqualified; ... as neither contained any qualification, none could be interpolated." 224 U. S., at 158. The Bankruptcy Act of 1898, however, subordinated the priority of the Federal Government's claims (except for taxes due) to certain other kinds of debts. This Court resolved the tension between the new bankruptcy provisions and the priority statute by applying the former and thus treating the Government like any other general creditor. Id., at 158-160; Davis v. Pringle, 268 U. S. 315, 317-319 (1925).1515 Congress amended the priority statute in 1978 to make it expressly inapplicable to Title 11 bankruptcy cases. Pub. L. 95-598, § 322(b), 92 Stat. 2679, codified in 31 U. S. C. § 3713(a)(2). The differences between the bankruptcy laws and the priority statute have been the subject of criticism: "[A]s a result of the continuing discrepancies between the bankruptcy and insolvency rules, some creditors have had a distinct incentive532There are sound reasons for treating the Tax Lien Act of 1966 as the governing statute when the Government is claiming a preference in the insolvent estate of a delinquent taxpayer. As was the case with the National Bank Act, the Transportation Act of 1920, and the Bankruptcy Act of 1898, the Tax Lien Act is the later statute, the more specific statute, and its provisions are comprehensive, reflecting an obvious attempt to accommodate the strong policy objections to the enforcement of secret liens. It represents Congress' detailed judgment as to when the Government's claims for unpaid taxes should yield to many different sorts of interests (including, for instance, judgment liens, mechanic's liens, and attorney's liens) in many different types of property (including, for example, real property, securities, and motor vehicles). See 26 U. S. C. § 6323. Indeed, given our unambiguous determination that the federal interest in the collection of taxes is paramount to its interest in enforcing other claims, see United States v. Kimbell Foods, Inc., 440 U. S., at 733-735, it would be anomalous to conclude that Congress intended the priority statute to impose greater burdens on the citizen than those specifically crafted for tax collection purposes.Even before the 1966 amendments to the Tax Lien Act, this Court assumed that the more recent and specific provisions of that Act would apply were they to conflict with the older priority statute. In the Gilbert Associates case, which concerned the relative priority of the Federal Government and a New Hampshire town to funds of an insolvent taxpayer, the Court first considered whether the town could qualify as a "judgment creditor" entitled to preference under the Tax Lien Act. 345 U. S., at 363-364. Only after deciding that question in the negative did the Court conclude thatto throw into bankruptcy a debtor whose case might have been handled, with less expense and less burden on the federal courts, in another form of proceeding." Plumb, The Federal Priority in Insolvency: Proposals for Reform, 70 Mich. L. Rev. 3, 8-9 (1971) (hereinafter Plumb).533the United States obtained preference by operation of the priority statute. Id., at 365-366. The Government would now portray Gilbert Associates as a deviation from two other relatively recent opinions in which the Court held that the priority statute was not trumped by provisions of other statutes: United States v. Emory, 314 U. S., at 429-433 (the National Housing Act), and United States v. Key, 397 U. S., at 324-333 (Chapter X of the Bankruptcy Act). In each of those cases, however, there was no "plain inconsistency" between the commands of the priority statute and the other federal Act, nor was there reason to believe that application of the priority statute would frustrate Congress' intent. Id., at 329. The same cannot be said in the present suit.The Government emphasizes that when Congress amended the Tax Lien Act in 1966, it declined to enact the American Bar Association's proposal to modify the federal priority statute, and Congress again failed to enact a similar proposal in 1970. Both proposals would have expressly provided that the Government's priority in insolvency does not displace valid liens and security interests, and therefore would have harmonized the priority statute with the Tax Lien Act. See Hearings on H. R. 11256 and 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 197 (1966) (hereinafter Hearings); S. 2197, 92d Cong., 1st Sess. (1971). But both proposals also would have significantly changed the priority statute in many other respects to follow the priority scheme created by the bankruptcy laws. See Hearings, at 85, 198; Plumb 10, n. 53, 33-37. The earlier proposal may have failed because its wide-ranging subject matter was beyond the House Ways and Means Committee's jurisdiction. Id., at 8. The failure of the 1970 proposal in the Senate Judiciary Committeeexplained by no reports or hearings-might merely reflect disagreement with the broad changes to the priority statute, or an assumption that the proposal was not needed because, as Justice Story had believed, the priority statute does not534apply to prior perfected security interests, or any number of other views. Thus, the Committees' failures to report the proposals to the entire Congress do not necessarily indicate that any legislator thought that the priority statute should supersede the Tax Lien Act in the adjudication of federal tax claims. They provide no support for the hypothesis that both Houses of Congress silently endorsed that position.The actual measures taken by Congress provide a superior insight regarding its intent. As we have noted, the 1966 amendments to the Tax Lien Act bespeak a strong condemnation of secret liens, which unfairly defeat the expectations of innocent creditors and frustrate "the needs of our citizens for certainty and convenience in the legal rules governing their commercial dealings." 112 Congo Rec. 22227 (1966) (remarks of Rep. Byrnes); cf. United States v. Speers, 382 U. S. 266, 275 (1965) (referring to the "general policy against secret liens"). These policy concerns shed light on how Congress would want the conflicting statutory provisions to be harmonized:"Liens may be a dry-as-dust part of the law, but they are not without significance in an industrial and commercial community where construction and credit are thought to have importance. One does not readily impute to Congress the intention that many common commercial liens should be congenitally unstable." E. Brown, The Supreme Court, 1957 Term-Foreword: Process of Law, 72 Harv. L. Rev. 77, 87 (1958) (footnote omitted).In sum, nothing in the text or the long history of interpreting the federal priority statute justifies the conclusion that it authorizes the equivalent of a secret lien as a substitute for the expressly authorized tax lien that Congress has said "shall not be valid" in a case of this kind.The judgment of the Pennsylvania Supreme Court is affirmed.It is so ordered

OCTOBER TERM, 1997SyllabusUNITED STATES v. ESTATE OF ROMANI ET AL.CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA No. 96-1613. Argued January 12, 1998-Decided April 29, 1998After a third party perfected a $400,000 judgment lien under Pennsylvania law on Francis Romani's Cambria County real property, the Internal Revenue Service filed notices of tax liens on the property, totaling some $490,000. When Mr. Romani died, his entire estate consisted of real estate worth only $53,001. Because the property was encumbered by both the judgment lien and the federal tax liens, the estate's administrator sought the county court's permission to transfer the property to the judgment creditor in lieu of execution. The court authorized the conveyance, overruling the Federal Government's objection that the transfer violated the federal priority statute, 31 U. S. C. § 3713(a), which provides that a Government claim "shall be paid first" when a decedent's estate cannot pay all of its debts. The Superior Court of Pennsylvania affirmed, as did the Pennsylvania Supreme Court. The latter court determined that there was a "plain inconsistency" between § 3713 and the Federal Tax Lien Act of 1966, which provides that a federal tax lien "shall not be valid" against judgment lien creditors until a prescribed notice has been given, 26 U. S. C. § 6323(a). The court concluded that the 1966 Act effectively limited § 3713's operation as to tax debts, relying on United States v. Kimbell Foods, Inc., 440 U. S. 715, 738, which noted that the 1966 Act modified the Government's preferred position in the tax area and recognized the priority of many state claims over federal tax liens.Held: Section 3713(a) does not require that a federal tax claim be given preference over a judgment creditor's perfected lien on real property. Pp. 522-534.(a) There is no dispute about the meaning of either the Pennsylvania lien statute or the Tax Lien Act. It is undisputed that, under the state law, the judgment creditor acquired a valid lien on Romani's real property before his death and before the Government served notice of its tax liens. That lien was therefore perfected in the sense that there is nothing more to be done to have a choate lien. E. g., United States v. City of New Britain, 347 U. S. 81, 84. And a review of the Tax Lien Act's history reveals that each time Congress has revisited the federal tax lien, it has ameliorated pre-existing harsh consequences for the delinquent taxpayer's other secured creditors. Here, all agree that by518§ 6323(a)'s terms, the Government's liens are not valid as against the earlier recorded judgment lien. Pp. 522-524.(b) Because this Court has never definitively resolved the basic question whether the federal priority statute gives the United States a preference only over other unsecured creditors, or whether it also applies to the antecedent perfected liens of secured creditors, see, e. g., United States v. Vermont, 377 U. S. 351, 358, n. 8, it does not seem appropriate to view the issue here as whether the Tax Lien Act has implicitly amended or repealed § 3713(a). Instead, the proper inquiry is how best to harmonize the two statutes' impact on the Government's power to collect delinquent taxes. Pp. 524-530.(c) Nothing in the federal priority statute's text or its long history justifies the conclusion that it authorizes the equivalent of a secret lien as a substitute for the expressly authorized tax lien that the Tax Lien Act declares "shall not be valid" in a case of this kind. On several occasions, this Court has concluded that a specific policy embodied in a later federal statute should control interpretation of the older federal priority statute, despite that law's literal, unconditional text and the fact that it had not been expressly amended by the later Act. See, e. g., Cook County Nat. Bank v. United States, 107 U. S. 445, 448-451. United States v. Emory, 314 U. S. 423, 429-433, and United States v. Key, 397 U. S. 322, 324-333, distinguished. So too here, there are sound reasons for treating the Tax Lien Act as the governing statute. That Act is the later statute, the more specific statute, and its provisions are comprehensive, reflecting an obvious attempt to accommodate the strong policy objections to the enforcement of secret liens. It represents Congress' detailed judgment as to when the Government's claims for unpaid taxes should yield to many different sorts of interests (including, e. g., judgment liens, mechanic's liens, and attorney's liens) in many different types of property (including, e. g., real property, securities, and motor vehicles). See § 6323. Indeed, given this Court's unambiguous determination that the federal interest in the collection of taxes is paramount to its interest in enforcing other claims, see Kimbell Foods, Inc., 440 U. S., at 733-735, it would be anomalous to conclude that Congress intended the priority statute to impose greater burdens on the citizen than those specifically crafted for tax collection purposes. Pp. 530-534.547 Pa. 41, 688 A. 2d 703, affirmed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 535.519Full Text of Opinion

1990_90-952

JUSTICE KENNEDY delivered the opinion of the Court.This case raises two issues under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. § 1973c.IThe Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., contains two major provisions governing discrimination in election practices. Section 2 addresses existing election procedures. It prohibits procedures that "resul[t] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. . . ." § 1973(a). Section 5 governs changes in voting procedures. In order to prevent changes that have a discriminatory purpose or effect, § 5 requires covered jurisdictions, such as Louisiana, to obtain preclearance by one of two methods before implementing new voting practices. § 1973c. Through judicial preclearance, a covered jurisdiction may obtain from the United States District Court for the District of Columbia a declaratory judgment that the voting change "does not have the purpose and Page 500 U. S. 649 will not have the effect of denying or abridging the right to vote on account of race or color." Ibid. Through administrative preclearance, the jurisdiction may submit the change to the Attorney General of the United States. If the Attorney General "has not interposed an objection within sixty days after such submission," the State may enforce the change. Ibid.Appellants are black registered voters and a voting rights organization in Louisiana. They filed this suit in 1986 under §§ 2 and 5 of the Voting Rights Act, challenging the validity of Louisiana's multimember, at-large electoral scheme for certain appellate, district, and family court judges. Under § 2, appellants alleged that Louisiana's electoral scheme diluted minority voting strength. In an amended complaint filed in July, 1987, appellants also alleged that Louisiana violated § 5 by failing to submit for preclearance a number of statutory and constitutional voting changes, many of them adopted in the late 1960's and 1970's. The § 2 portion of the case was assigned to a single District Court Judge; the § 5 allegations were heard by a three-judge District Court, 42 U.S.C. § 1973c; 28 U.S.C. § 2284.In response to the appellants' § 5 allegations, Louisiana submitted all of the unprecleared voting changes for administrative preclearance. In September, 1988, and May, 1989, the Attorney General granted preclearance for some of the changes, but objected to others. On June 18 and 20, 1990, Louisiana asked the Attorney General to reconsider his denial of preclearance for these seats, and proceeded with plans to hold elections for them in the fall of 1990. On July 23, 1990, petitioners filed a motion asking the three-judge District Court to enjoin the elections for the unprecleared seats.On August 15, 1990, the District Court presiding over the § 2 case enjoined the State from holding elections in 11 judicial districts which it determined violated § 2. Some of these judicial districts were also at issue in the § 5 portion of the case. On September 28, 1990, the three-judge District Court presiding Page 500 U. S. 650 over the § 5 case denied appellants' motion to enjoin the State from holding elections for the seats not blocked by the § 2 injunction. The three-judge panel, however, did enjoin the winning candidates from taking office pending its further orders.Also on September 28, 1990, the United States Court of Appeals for the Fifth Circuit, sitting en banc, held that judges are not representatives for purposes of § 2 of the Voting Rights Act. League of the United Latin American Citizens Council No. 444 v. Clements, 914 F.2d 620 (1990), cert. granted, 498 U. S. 1061 (1991). Based on this precedent, the District Court Judge presiding over the § 2 aspect of the case dissolved the § 2 injunction on October 2 and ordered that elections for the 11 districts be held on November 6 and December 8, 1990. On the same day, the three-judge District Court presiding over the § 5 case refused to enjoin the elections for the unprecleared seats, but it again enjoined the winning candidates from taking office pending its further orders. As of October 2, 1990, then, Louisiana had scheduled elections for all of the judgeships to which the Attorney General had interposed objections.In an October 22 order and an October 31 opinion, the three-judge District Court made its final pronouncement on the status of the unprecleared judgeships. The court divided the unprecleared electoral changes into two categories. Category one involved at-large judgeships in districts where, for the most part, the State had obtained administrative preclearance for later-created judgeships. The three-judge District Court held that, despite his current objections, the Attorney General had precleared the earlier judgeships when he precleared the later, or related, voting changes. For example, the First Judicial District Court in Caddo Parish has a number of judgeships, called Divisions, subject to § 5. Louisiana submitted and obtained approval for Divisions E (created Page 500 U. S. 651 in 1966, precleared in 1986), G (created and precleared in 1976), H (created and precleared in 1978), and I (created and precleared in 1982). Division F was not submitted for approval when it was created in 1973; rather, it was submitted and objected to in 1988. The three-judge District Court held, however, that, when the Attorney General precleared Divisions G, H, and I, he also precleared Division F. The court reasoned that, because the legislation creating Divisions G, H, and I added to the number of prior judgeships in Caddo Parish, including Division F, approval of the legislation constituted approval of Division F. 751 F. Supp. 586, 592, and n. 35 (M.D.La.1990)Category two under the court's ruling involved judgeships subject to valid objections by the Attorney General. Yet despite its holding that these unprecleared judgeships violated § 5, the court refused to enjoin the elections. It found"the potential harm to all of the citizens of Louisiana [from such an injunction] outweigh[ed] the potential harm, if any, of allowing the elections to continue."Id. at 595. It allowed the election to proceed under the following conditions. The winning candidates could take office if, within 90 days, Louisiana filed a judicial preclearance action in the United States District Court for the District of Columbia or persuaded the Attorney General to withdraw his objections. The winners of the election could remain in office pending judicial preclearance, and could retain office for the remainder of their terms if the State obtained judicial preclearance. If the State failed to obtain judicial preclearance, the installed candidates could remain in office only 150 days after final judgment by the District Court.On October 29, 1990, appellants filed an emergency application in this Court to enjoin the November 6 and December 8 elections pending appeal. On November 2, we granted the application in part and enjoined the elections for the judgeships that the District Court conceded were uncleared. Clark v. Roemer, 498 U.S. 953, modified, 498 U.S. 954 (1990). We did not overturn the District Court's refusal to Page 500 U. S. 652 enjoin elections for the judgeships that it considered precleared by implication. Ibid.On January 18, 1991, we noted probable jurisdiction. 498 U.S. 1060. The next day, the State sought judicial preclearance for the electoral changes that the three-judge District Court found to be uncleared. That action is still pending in the United States District Court for the District of Columbia.IIThe case presents two discrete issues under § 5 of the Voting Rights Act. First, we must decide whether the District Court erred by not enjoining elections held for judgeships to which the Attorney General interposed valid § 5 objections. Second, we must determine whether the State's failure to preclear certain earlier voting changes under § 5 was cured by the Attorney General's preclearance of later, or related, voting changes.AThe District Court held that the Attorney General had interposed valid objections to some judgeships. Nonetheless, it permitted elections for those seats to go forward and allowed the winners to take office pending resolution of Louisiana's judicial preclearance request. This ruling was error.Section 5 requires States to obtain either judicial or administrative preclearance before implementing a voting change. A voting change in a covered jurisdiction "will not be effective as la[w] until and unless cleared" pursuant to one of these two methods. Connor v. Waller, 421 U. S. 656 (1975) (per curiam). See also United States v. Board of Supervisors of Warren County, 429 U. S. 642, 429 U. S. 645 (1977) ("No new voting practice or procedure may be enforced unless the State or political subdivision has succeeded in its declaratory judgment action or the Attorney General has declined to object"). Failure to obtain either judicial or administrative preclearance "renders the change unenforceable." Hathorn v. Lovorn, 457 U. S. 255, 457 U. S. 269 (1982). If voting changes subject Page 500 U. S. 653 to § 5 have not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting the State from implementing the changes. Allen v. State Bd. of Elections, 393 U. S. 544, 393 U. S. 572 (1969).The District Court ignored these principles altogether. It presented a number of reasons for not enjoining the election, none of which we find persuasive. The court cited the short time between election day and the most recent request for injunction, the fact that qualifying and absentee voting had begun, and the time and expense of the candidates. But the parties, the District Court, and the candidates had been on notice of the alleged § 5 violations since appellants filed their July, 1987, amended complaint. When Louisiana asked the Attorney General for reconsideration of its original preclearance decision in June, 1990, it became apparent that the State intended to hold elections for the unprecleared seats in the fall of the same year. Less than a month later, and more than two months before the scheduled October 6, 1990, election, appellants filed a motion to enjoin elections for the unprecleared seats. Appellants displayed no lack of diligence in challenging elections for the unprecleared seats, and every participant in the process knew for over three years that the challenged seats were unprecleared, in violation of § 5.The other reasons for the District Court's decision lack merit as well. The District Court maintained that the applicability of § 5 to judges was uncertain until our summary affirmance in Brooks v. Georgia State Board of Elections, 775 F. Supp. 1470, aff'd, 498 U.S. 916 (1990). But in Haith v. Martin, 618 F. Supp. 410 (EDNC 1985), aff'd mem., 477 U.S. 901 (1986), we issued a summary affirmance of a decision holding that § 5 applied to judges. Nor did the District Court's vague concerns about voter confusion and low voter turnout in a special election for the unprecleared seats justify its refusal to enjoin the illegal elections. Voters may be more confused and inclined to avoid the polls when an election is held Page 500 U. S. 654 in conceded violation of federal law. Finally, the District Court's stated purpose to avoid possible challenges to criminal and civil judgments does not justify allowing the invalid elections to take place. To the contrary, this concern counsels in favor of enjoining the illegal elections, thus averting a federal challenge to state judgments.The three-judge District Court, 751 F. Supp. at 595, maintained that its decision to give provisional effect to elections conducted in violation of § 5 "closely parallel[ed]" a number of our decisions, including Perkins v. Matthews, 400 U. S. 379 (1971), NAACP v. Hampton County Election Commission, 470 U. S. 166 (1985), Berry v. Doles, 438 U. S. 190 (1978), and Georgia v. United States, 411 U. S. 526 (1973). The cases are inapposite. Perkins stated that,"[i]n certain circumstances . . . , it might be appropriate to enter an order affording local officials an opportunity to seek federal approval and ordering a new election only if local officials fail to do so or if the required federal approval is not forthcoming."400 U.S. at 400 U. S. 396-397. But in Perkins, as in Hampton County, Berry, and Georgia, the elections in question had been held already; the only issue was whether to remove the elected individuals pending preclearance. Here the District Court did not face the ex post question whether to set aside illegal elections; rather, it faced the ex ante question whether to allow illegal elections to be held at all. On these premises, § 5's prohibition against implementation of unprecleared changes required the District Court to enjoin the election. This is especially true because, unlike the circumstance in Perkins, Hampton County, Berry, or Georgia, the Attorney General interposed objections before the election.We need not decide today whether there are cases in which a District Court may deny a § 5 plaintiff's motion for injunction and allow an election for an unprecleared seat to go forward. An extreme circumstance might be present if a seat's unprecleared status is not drawn to the attention of the State until the eve of the election and there are equitable principles Page 500 U. S. 655 that justify allowing the election to proceed. No such exigency exists here. The State of Louisiana failed to preclear these judgeships as required by § 5. It received official notice of the defect in July, 1987, and yet, three years later, it had still failed to file for judicial preclearance, the "basic mechanism" for preclearance, United States v. Sheffield Board of Comm'rs, 435 U. S. 110, 435 U. S. 136 (1978). It scheduled elections for the unprecleared seats in the fall of 1990 even after the Attorney General had interposed objections under § 5. In short, by the fall 1990 election, Louisiana had with consistency ignored the mandate of § 5. The District Court should have enjoined the elections.BThe District Court held also that the Attorney General's preclearance of voting change legislation in some districts operated to preclear earlier voting changes in those districts, even though the Attorney General now objects to the earlier changes. This ruling conflicts with our decision in McCain v. Lybrand, 465 U. S. 236 (1984), and subverts the efficacy of administrative preclearance under § 5.McCain involved a 1966 South Carolina statute establishing a three-member county council elected at large by all county voters and requiring candidates to reside in and run from one of three residency districts. The State failed to preclear the 1966 statute. In 1971, the State amended the statute to increase the number of residency districts and county council members from three to five, and submitted the new Act for preclearance. Based on a request by the Attorney General for additional information, South Carolina also submitted a copy of the 1966 Act. The Attorney General declined to interpose any objection "to the change in question." Id. at 465 U. S. 241. In a later § 5 challenge to the 1966 changes, a District Court held that the Attorney General's request for additional information indicated that he considered and approved all aspects of the electoral scheme subject Page 500 U. S. 656 to the 1971 amendments, including the changes effected by the 1966 Act. In the alternative, the District Court held that, since the 1971 Amendment retained or incorporated changes effected by the 1966 Act, the lack of objection to the 1971 submission constituted approval of the 1966 Act.We reversed both holdings. We made clear that the submission of legislation for administrative preclearance under § 5 defines the scope of the preclearance request. Under normal circumstances, a submission pertains only to identified changes in that legislation. Id. at 465 U. S. 251, 465 U. S. 257. We established also that any ambiguity in the scope of a preclearance request must be resolved against the submitting authority. Ibid. Applying these standards, we held that the three-judge District Court's finding that the Attorney General had considered and approved the changes made by the 1966 Act in the course of approving the 1971 amendment was clearly erroneous, because the information submitted was limited to election changes effected by the 1971 amendments.We held further that the District Court erred as a matter of law in determining that approval of the 1971 submission was also an approval of the changes in the 1966 statute. We explained that "the preclearance procedures mandated by § 5 . . . focus entirely on changes in election practices," id. at 465 U. S. 251, and that "submission of a particular change does not encompass all prior changes -- precleared or not -- that have been made since the Act's effective date . . . ," id. at 465 U. S. 255, n. 26."When a jurisdiction adopts legislation that makes clearly defined changes in its election practices, sending that legislation to the Attorney General merely with a general request for preclearance pursuant to Section 5 constitutes a submission of the changes made by the enactment, and cannot be deemed a submission of changes made by previous legislation which themselves were independently subject to Section 5 preclearance."Id. at 465 U. S. 256. Page 500 U. S. 657The three-judge District Court in the instant case reasoned as follows in ruling that submission and approval of the later electoral changes constituted submission and approval of the earlier changes:"[W]e find that there was express approval by the Attorney General for those judicial positions set forth in Part I of our October 22, 1990, order. The language of the various acts submitted to the Attorney General, as well as the letters submitted by the State of Louisiana seeking preclearance, support this conclusion. Thus, the change submitted to the Attorney General is not only the Amendment, but the entire act as passed by the legislature. When the Attorney General approves the new act, he not only approves the amended portion, but necessarily approves the older, reenacted part, which forms part of the new act. Thus, when an act provides for a certain number of judicial positions, approval of that act must include all of the judicial positions necessary to reach that number."751 F. Supp. at 592-593 (footnotes omitted). And in a footnote, the court explained that the submission of the later Acts covered the earlier Acts as well, because,"in most cases, the letter of submission clearly and expressly states that the number of judges in a particular district is being increased from one number to another."Id. at 592-593, n. 38. On this basis alone, the District Court distinguished McCain. 751 F. Supp. at 592-593, n. 38.The District Court's explanation for its holding replicates the precise factual and legal errors we identified in McCain. Its ruling that preclearance "not only approves the amended portion of the new act, but necessarily approves the older, reenacted part, which forms part of the new act" is inconsistent with McCain. McCain establishes a presumption that the Attorney General will review only the current changes in election practices effected by the submitted legislation, not prior unprecleared changes reenacted in the amended legislation. Page 500 U. S. 658 A submission's description of the change from one number of judges to another in a particular judicial district does not, by itself, constitute a submission to the Attorney General of the prior voting changes incorporated in the newly amended statute."A request for preclearance of certain identified changes in election practices which fails to identify other practices as new ones thus cannot be considered an adequate submission of the latter practices."465 U.S. at 465 U. S. 256-257. Of course, a State may include earlier unprecleared changes as a specific submission along with its preclearance request for contemporary legislation. But it must identify with specificity each change that it wishes the Attorney General to consider.The requirement that the State identify each change is necessary if the Attorney General is to perform his preclearance duties under § 5. The Attorney General has substantial responsibilities under § 5. The Attorney General represents to us that he reviews an average of 17,000 electoral changes each year, and that, within the 60-day preclearance period, he must for each change analyze demographics, voting patterns, and other local conditions to make the statutory judgment concerning the presence of a discriminatory purpose or effect. Brief for United States as Amicus Curiae 22, n. 18. Congress recognized that the Attorney General could not, in addition to these duties, also monitor and identify each voting change in each jurisdiction subject to § 5."[B]ecause of the acknowledged and anticipated inability of the Justice Department -- given limited resources -- to investigate independently all changes with respect to voting enacted by States and subdivisions covered by the Act,"465 U.S. at 465 U. S. 247, Congress required each jurisdiction subject to § 5, as a condition to implementation of a voting change subject to the Act, to identify, submit, and receive approval for all such changes. The District Court's holding upsets this ordering of responsibilities under § 5, for it would add to the Attorney General's already redoubtable obligations the additional duty Page 500 U. S. 659 to research each submission to ensure that all earlier unsubmitted changes had been brought to light. Such a rule would diminish covered jurisdictions' responsibilities for self-monitoring under § 5, and would create incentives for them to forgo the submission process altogether. We reaffirm McCain in rejecting this vision of § 5.In light of its legal errors, the District Court's finding that the Attorney General "expressly approved" the prior uncleared changes cannot stand. Neither the initial submission nor the Attorney General's ruling upon it can be deemed to include the earlier unprecleared seats. Louisiana's submissions of contemporary legislation to the Attorney General failed as a matter of law to put him on notice that the prior unsubmitted changes were included. None of the submissions informed the Attorney General that prior voting changes were uncleared and were being transmitted along with the new changes. In most instances, Louisiana submitted only the legislation containing the new voting change. The record contains five submission letters, but these communications do not give requisite notice. Two were mere cover letters that added nothing to the submitted legislation. The other three letters note changes in the number of judges in a District, but as we have explained, this alone does not constitute a submission of the prior uncleared changes. In light of these legal errors and the presumption that "any ambiguity in the scope of the preclearance request" must be construed against the submitting jurisdiction, id. at 465 U. S. 257, "we are left with the definite and firm conviction," id. at 465 U. S. 258, that the court erred in finding that the Attorney General gave express approval to the earlier changes.Appellants request that we set aside the elections held for these seats and remove the judges from office. This is not a proper matter for us to consider in the first instance."[A] local district court is in a better position than this Court to fashion relief, because the district court 'is more familiar with the nuances of the local situation' and has the opportunity to Page 500 U. S. 660 hear evidence."Hathorn v. Lovorn, 457 U.S. at 457 U. S. 270, quoting Perkins v. Matthews, 400 U.S. at 400 U. S. 397. In fashioning its decree granting relief, the district court should adopt a remedy that in all the circumstances of the case implements the mandate of § 5 in the most equitable and practicable manner and with least offense to its provisions.The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtClark v. Roemer, 500 U.S. 646 (1991)Clark v. RoemerNo. 90-952Argued April 22, 1991Decided June 3, 1991500 U.S. 646SyllabusSection 5 of the Voting Rights Act of 1965 requires covered jurisdictions to obtain either judicial preclearance from the United States District Court for the District of Columbia or administrative preclearance from the United States Attorney General before implementing new voting practices, in order to prevent changes that have a discriminatory purpose or effect. Appellants, black registered voters and a voting rights organization in Louisiana, filed suit in the District Court, challenging the validity of Louisiana's electoral scheme for certain judges under, inter alia, § 5. In response to their 1987 amended complaint alleging that a number of statutory and constitutional changes, many of which were adopted in the late 1960's and 1970's, had not been precleared under § 5, Louisiana submitted all of the unprecleared voting changes for administrative preclearance. In June, 1990, after the Attorney General had objected to preclearance for some changes, including the creation of several judgeships, Louisiana asked him to reconsider and proceeded with plans to hold fall elections for all of the seats. The District Court denied appellants' motion to enjoin the elections for the unprecleared seats, but enjoined the winners from taking office pending its further orders. In October, the court, noting that some of the judgeships to which the Attorney General now objected were in districts where the State had obtained administrative preclearance for later-created judgeships, ruled that the Attorney General had precleared the earlier judgeships when he precleared the later, or related, voting changes. The court also refused to enjoin elections for those judgeships that it found were subject to valid objections by the Attorney General and violated § 5, holding that the winners could take office, pending judicial preclearance.Held:1. The District Court erred by not enjoining elections for judgeships to which the Attorney General interposed valid objections. Section 5 requires preclearance. Without it, a voting change will not be effective as law, Connor v. Waller, 421 U. S. 656, and is unenforceable, Hathorn v. Lovorn, 457 U. S. 255, 457 U. S. 269. Moreover, § 5 plaintiffs are entitled to an injunction prohibiting a State from implementing changes that have not been precleared, Allen v. State Bd. of Elections, 393 U. S. 544, 393 U. S. 572. The court's reasons for refusing to enjoin the elections lack merit. Appellants displayed no lack of diligence in challenging the elections, and every participant in the process knew for over three years that the challenged seats were unprecleared. Nor was § 5's applicability to judges uncertain until 1990, since this Court issued a summary affirmance of a decision holding that § 5 applied to judges in 1986, Haith v. Martin, 618 F. Supp. 410, aff'd mem., 477 U.S. 901. The court's concern about the potential for voter confusion and low voter turnout in a special election for the unprecleared seats did not justify its position, since voters may be more confused and inclined to avoid the polls when an election is held in conceded violation of federal law. Moreover, the court's stated purpose to avoid possible challenges to civil and criminal judgments counsels in favor of enjoining the illegal elections, thus averting a federal challenge to state judgments. This Court's decisions dealing with the ex post question whether to set aside illegal elections, see, e.g., Perkins v. Matthews, 400 U. S. 379, are inapposite to the instant case, which addresses the ex ante question whether to allow illegal elections to be held at all. And it is not necessary to decide here whether there are instances in which a court may deny a motion for an injunction and allow an election to go forward. Pp. 500 U. S. 652-655.2. The State's failure to preclear certain earlier voting changes under § 5 was not cured by the Attorney General's preclearance of later, or related, voting changes. McCain v. Lybrand, 465 U. S. 236, made clear that the submission of legislation for administrative preclearance under § 5 defines the preclearance request's scope. Normally, a submission pertains only to identified changes in that legislation, and any ambiguity in the request's scope must be resolved against the submitting authority. A submission's description of the change from one number of judges to another in a particular judicial district does not, by itself, constitute a submission to the Attorney General of the prior voting changes incorporated in the newly amended statute. The requirement that a State identify each change is necessary for the Attorney General to perform his preclearance duties, since otherwise he would have to add to his redoubtable obligations the additional duty to research each submission to ensure that all earlier unsubmitted changes had been brought. Here, Louisiana's submissions of contemporary legislation to the Attorney General failed as a matter of law to put him on notice that the prior unsubmitted changes were included. Pp. 500 U. S. 655-659.3. Appellants' request that the elections held for the seats in question be set aside and the judges be removed is not a proper matter for this Court to consider in the first instance. Pp. 500 U. S. 659-660.751 F. Supp. 586 (M.D.La.1990), reversed and remanded. Page 500 U. S. 648KENNEDY, J., delivered the opinion for a unanimous Court.

1991_90-1629

A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed. 915 F.2d 1049 (1990). It upheld the reasoning of the lower courts and rejected a jurisdictional defense (raised for the first time on appeal) that sovereign immunity barred the judgment entered against the Government. We granted certiorari. 501 U. S. 1216 (1991).IISection 106 of the Bankruptcy Code provides:"(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose."(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate."(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity-"(1) a provision of this title that contains 'creditor,' 'entity,' or 'governmental unit' applies to governmental units; and"(2) a determination by the court of an issue arising under such a provision binds governmental units." 11 U. S. C. § 106.Three Terms ago we construed this provision in Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989). The issue there was whether § 106(c) authorizes a monetary recovery against a State. We held that it does not, though the Justices supporting that judgment failed to agree as to why. A plurality of the Court determined that § 106(c) does not permit a bankruptcy court to issue mone-33tary relief against a State. Id., at 102 (WHITE, J., joined by REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ.). That conclusion, the plurality said, was compelled by the language of § 106(c), the relationship between that subsection and the rest of the statute, and the requirement that congressional abrogation of the States' Eleventh Amendment immunity be clearly expressed. The concurrence found it unnecessary to construe the statute, concluding that Congress lacks authority under the Bankruptcy Clause to abrogate the States' immunity from money-damages actions. Id., at 105 (SCALIA, J., concurring in judgment). Like the Court of Appeals here, a dissent determined that the language of § 106(c), particularly that of paragraph (c)(l), supplies the necessary waiver. Id., at 106 (Marshall, J., joined by Brennan, BLACKMUN, and STEVENS, JJ.).Contrary to the Government's suggestion, Hoffman does not control today's decision. It is true, to be sure, that Congress made clear in § 106 that (insofar as is within Congress' power) state and federal sovereigns are to be treated the same for immunity purposes. See 11 U. S. C. § 101(27) (1982 ed., Supp. II) (" 'governmental unit' means United States [and] State"). Since, however, the Court in Hoffman was evenly divided over what that treatment was as to the States; and since the deciding vote of the concurrence, denying amenability to suit, rested upon a ground (the Eleventh Amendment) applicable only to the States and not to the Federal Government, see Federal Housing Authority v. Burr, 309 U. S. 242, 244 (1940); the holding in Hoffman has no binding force here. The separate opinions dealing with the statutory question are relevant, however, and we shall in fact rely on the reasoning of the plurality.IIIWaivers of the Government's sovereign immunity, to be effective, must be "'unequivocally expressed.'" Irwin v.34Department of Veterans Affairs, 498 U. S. 89, 95 (1990) (quoting United States v. Mitchell, 445 U. S. 535, 538 (1980), and United States v. King, 395 U. S. 1, 4 (1969)). Contrary to respondent's suggestion, moreover, they are not generally to be "liberally construed." We have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress' clear intent, as in the context of the "sweeping language" of the Federal Tort Claims Act, United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951), see, e. g., id., at 554-555, Block v. Neal, 460 U. S. 289, 298 (1983), United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 383 (1949), or as in the context of equally broad "sue and be sued" clauses, see, e. g., Franchise Tax Bd. of California v. United States Postal Service, 467 U. S. 512, 517-519 (1984), FHA v. Burr, supra, at 245. These cases do not, however, eradicate the traditional principle that the Government's consent to be sued "must be 'construed strictly in favor of the sovereign,' McMahon v. United States, 342 U. S. 25, 27 (1951), and not 'enlarge[d] ... beyond what the language requires,'" Ruckelshaus v. Sierra Club, 463 U. S. 680, 685 (1983) (quoting Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927)), a rule of construction that we have had occasion to reaffirm once already this Term, see Ardestani v. INS, 502 U. S. 129, 137 (1991).Subsections (a) and (b) of § 106 meet this "unequivocal expression" requirement with respect to monetary liability. Addressing "claim[s]," which the Code defines as "right[s] to payment," § 101(4)(A), they plainly waive sovereign immunity with regard to monetary relief in two settings: compulsory counterclaims to governmental claims, § 106(a); and permissive counterclaims to governmental claims capped by a setoff limitation, § 106(b). Next to these models of clarity stands subsection (c). Though it, too, waives sovereign immunity, it fails to establish unambiguously that the waiver extends to monetary claims. I t is susceptible of at least two interpretations that do not authorize monetary relief.35Under one interpretation, § 106(c) permits the bankruptcy court to issue "declaratory and injunctive"-though not monetary-relief against the Government. Hoffman, 492 U. S., at 102. This conclusion is reached by reading the two paragraphs of subsection (c) as complementary rather than independent: The first paragraph identifies the subject matter of disputes that courts may entertain under the subsection and the second paragraph describes the relief that courts may grant in such disputes. That is to say, the second paragraph specifies the manner in which there shall be applied to governmental units the provisions identified by the first paragraph, i. e., a manner that permits declaratory or injunctive relief but not an affirmative monetary recovery.Several factors favor this construction. The distinction it establishes-between suits for monetary claims and suits for other relief-is a familiar one, and is suggested by the contrasting language used in subsections (a) and (b) ("claim[s]") and in subsection (c) ("determination[s]" of "issue[s]"), Hoffman, 492 U. S., at 102. It also avoids eclipsing the carefully drawn limitations placed on the waivers in subsections (a) and (b). The principal provision of the Code permitting the assertion of claims against persons other than the estate itself is § 542(b), which provides that "an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee." If the first paragraph of § 106(c) means that, by reason of use of the trigger word "entity," this provision applies in all respects to governmental units, then the Government may be sued on all alleged debts, despite the prior specification in subsections (a) and (b) that claims against the Government will lie only when the Government has filed a proof of claim, and even then only as a setoff unless the claim is a compulsory counterclaim. Those earlier limitations are reduced to trivial application if paragraph (c)(l) stands on its own. See id., at 101-102. This construction also attaches practical consequences to para-36graph (c)(2), whereas respondent's interpretation violates the settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect. See id., at 103; United States v. Menasche, 348 U. S. 528, 538-539 (1955). Respondent has suggested no function to be performed by paragraph (2) if paragraph (1) operates to treat the Government like any other "entity" or "creditor," regardless of the type of relief authorized by an applicable Code provision.Under this interpretation, § 106(c), though not authorizing claims for monetary relief, would nevertheless perform a significant function. It would permit a bankruptcy court to determine the amount and discharge ability of an estate's liability to the Government, such as unpaid federal taxes, see 11 U. S. C. § 505(a)(1) (permitting the court to "determine the amount or legality of any tax") (emphasis added), whether or not the Government filed a proof of claim. See 492 U. S., at 102-103. Cf. Neavear v. Schweiker, 674 F.2d 1201, 12031204 (CA7 1982) (holding that under § 106(c) a bankruptcy court could discharge a debt owed to the Social Security Administration). The Government had repeatedly objected, on grounds of sovereign immunity, to being bound by such determinations before § 106(c) was enacted in 1978. See, e. g., McKenzie v. United States, 536 F.2d 726, 728-729 (CA7 1976); Bostwick v. United States, 521 F.2d 741, 742-744 (CA8 1975); Gwilliam v. United States, 519 F.2d 407, 410 (CA9 1975); In re Durensky, 377 F. Supp. 798, 799-800 (ND Tex. 1974), appeal dism'd, 519 F.2d 1024 (CA5 1975).Subsection (c) is also susceptible of another construction that would not permit recovery here. If the two paragraphs of § 106(c) are read as being independent, rather than the second as limiting the first, then, pursuant to the first paragraph, Code provisions using the triggering words enumerated in paragraph (c)(l) would apply fully to governmental units. But that application of those provisions would be limited by the requirements of subsections (a) and (b), in accord-37ance with the phrase that introduces subsection (c) ("Except as provided in subsections (a) and (b) of this section"). This exception, in other words, could be read to mean that the rules established in subsections (a) and (b) for waiver of Government "claim[sJ" that are "property of the estate" are exclusive, and preclude any resort to subsection (c) for that purpose. That reading would bar the present suit, since the right to recover a postpetition transfer under § 550 is clearly a "claim" (defined in § 101(4)(A)) and is "property of the estate" (defined in § 541(a)(3)). (The dissent appears to read paragraphs (c)(l) and (c)(2) as being independent but provides no explanation of what the textual exception could mean under that reading.)The foregoing are assuredly not the only readings of subsection (c), but they are plausible ones-which is enough to establish that a reading imposing monetary liability on the Government is not "unambiguous" and therefore should not be adopted. Contrary to respondent's suggestion, legislative history has no bearing on the ambiguity point. As in the Eleventh Amendment context, see Hoffman, supra, at 104, the "unequivocal expression" of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report. Cf. Dellmuth v. Muth, 491 U. S. 223, 228-229 (1989).IVRespondent proposes several alternative grounds for affirming the judgment below, all unpersuasive. First, it claims that the necessary waiver can be found in 28 U. S. C. § 1334(d), which grants the district court in which a bankruptcy case is initiated "exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate." Respondent urges us to construe this language as empowering a bankruptcy court to compel the United States or a State to return any property, including money, that passes into the38estate upon commencement of the bankruptcy proceeding. Under this theory, a sovereign's exposure to suit would not be governed by the specific language of § 106, but would be concealed in the broad jurisdictional grant of § 1334(d). Besides being unprecedented and running afoul of the unequivocal-expression requirement, this theory closely resembles an argument we rejected just last Term. In Blatchford v. Native Village of Noatak, 501 U. S. 775, 786 (1991), the argument was made that Alaska's Eleventh Amendment immunity to suit was abrogated by 28 U. S. C. § 1362, a jurisdictional grant, akin to § 1334(d), that gives district courts jurisdiction over "all civil actions, brought by any Indian tribe ... aris[ing] under the Constitution, laws, or treaties of the United States." Rejecting that contention, we observed: "The fact that Congress grants jurisdiction to hear a claim does not suffice to show Congress has abrogated all defenses to that claim. The issues are wholly distinct." Id., at 787, n. 4.Equally unpersuasive is respondent's related argument that a bankruptcy court's in rem jurisdiction overrides sovereign immunity. As an initial matter, the premise for that argument is missing here, since respondent did not invoke, and the Bankruptcy Court did not purport to exercise, in rem jurisdiction. Respondent sought to recover a sum of money, not "particular dollars," cf. Begier v. IRS, 496 U. S. 53, 62 (1990) (emphasis deleted), so there was no res to which the court's in rem jurisdiction could have attached, see Pennsylvania Turnpike Comm'n v. McGinnes, 268 F.2d 65, 66-67 (CA3), cert. denied, 361 U. S. 829 (1959). In any event, we have never applied an in rem exception to the sovereignimmunity bar against monetary recovery, and have suggested that no such exception exists, see United States v. Shaw, 309 U. S. 495,502-503 (1940). Nor does United States v. Whiting Pools, Inc., 462 U. S. 198 (1983), establish such an exception, or otherwise permit the relief requested here. That case upheld a Bankruptcy Court order that the IRS39turn over tangible property of the debtor it had seized before the debtor filed for bankruptcy protection. A suit for payment of funds from the Treasury is quite different from a suit for the return of tangible property in which the debtor retained ownership. The Court's opinion in Whiting Pools contains no discussion of § 106(c), and nothing in it suggests that an order granting monetary recovery from the United States would be proper.Resort to the principles of trust law is also of no help to respondent. Most of the trust decisions respondent cites are irrelevant, since they involve private entities, not the Government. The one that does involve the Government, Bull v. United States, 295 U. S. 247 (1935), concerns equitable recoupment, a doctrine that has been substantially narrowed by later cases, see United States v. Dalm, 494 U. S. 596, 608 (1990), and has no application here.***Neither § 106(c) nor any other provision of law establishes an unequivocal textual waiver of the Government's immunity from a bankruptcy trustee's claims for monetary relief. Since Congress has not empowered a bankruptcy court to order a recovery of money from the United States, the judgment of the Court of Appeals must be reversed.It is so ordered

OCTOBER TERM, 1991SyllabusUNITED STATES v. NORDIC VILLAGE, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 90-1629. Argued December 9, 1991-Decided February 25,1992After respondent Nordic Village, Inc., filed a petition for relief under Chapter 11 of the Bankruptcy Code, one of its officers withdrew funds from the company's corporate account. He sent part of the money to the Internal Revenue Service (IRS), directing it to apply the funds against his individual tax liability, which it did. In a subsequent adversary proceeding, the Bankruptcy Court permitted Nordic Village's trustee to recover the transfer and entered a monetary judgment against the IRS. The District Court affirmed, as did the Court of Appeals, which rejected a jurisdictional defense that sovereign immunity barred the judgment.Held:1. Section 106(c) of the Code does not waive the United States' sovereign immunity from an action seeking monetary recovery in bankruptcy. Pp. 32-37.(a) Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96, does not control this case, since the plurality and the dissent therein were evenly divided over the issue whether § 106(c) authorizes a monetary recovery against a State, and since the deciding vote of the concurrence, denying amenability to suit, rested upon the Eleventh Amendment, which is applicable only to the States. However, the plurality's reasoning is relevant and is relied on here. pp. 32-33.(b) Section 106(c) does not "unequivocally express" a waiver of the Government's immunity from actions for monetary relief, as is necessary for such a waiver to be effective. See, e. g., Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95. In contrast to §§ 106(a) and (b), which plainly waive immunity with regard to monetary relief as to specified claims, § 106(c) is susceptible of at least two plausible interpretations that do not authorize monetary relief. Legislative history has no bearing on this point, for the "unequivocal expression" of waiver must be an expression in statutory text. Hoffman, supra, at 104. Pp. 33-37.2. Respondent's several alternative grounds for affirming the judgment below-that 28 U. S. C. § 1334(d)'s broad jurisdictional grant provides the necessary waiver, that a bankruptcy court's in rem jurisdiction overrides sovereign immunity, and that a waiver of sovereign immunity is supported by trust law principles-are unpersuasive. Pp. 37-39.915 F.2d 1049, reversed.31SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 39.Richard H. Seamon argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Roberts, Gary D. Gray, and John A. Dudeck, Jr.Marvin A. Sicherman argued the cause and filed a brief for respondent. With him on the brief was Michael D. Zaverton.JUSTICE SCALIA delivered the opinion of the Court.This case presents a narrow question: Does § 106(c) of the Bankruptcy Code waive the sovereign immunity of the United States from an action seeking monetary recovery in bankruptcy?IRespondent Nordic Village, Inc., filed a petition for relief under Chapter 11 of the Bankruptcy Code in March 1984. About four months later, Josef Lah, an officer and shareholder of Nordic Village, drew a $26,000 check on the company's corporate account, $20,000 of which was used to obtain a cashier's check in that amount payable to the Internal Revenue Service (IRS). Lah delivered this check to the IRS and directed it to apply the funds against his individual tax liability, which it did.In December 1984, the trustee appointed for Nordic Village commenced an adversary proceeding in the Bankruptcy Court for the Northern District of Ohio, seeking to recover, among other transfers, the $20,000 paid by Lah to the IRS. The Bankruptcy Court permitted the recovery. The unauthorized, postpetition transfer, the court determined, could be avoided under § 549(a) and recovered from the IRS under § 550(a) of the Bankruptcy Code. It entered a judgment against the IRS in the amount of $20,000, which the District Court affirmed.32Full Text of Opinion

1972_71-1192

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to review petitioners' conviction under a California statute making it a criminal offense to "pirate" recordings produced by others.In 1971, an information was filed by the State of California, charging petitioners in 140 counts with violating § 653h of the California Penal Code. The information charged that, between April, 1970, and March, 1971, petitioners had copied several musical performances from commercially sold recordings without the permission of the owner of the master record or tape. [Footnote 1] Petitioners moved to dismiss the complaint on the grounds that § 653h was in conflict with Art. I, § 8, cl. 8, of the Constitution, [Footnote 2] Page 412 U. S. 549 the "Copyright Clause," and the federal statutes enacted thereunder. Upon denial of their motion, petitioners entered pleas of nolo contendere to 10 of the 140 counts; the remaining counts were dismissed. On appeal, the Appellate Department of the California Superior Court sustained the validity of the statute. After exhausting other state appellate remedies, petitioners sought review in this Court.IPetitioners were engaged in what has commonly been called "record piracy" or "tape piracy" -- the unauthorized duplication of recordings of performances by major musical artists. [Footnote 3] Petitioners would purchase from a retail distributor a single tape or phonograph recording of the popular performances they wished to duplicate. The original recordings were produced and marketed by recording companies with which petitioners had no contractual relationship. At petitioners' plant, the recording was reproduced on blank tapes, which could in turn be used to replay the music on a tape player. The tape was then wound on a cartridge. A label was attached, stating the title of the recorded performance -- the same title as had appeared on the original recording, and the name of the performing artists. [Footnote 4] After final packaging, Page 412 U. S. 550 the tapes were distributed to retail outlets for sale to the public, in competition with those petitioners had copied.Petitioners made no payments to the artists whose performances they reproduced and sold, or to the various trust funds established for their benefit; no payments were made to the producer, technicians, or other staff personnel responsible for producing the original recording and paying the large expenses incurred in production. [Footnote 5] No payments were made for the use of the artists' names or the album title.The challenged California statute forbids petitioners to transfer any performance fixed on a tape or record onto other records or tapes with the intention of selling the duplicates unless they have first received permission from those who, under state law, are the owners of the master recording. Although the protection afforded to each master recording is substantial, lasting for an unlimited time, the scope of the proscribed activities is narrow. No limitation is placed on the use of the music, lyrics, or arrangement employed in making the master recording. Petitioners are not precluded from hiring their own musicians and artists and recording an exact imitation of the performance embodied on the master recording. Petitioners are even free to hire the same artists who made the initial recording in order to Page 412 U. S. 551 duplicate the performance. In essence, the statute thus provides copyright protection solely for the specific expressions which compose the master record or tape.Petitioners' attack on the constitutionality of § 653h has many facets. First, they contend that the statute establishes a state copyright of unlimited duration, and thus conflicts with Art. I, § 8, cl. 8, of the Constitution. Second, petitioners claim that the state statute interferes with the implementation of federal policies inherent in the federal copyright statutes. 17 U.S.C. § 1 et seq. According to petitioners, it was the intention of Congress, as interpreted by this Court in Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964), to establish a uniform law throughout the United States to protect original writings. As part of the federal scheme, it is urged that Congress intended to allow individuals to copy any work which was not protected by a federal copyright. Since § 653h effectively prohibits the copying of works which are not entitled to federal protection, petitioners contend that it conflicts directly with congressional policy, and must fall under the Supremacy Clause of the Constitution. Finally, petitioners argue that 17 U.S.C. § 2, which allows States to protect unpublished writings, [Footnote 6] does not authorize the challenged state provision; since the records which petitioners copied had previously been released to the public, petitioners contend that they had, under federal law, been published.We note at the outset that the federal copyright statutes to which petitioners refer were amended by Congress Page 412 U. S. 552 while their case was pending in the state courts. In 1971, Pub.L. 92-140, 85 Stat. 391, 17 U.S.C. §§ 1(f), 5 (n), 19, 20, 26, 101(e), was passed to allow federal copyright protection of recordings. However, § 3 of the amendment specifically provides that such protection is to be available only to sound recordings "fixed, published, and copyrighted" on and after February 15, 1972, and before January 1, 1975, and that nothing in Title 17, as amended is to "be applied retroactively or [to] be construed as affecting in any way any rights with respect to sound recordings fixed before" February 15, 1972. The recordings which petitioners copied were all "fixed" prior to February 15, 1972. Since, according to the language of § 3 of the amendment, Congress did not intend to alter the legal relationships which govern these recordings, the amendments have no application in petitioners' case. [Footnote 7]IIPetitioners' first argument rests on the premise that the state statute under which they were convicted lies beyond the powers which the States reserved in our federal system. If this is correct, petitioners must prevail, since the States cannot exercise a sovereign power which, under the Constitution, they have relinquished to the Federal Government for its exclusive exercise.AThe principles which the Court has followed in construing state power were stated by Alexander Hamilton in Number 32 of The Federalist:"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent Page 412 U. S. 553 on the general will. But as the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant. [Footnote 8]"The first two instances mentioned present no barrier to a State's enactment of copyright statutes. The clause of the Constitution granting to Congress the power to issue copyrights does not provide that such power shall vest exclusively in the Federal Government. Nor does the Constitution expressly provide that such power shall not be exercised by the States.In applying the third phase of the test, we must examine the manner in which the power to grant copyrights may operate in our federal system. The objectives of our inquiry were recognized in Cooley v. Board of Wardens, 12 How. 299 (1852), when, in determining whether the power granted to Congress to regulate commerce [Footnote 9] was "compatible with the existence of a similar power in the States," the Court noted:"Whatever subjects of this power are in their nature Page 412 U. S. 554 national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress."Id. at 53 U. S. 319. The Court's determination that Congress alone may legislate over matters which are necessarily national in import reflects the basic principle of federalism. Mr. Chief Justice Marshall said,"The genius and character of the [federal] government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government."Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 195 (1824).The question whether exclusive federal power must be inferred is not a simple one, for the powers recognized in the Constitution are broad, and the nature of their application varied. The warning sounded by the Court in Cooley may equally be applicable to the Copyright Clause:"Either absolutely to affirm, or deny that the nature of [the federal power over commerce] requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power and to assert concerning all of them what is really applicable but to a part."12 How. at 53 U. S. 319. We must also be careful to distinguish those situations in which the concurrent exercise of a power by the Federal Government and the States or by the States alone may possibly lead to conflicts and those situations where conflicts will necessarily arise."It is not . . . a Page 412 U. S. 555 mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a preexisting right of [state] sovereignty."The Federalist No. 32, p. 243 (B. Wright ed.1961).Article I, § 8, cl. 8, of the Constitution gives to Congress the power --"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ."The clause thus describes both the objective which Congress may seek and the means to achieve it. The objective is to promote the progress of science and the arts. As employed, the terms "to promote" are synonymous with the words "to stimulate," "to encourage," or "to induce." [Footnote 10] To accomplish its purpose, Congress may grant to authors the exclusive right to the fruits of their respective works. An author who possesses an unlimited copyright may preclude others from copying his creation for commercial purposes without permission. In other words, to encourage people to devote themselves to intellectual and artistic creation, Congress may guarantee to authors and inventors a reward in the form of control over the sale or commercial use of copies of their works.The objective of the Copyright Clause was clearly to facilitate the granting of rights national in scope. While the debates on the clause at the Constitutional Convention were extremely limited, its purpose was described by James Madison in the Federalist:"The utility of this power will scarcely be questioned. The copyright of authors has been solemnly Page 412 U. S. 556 adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. [Footnote 11]"The difficulty noted by Madison relates to the burden placed on an author or inventor who wishes to achieve protection in all States when no federal system of protection is available. To do so, a separate application is required to each state government; the right which, in turn, may be granted has effect only within the granting State's borders. [Footnote 12] The national system which Madison supported eliminates the need for multiple applications and the expense and difficulty involved. In effect, it allows Congress to provide a reward greater in scope than any particular State may grant to promote progress in those fields which Congress determines are worthy of national action.Although the Copyright Clause thus recognizes the potential benefits of a national system, it does not indicate Page 412 U. S. 557 that all writings are of national interest or that state legislation is, in all cases, unnecessary or precluded. The patents granted by the States in the 18th century show, to the contrary, a willingness on the part of the States to promote those portions of science and the arts which were of local importance. [Footnote 13] Whatever the diversity of people's backgrounds, origins, and interests, and whatever the variety of business and industry in the 13 Colonies, the range of diversity is obviously far greater today in a country of 210 million people in 50 States. In view of that enormous diversity, it is unlikely that all citizens in all parts of the country place the same importance on Page 412 U. S. 558 works relating to all subjects. Since the subject matter to which the Copyright Clause is addressed may thus be of purely local importance, and not worthy of national attention or protection, we cannot discern such an unyielding national interest as to require an inference that state power to grant copyrights has been relinquished to exclusive federal control.The question to which we next turn is whether, in actual operation, the exercise of the power to grant copyrights by some States will prejudice the interests of other States. As we have noted, a copyright granted by a particular State has effect only within its boundaries. If one State grants such protection, the interests of States which do not are not prejudiced, since their citizens remain free to copy within their borders those works which may be protected elsewhere. The interests of a State which grants copyright protection may, however, be adversely affected by other States that do not; individuals who wish to purchase a copy of a work protected in their own State will be able to buy unauthorized copies in other States where no protection exists. However, this conflict is neither so inevitable nor so severe as to compel the conclusion, that state power has been relinquished to the exclusive jurisdiction of the Congress. Obviously when some States do not grant copyright protection -- and most do not -- that circumstance reduces the economic value of a state copyright, but it will hardly render the copyright worthless. The situation is no different from that which may arise in regard to other state monopolies such as a state lottery, or a food concession in a limited enclosure like a state park; in each case, citizens may escape the effect of one State's monopoly by making purchases in another area or another State. Similarly, in the case of state copyrights, except as to individuals willing to travel across state lines in order to purchase records or other writings protected in their own State, each State's Page 412 U. S. 559 copyrights will still serve to induce new artistic creations within that State -- the very objective of the grant of protection. We do not see here the type of prejudicial conflicts which would arise, for example, if each State exercised a sovereign power to impose imposts and tariffs; [Footnote 14] nor can we discern a need for uniformity such as that which may apply to the regulation of interstate shipments. [Footnote 15]Similarly, it is difficult to see how the concurrent exercise of the power to grant copyrights by Congress and the States will necessarily and inevitably lead to difficulty. At any time Congress determines that a particular category of "writing" is worthy of national protection and the incidental expenses of federal administration, federal copyright protection may be authorized. Where the need for free and unrestricted distribution of a writing is thought to be required by the national interest, the Copyright Clause and the Commerce Clause would allow Congress to eschew all protection. In such cases, a conflict would develop if a State attempted to protect that which Congress intended to be free from restraint or to free that which Congress had protected. However, where Congress determines that neither federal protection nor freedom from restraint is required by the national interest, it is at liberty to stay its hand entirely. [Footnote 16] Since state protection would not then conflict with federal action, total relinquishment of the States' power to grant copyright protection cannot be inferred. Page 412 U. S. 560As we have seen, the language of the Constitution neither explicitly precludes the States from granting copyrights nor grants such authority exclusively to the Federal Government. The subject matter to which the Copyright Clause is addressed may, at times, be of purely local concern. No conflict will necessarily arise from a lack of uniform state regulation, nor will the interest of one State be significantly prejudiced by the actions of another. No reason exists why Congress must take affirmative action either to authorize protection of all categories of writings or to free them from all restraint. We therefore conclude that, under the Constitution, the States have not relinquished all power to grant to authors "the exclusive Right to their respective Writings."BPetitioners base an additional argument on the language of the Constitution. The California statute forbids individuals to appropriate recordings at any time after release. From this, petitioners argue that the State has created a copyright of unlimited duration, in violation of that portion of Art. I, § 8, cl. 8, which provides that copyrights may only be granted "for limited Times." Read literally, the text of Art. I does not support petitioners' position. Section 8 enumerates those powers which have been granted to Congress; whatever limitations have been appended to such powers can only be understood as a limit on congressional, and not state, action. Moreover, it is not clear that the dangers to which this limitation was addressed apply with equal force to both the Federal Government and the States. When Congress grants an exclusive right or monopoly, its effects are pervasive; no citizen or State may escape its reach. As we have noted, however, the exclusive right granted by a State is confined to its Page 412 U. S. 561 borders. Consequently, even when the right is unlimited in duration, any tendency to inhibit further progress in science or the arts is narrowly circumscribed. The challenged statute cannot be voided for lack of a durational limitation.IIIOur conclusion that California did not surrender its power to issue copyrights does not end the inquiry. We must proceed to determine whether the challenged state statute is void under the Supremacy Clause. No simple formula can capture the complexities of this determination; the conflicts which may develop between state and federal action are as varied as the fields to which congressional action may apply."Our primary function is to determine whether, under the circumstances of this particular case, [the state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). We turn, then, to federal copyright law to determine what objectives Congress intended to fulfill.By Art. I, § 8, cl. 8, of the Constitution, the States granted to Congress the power to protect the "Writings" of "Authors." These terms have not been construed in their narrow literal sense, but rather with the reach necessary to reflect the broad scope of constitutional principles. While an "author" may be viewed as an individual who writes an original composition, the term, in its constitutional sense, has been construed to mean an "originator," "he to whom anything owes its origin." Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 111 U. S. 58 (1884). Similarly, although the word "writings" might be limited to script or printed material, it may be interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. Page 412 U. S. 562 Ibid.; Trade-Mark Cases, 100 U. S. 82, 100 U. S. 94 (1879). Thus, recordings of artistic performances may be within the reach of Clause 8.While the area in which Congress may act is broad, the enabling provision of Clause 8 does not require that Congress act in regard to all categories of materials which meet the constitutional definitions. Rather, whether any specific category of "Writings" is to be brought within the purview of the federal statutory scheme is left to the discretion of the Congress. The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent not only on the character of the writing, but also on the commercial importance of the product to the national economy. As our technology has expanded the means available for creative activity and has provided economical means for reproducing manifestations of such activity, new areas of federal protection have been initiated. [Footnote 17] Page 412 U. S. 563Petitioners contend that the actions taken by Congress in establishing federal copyright protection preclude the States from granting similar protection to recordings of musical performances. According to petitioners, Congress addressed the question of whether recordings of performances should be granted protection in 1909; Congress determined that any individual who was entitled to a copyright on an original musical composition should have the right to control to a limited extent the use of that composition on recordings, but that the record itself, and the performance which it was capable of reproducing, were not worthy of such protection. [Footnote 18] In Page 412 U. S. 564 support of their claim, petitioners cite the House Report on the 1909 Act, which states:"It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices."H.R.Rep. No. 2222, 60th Cong., 2d Sess., 9 (1909).To interpret accurately Congress' intended purpose in passing the 1909 Act and the meaning of the House Report petitioners cite, we must remember that our modern technology differs greatly from that which existed in 1909. The Act and the report should not be read as if they were written today, for to do so would inevitably distort their intended meaning; rather, we must read them against the background of 1909, in which they were written.In 1831, Congress first extended federal copyright protection to original musical compositions. An individual who possessed such a copyright had the exclusive authority to sell copies of the musical score; individuals who purchased such a copy did so, for the most part, to play the composition at home on a piano or other instrument. Between 1831 and 1909, numerous machines were invented which allowed the composition to be reproduced mechanically. For example, one had only to insert a piano roll or disc with perforations in appropriate places into a player piano to achieve almost the same results which previously required someone capable of playing the instrument. The mounting sales of such devices detracted from the value of the copyright granted for the musical composition. Individuals who had use of a piano roll and an appropriate instrument had little, if any, need for a copy of the sheet Page 412 U. S. 565 music. [Footnote 19] The problems which arose eventually reached this Court in 1908 in the case of White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1. There, the Apollo Company had manufactured piano rolls capable of reproducing mechanically compositions covered by a copyright owned by appellant. Appellant contended that the piano rolls constituted "copies" of the copyrighted composition, and that their sale, without permission, constituted an infringement of the copyright. The Court held that piano rolls, as well as records, were not "copies" of the copyrighted composition, in terms of the federal copyright statutes, but were merely component parts of a machine which executed the composition. [Footnote 20] Despite the fact that the piano rolls employed the creative work of the composer, all protection was denied.It is against this background that Congress passed the 1909 statute. After pointedly waiting for the Court's decision in White-Smith Music Publishing Co., [Footnote 21] Congress determined that the copyright statutes should be amended to insure that composers of original musical works received adequate protection to encourage further artistic and creative effort. Henceforth, under § 1(e), Page 412 U. S. 566 records and piano rolls were to be considered as "copies" of the original composition they were capable of reproducing, and could not be manufactured unless payment was made to the proprietor of the composition copyright. The section of the House Report cited by petitioners was intended only to establish the limits of the composer's right; composers were to have no control over the recordings themselves. Nowhere does the report indicate that Congress considered records as anything but a component part of a machine, capable of reproducing an original composition [Footnote 22] or that Congress intended records, as renderings of original artistic performance, to be free from state control. [Footnote 23] Page 412 U. S. 567Petitioners' argument does not rest entirely on the belief that Congress intended specifically to exempt recordings of performances from state control. Assuming that no such intention may be found, they argue that Congress so occupied the field of copyright protection as to preempt all comparable state action. Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947). This assertion is based on the language of 17 U.S.C. §§ 4 and 5, and on this Court's opinions in Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U. S. 234 (1964).Section 4 of the federal copyright laws provides:"The works for which copyright may be secured under this title shall include all the writings of an author."17 U.S.C. § 4.Section 5, which lists specific categories of protected works, adds:"The above specifications shall not be held to limit the subject matter of copyright as defined in section 4 of this title. . . ."17 U.S.C. § 5. Since § 4 employs the constitutional term "writings," [Footnote 24] it may be argued that Congress intended to exercise its authority over all works to which the constitutional provision might apply. However, in the more than 60 years which have elapsed since enactment of this provision, neither the Copyright Office, the courts, nor the Congress has so interpreted it. The Register of Copyrights, Page 412 U. S. 568 who is charged with administration of the statute, has consistently ruled that "claims to exclusive rights in mechanical recordings . . . or in the performances they reproduce" are not entitled to protection under § 4. 37 CFR § 202.8(b) (1972). [Footnote 25] With one early exception, [Footnote 26] American courts have agreed with this interpretation; [Footnote 27] and, in 1971, prior to passage of the statute which extended federal protection to recordings fixed on or after February 15, 1972, Congress acknowledged the validity of that interpretation. Both the House and Senate Reports on the proposed legislation recognized that recordings qualified as "writings" within the meaning of the Constitution, but had not previously been protected under the federal copyright statute. H.R.Rep. No. 92-487, pp. 2, 5 (1971); S.Rep. No. 92-72, p. 4 (1971). In light of this consistent interpretation by the courts, the agency empowered to administer the copyright statutes, Page 412 U. S. 569 and Congress itself, we cannot agree that §§ 4 and 5 have the broad scope petitioners claim.Sears and Compco, on which petitioners rely, do not support their position. In those cases, the question was whether a State could, under principles of a state unfair competition law, preclude the copying of mechanical configurations which did not possess the qualities required for the granting of a federal design or mechanical patent. The Court stated:"[T]he patent system is one in which uniform federal standards are carefully used to promote invention while, at the same time, preserving free competition. Obviously a State could not, consistently with the Supremacy Clause of the Constitution, extend the life of a patent beyond its expiration date or give a patent on an article which lacked the level of invention required for federal patents. To do either would run counter to the policy of Congress of granting patents only to true inventions, and then only for a limited time. Just as a State cannot encroach upon the federal patent laws directly, it cannot, under some other law, such as that forbidding unfair competition, give protection of a kind that clashes with the objectives of the federal patent laws."Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. at 376 U. S. 230-231 (footnotes omitted).In regard to mechanical configurations, Congress had balanced the need to encourage innovation and originality of invention against the need to insure competition in the sale of identical or substantially identical products. The standards established for granting federal patent protection to machines thus indicated not only which articles in this particular category Congress wished to protect, but which configurations it wished to remain free. The application of state law in these cases to prevent Page 412 U. S. 570 the copying of articles which did not meet the requirements for federal protection disturbed the careful balance which Congress had drawn, and thereby necessarily gave way under the Supremacy Clause of the Constitution. No comparable conflict between state law and federal law arises in the case of recordings of musical performances. In regard to this category of "Writings," Congress has drawn no balance; rather, it has left the area unattended, and no reason exists why the State should not be free to act. [Footnote 28]IVMore than 50 years ago, Mr. Justice Brandeis observed in dissent in International News Service v. Associated Press:"The general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas -- become, after voluntary communication to others, free as the air to common use."248 U.S. 215, 248 U. S. 250 (1918).But there is no fixed, immutable line to tell us which "human productions" are private property and which are so general as to become "free as the air." In earlier times, a performing artist's work was largely restricted to the stage; once performed, it remained "recorded" only in the memory of those who had seen or heard it. Today, we can record that performance in precise detail Page 412 U. S. 571 and reproduce it again and again with utmost fidelity. The California statutory scheme evidences a legislative policy to prohibit "tape piracy" and "record piracy," conduct that may adversely affect the continued production of new recordings, a large industry in California. Accordingly, the State has, by statute, given to recordings the attributes of property. No restraint has been placed on the use of an idea or concept; rather, petitioners and other individuals remain free to record the same compositions in precisely the same manner and with the same personnel as appeared on the original recording.In sum, we have shown that § 653h does not conflict with the federal copyright statute enacted by Congress in 109. Similarly, no conflict exists between the federal copyright statute passed in 1971 and the present application of § 653h, since California charged petitioners only with copying recordings fixed prior to February 15, 1972. [Footnote 29] Finally, we have concluded that our decisions in Sears and Compco, which we reaffirm today, have no application in the present case, since Congress has indicated neither that it wishes to protect, nor to free from protection, recordings of musical performances fixed prior to February 15, 1972We conclude that the State of California has exercised a power which it retained under the Constitution, and that the challenged statute, as applied in this case, does not intrude into an area which Congress has, up to now, preempted. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of piracy such as those which occurred in the present case.Affirmed

U.S. Supreme CourtGoldstein v. California, 412 U.S. 546 (1973)Goldstein v. CaliforniaNo. 71-1192Argued December 13, 1972Decided June 18, 1973412 U.S. 546SyllabusPetitioners, convicted for committing acts of "record piracy" or "tape piracy" in 1970-1971, challenge the California statute proscribing such practices, as violative of the "Copyright Clause," Art. I, § 8, cl. 8, of the Constitution, and the federal statutes enacted thereunder. The state appellate court upheld the validity of the statute.Held:1. Article I, § 8, cl. 8, does not expressly or by inference vest all power to grant copyright protection exclusively in the Federal Government. Pp. 412 U. S. 552-561.(a) Although the objective of the Copyright Clause was to facilitate the granting of rights national in scope, it does not indicate that all "Writings" are of national interest or that protective state legislation is, in all cases, unnecessary or precluded. Pp. 412 U. S. 555-558.(b) No substantially prejudicial interstate conflicts result where some States grant copyright protection within their own jurisdictions, while other States do not. Pp. 412 U. S. 558-559.(c) Conflicts will not necessarily arise between state enactments and congressional policy when States grant copyright protection. P. 412 U. S. 559.(d) Unless Congress determines that the national interest requires federal protection or freedom from restraint as to a particular category of "Writings," state protection of that category is not precluded. P. 412 U. S. 559.(e) The durational limitation imposed by the Copyright Clause on Congress does not invalidate state laws, like the one here, that have no such limitation. Pp. 412 U. S. 560-561.2. The California statute does not violate the Supremacy Clause by conflicting with federal copyright law. Pp. 412 U. S. 561-570.(a) Congress did not, in passing the Copyright Act of 1909, determine that recordings, as original writings, were unworthy of all copyright protection. Pp. 412 U. S. 563-566.(b) Nor did Congress in 17 U.S.C. § 4, which provides that "the works for which copyrights may be secured under this Act shall include all writings of an author," or in § 5, preempt state control over all works to which the term "writings" might apply. Page 412 U. S. 547 Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225; Compco Corp. v. Day-Brite Lighting, 376 U. S. 234, distinguished. Pp. 412 U. S. 567-569.3. Although, in 1971, the federal copyright statutes were amended to allow federal protection of recordings, such statutory protection was not intended to alter the legal relationships governing recordings "fixed" prior to February 15, 1972. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, California remains free to proscribe acts of record or tape piracy such as those involved here. Pp. 412 U. S. 570-571.Affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., post, p. 412 U. S. 572, and MARSHALL, J., post, p. 412 U. S. 576, filed dissenting opinions, in which BRENNAN and BLACKMUN, JJ., joined. Page 412 U. S. 548

1986_85-1626

JUSTICE WHITE delivered the opinion of the Court.In 1973, individual employees [Footnote 1] of Lukens Steel Company (Lukens) brought this suit on behalf of themselves and others, asserting racial discrimination claims under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., [Footnote 2] and 42 U.S.C. Page 482 U. S. 659 § 1981 [Footnote 3] against their employer and their collective bargaining agents, the United Steelworkers of America and two of its local unions (Unions). [Footnote 4] After a bench trial, the District Court specified the periods for which Title VII claims could be litigated; it also reaffirmed a pretrial order that the Pennsylvania 6-year statute of limitations governing claims on contracts, replevin, and trespass [Footnote 5] applied to the § 1981 claims, and that claims with respect to the period after July 14, 1967, were accordingly not barred. On the merits, the District Court found that Lukens had discriminated in certain respects, but that, in others, plaintiffs had not made out a case. [Footnote 6] The District Court concluded that the Unions were also guilty of discriminatory practices, specifically in failing Page 482 U. S. 660 to challenge discriminatory discharges of probationary employees, failing and refusing to assert instances of racial discrimination as grievances, and in tolerating and tacitly encouraging racial harassment. 580 F. Supp. 1114 (ED Pa.1984). The District Court entered separate injunctive orders against Lukens and the Unions, reserving damages issues for further proceedings. Lukens and the Unions appealed, challenging the District Court's liability conclusions as well as its decision that the Pennsylvania 6-year statute of limitations, rather than the 2-year statute applicable to personal injuries, would measure the period of liability under § 1981.The Court of Appeals, differing with the District Court, held that the 2-year statute of limitations controlled, but affirmed the liability judgment against the Unions. 777 F.2d 113 (CA3 1985). [Footnote 7] The employees' petition for certiorari in No. 85-1626 challenged the Court of Appeals' choice of the § 1981 limitations period. The Unions' petition in No. 852010 claimed error in finding them liable under Title VII and § 1981. We granted both petitions, 479 U.S. 982 (1986). We address in Part I the limitations issue in No. 85-1626 and the Unions' liability in Part II.IIBecause § 1981, like §§ 1982 and 1983, does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations. Wilson v. Garcia, 471 U. S. 261, 482 U. S. 266-268 (1985); Runyon v. McCrary, 427 U. S. 160, 427 U. S. 180-182 (1976); Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 421 U. S. 462 (1975). In Wilson, the reach of which is at issue in this case, there were three Page 482 U. S. 661 holdings: for the purpose of characterizing a claim asserted under § 1983, federal law, rather than state law, is controlling; a single state statute of limitations should be selected to govern all § 1983 suits; and because claims under § 1983 are in essence claims for personal injury, the state statute applicable to such claims should be borrowed. Petitioners in No. 85-1626 (hereafter petitioners), agree with the Court of Appeals that the first two Wilson holdings apply in § 1981 cases, but insist that the third does not. Their submission is that § 1981 deals primarily with economic rights, more specifically the execution and enforcement of contracts, and that the appropriate limitations period to borrow is the one applicable to suits for interference with contractual rights, which in Pennsylvania was six years.The Court of Appeals properly rejected this submission. Section 1981 has a much broader focus than contractual rights. The section speaks not only of personal rights to contract, but personal rights to sue, to testify, and to equal rights under all laws for the security of persons and property; and all persons are to be subject to like punishments, taxes, and burdens of every kind. Section 1981 of the present Code was § 1977 of the Revised Statutes of 1874. Its heading was and is "Equal rights under the law," and is contained in a chapter entitled "Civil Rights." Insofar as it deals with contracts, it declares the personal right to make and enforce contracts, a right, as the section has been construed, that may not be interfered with on racial grounds. The provision asserts, in effect, that competence and capacity to contract shall not depend upon race. It is thus part of a federal law barring racial discrimination, which, as the Court of Appeals said, is a fundamental injury to the individual rights of a person. Wilson's characterization of § 1983 claims is thus equally appropriate here, particularly since § 1983 would reach state action that encroaches on the rights protected by § 1981. That § 1981 has far-reaching economic consequences does not change this conclusion, since such impact flows from Page 482 U. S. 662 guaranteeing the personal right to engage in economically significant activity free from racially discriminatory interference. The Court of Appeals was correct in selecting the Pennsylvania 2-year limitations period governing personal injury actions.We also agree with the Court of Appeals that the 2-year statute, adopted in compliance with Wilson, should be applied in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 453 U. S. 486, n. 16 (1981); Thorpe v. Housing Authority of Durham, 393 U. S. 268, 393 U. S. 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 5 U. S. 109 (1801). But Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), advises that nonretroactivity is appropriate in certain defined circumstances. There the Court held that a decision specifying the applicable state statute of limitations in another context should not be applied retroactively because the decision overruled clear Circuit precedent on which the complaining party was entitled to rely, because the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity, and because retroactive application would be inequitable. Petitioners argue that the same considerations are present here. We disagree.It is true, as petitioners point out, that the Court of Appeals decision in this case overruled prior Third Circuit cases, Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894 (1977); Davis v. United States Steel Supply, Div. of United States Steel Corp., 581 F.2d 335, 338, 341, n. 8 (1978), each of which had refused to apply the Pennsylvania 2-year personal injury statute of limitations to the § 1981 claims involved in those cases. But until Meyers was decided in 1977, there had been no authoritative specification of which statute of limitations applied to an employee's § 1981 claims, and hence no clear precedent on which petitioners Page 482 U. S. 663 could have relied when they filed their complaint in this case in 1973. In a later case, Al-Khazraji v. St. Francis College, 784 F.2d 505, 512-514 (1986), the Court of Appeals refused to apply retroactively the same 2-year statute in an employment discrimination § 1981 case because the case was filed when clear Circuit precedent specified a longer statute. Distinguishing its decision there from the case now before us, the Court of Appeals said:"In 1973, when the complaint was filed in the Goodman case, there was no established precedent in the Third Circuit to indicate the appropriate limitations period for Section 1981 claims."784 F.2d at 512. It was obviously for this reason that the Court of Appeals here said that its decision "should be given the customary retroactive effect." 777 F.2d at 120. The court cited its prior decision in Smith v. Pittsburgh, 764 F.2d 188 (1985), [Footnote 8] a post-Wilson case in which the Court of Appeals applied retroactively the 2-year statute in a § 1983 employment termination case because of the unsettled law in the Third and other Circuits.As for the remainder of the Chevron factors, applying the 2-year personal injury statute, which is wholly consistent with Wilson v. Garcia and with the general purposes of statutes of repose, will not frustrate any federal law or result in inequity to the workers who are charged with knowledge that it was an unsettled question as to how far back from the date of filing their complaint the damages period would Page 482 U. S. 664 reach. Accordingly, the Court of Appeals properly applied the 2-year statute of limitations to the present case. [Footnote 9]IIThis case was tried for 32 days in 1980. One-hundred fifty-seven witnesses testified and over 2,000 exhibits were introduced. On February 13, 1984, the District Court filed its findings and conclusions. In an introductory section discussing the relevant legal principles, the trial judge discussed, among other things, the nature of "disparate treatment" and "disparate impact" cases under Title VII, recognizing that, in the former, the plaintiff must prove not only disparate treatment but trace its cause to intentional racial discrimination, an unnecessary element in disparate impact cases. The District Court also emphasized that proof of discriminatory intent is crucial in § 1981 cases, and that such intent cannot be made out by showing only facially neutral conduct that burdens one race more than another.The District Court proceeded to find that the company had violated Title VII in several significant respects, including the discharge of employees during their probationary period, the toleration of racial harassment by employees, initial job assignments, promotions, and decisions on incentive pay. The court also found that, in these identical ways, the company had also violated § 1981, a finding the court could not have made without concluding that the company had intentionally discriminated on a racial basis in these respects.Similarly, the Unions were found to have discriminated on racial grounds in violation of both Title VII and § 1981 in certain ways: failing to challenge discriminatory discharges of probationary employees; failure and refusal to assert racial Page 482 U. S. 665 discrimination as a ground for grievances; and toleration and tacit encouragement of racial harassment.What the conduct of the Unions had been and whether they had treated blacks and whites differently were questions of historical fact that Federal Rule of Civil Procedure 52(a) enjoins appellate courts to accept unless clearly erroneous. So is the issue of whether the Unions intended to discriminate based on race. Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 574 (1985); Pullman-Standard v. Swint, 456 U. S. 273, 456 U. S. 287-288 (1982). The Court of Appeals did not set aside any of the District Court's findings of fact that are relevant to this case. That is the way the case comes to us, and both courts below having agreed on the facts, we are not inclined to examine the record for ourselves absent some extraordinary reason for undertaking this task. Nothing the Unions have submitted indicates that we should do so."A court of law, such as this Court is, rather than a court for correction of errors in factfinding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error."Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 336 U. S. 275 (1949). See also United States v. Ceccolini, 435 U. S. 268, 435 U. S. 273 (1978). Unless there are one or more errors of law inhering in the judgment below, as the Unions claim there are, we should affirm it.The Unions contend that the judgment against them rests on the erroneous legal premise that Title VII and § 1981 are violated if a union passively sits by and does not affirmatively oppose the employer's racially discriminatory employment practices. It is true that the District Court declared that mere union passivity in the face of employer discrimination renders the union liable under Title VII and, if racial animus is properly inferrable, under § 1981 as well. [Footnote 10] We need not Page 482 U. S. 666 discuss this rather abstract observation, for the court went on to say that the evidence proves "far more" than mere passivity. [Footnote 11] As found by the court, the facts were that, since 1965, the collective bargaining contract contained an express clause binding both the employer and the Unions not to discriminate on racial grounds; that the employer was discriminating against blacks in discharging probationary employees, which the Unions were aware of but refused to do anything about by way of filing proffered grievances or otherwise; that the Unions had ignored grievances based on instances of harassment which were indisputably racial in nature; and that the Unions had regularly refused to include assertions of racial discrimination in grievances that also asserted other contract violations. [Footnote 12]In affirming the District Court's findings against the Unions, the Court of Appeals also appeared to hold that the Page 482 U. S. 667 Unions had an affirmative duty to combat employer discrimination in the workplace. 777 F.2d at 126-127. But it, too, held that the case against the Unions was much stronger than one of mere acquiescence, in that the Unions deliberately chose not to assert claims of racial discrimination by the employer. It was the Court of Appeals' view that these intentional and knowing refusals discriminated against the victims, who were entitled to have their grievances heard.The Unions submit that the only basis for any liability in this case under Title VII is § 703(c)(3), which provides that a Union may not "cause or attempt to cause an employer to discriminate against an individual in violation of this section," 78 Stat. 256, 42 U.S.C. § 2000e-2(c)(3), and that nothing the District Court found and the Court of Appeals accepted justifies liability under this prohibition. We need not differ with the Unions on the reach of § 703(c)(3), for § 703(c)(1) makes it an unlawful practice for a Union to"exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin."78 Stat. 255, 42 U.S.C. § 2000-2(c)(1). (Emphasis added.) Both courts below found that the Unions had indeed discriminated on the basis of race by the way in which they represented the workers, and the Court of Appeals expressly held that "[t]he deliberate choice not to process grievances also violated § 703(c)(1) of Title VII." 777 F.2d at 127. The plain language of the statute supports this conclusion.The Court of Appeals is also faulted for stating that the Unions had violated their duty of fair representation, which the Unions assert has no relevance to this case. But we do not understand the Court of Appeals to have rested its affirmance on this ground, for as indicated above, it held that the Unions had violated § 703.The Unions insist that it was error to hold them liable for not including racial discrimination claims in grievances claiming other violations of the contract. The Unions followed Page 482 U. S. 668 this practice, it was urged, because these grievances could be resolved without making racial allegations and because the employer would "get its back up" if racial bias was charged, thereby making it much more difficult to prevail. The trial judge, although initially impressed by this seemingly neutral reason for failing to press race discrimination claims, ultimately found the explanation "unacceptable" because the Unions also ignored grievances which involved racial harassment violating the contract covenant against racial discrimination, but which did not also violate another provision. The judge also noted that the Unions had refused to complain about racially based terminations of probationary employees, even though the express undertaking not to discriminate protected this group of employees, as well as others, and even though, as the District Court found, the Unions knew that blacks were being discharged at a disproportionately higher rate than whites. In the judgment of the District Court, the virtual failure by the Unions to file any race-bias grievances until after this lawsuit started, knowing that the employer was practicing what the contract prevented, rendered the Unions' explanation for their conduct unconvincing. [Footnote 13]As we understand it, there was no suggestion below that the Unions held any racial animus against or denigrated blacks generally. Rather, it was held that a collective bargaining agent could not, without violating Title VII and Page 482 U. S. 669 § 1981, follow a policy of refusing to file grievable racial discrimination claims however strong they might be and however sure the agent was that the employer was discriminating against blacks. The Unions, in effect, categorized racial grievances as unworthy of pursuit and, while pursuing thousands of other legitimate grievances, ignored racial discrimination claims on behalf of blacks, knowing that the employer was discriminating in violation of the contract. Such conduct, the courts below concluded, intentionally discriminated against blacks seeking a remedy for disparate treatment based on their race, and violated both Title VII and § 1981. As the District Court said:"A union which intentionally avoids asserting discrimination claims, either so as not to antagonize the employer and thus improve its chances of success on other issues or in deference to the perceived desires of its white membership, is liable under both Title [VII] and § 1981, regardless of whether, as a subjective matter, its leaders were favorably disposed toward minorities."580 F. Supp. at 1160.The courts below, in our view, properly construed and applied Title VII and § 1981. Those provisions do not permit a union to refuse to file any and all grievances presented by a black person on the ground that the employer looks with disfavor on and resents such grievances. It is no less violative of these laws for a union to pursue a policy of rejecting disparate treatment grievances presented by blacks solely because the claims assert racial bias and would be very troublesome to process.In both Nos. 85-1626 and 85-2010, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtGoodman v. Lukens Steel Co., 482 U.S. 656 (1987)Goodman v. Lukens Steel Co.No. 85-1626Argued April 1, 1987Decided June 19, 1987*482 U.S. 656SyllabusIn 1973, petitioners in No. 85-1626 (hereinafter petitioners), including individual employees of Lukens Steel Co. (Lukens), brought suit in Federal District Court against Lukens and the employees' collective bargaining agents (Unions), asserting racial discrimination claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The court held that Pennsylvania's 6-year statute of limitations governing contract claims applied to § 1981 claims, that Lukens had discriminated in certain respects, and that the Unions were also guilty of discriminatory practices in failing to challenge Lukens' discriminatory discharges of probationary employees, in failing and refusing to assert instances of racial discrimination as grievances, and in tolerating and tacitly encouraging racial harassment. The court entered injunctive orders against Lukens and the Unions, reserving damages issues for further proceedings. The Court of Appeals held that Pennsylvania's 2-year statute of limitations governing personal injury actions, rather than the 6-year statute, controlled the § 1981 claims, but affirmed the liability judgment against the Unions.Held:1. The Court of Appeals was correct in selecting the Pennsylvania 2-year limitations period governing personal injury actions as the most analogous state statute of limitations to govern all § 1981 suits. Section 1981 speaks not only to personal rights to contract, but also to personal rights to sue, to testify, and to equal rights under all laws for the security of persons and property; and all persons are to be subject to like punishments, taxes, and burdens of every kind. Cf. Wilson v. Garcia, 471 U. S. 261. The Court of Appeals also properly concluded that the 2-year statute should be applied retroactively to petitioners here, even though the court overruled its prior 1977 and 1978 decisions that refused to apply Pennsylvania's 2-year personal injury statute to the § 1981 claims involved in those cases. Chevron Oil Co. v. Huson, 404 U. S. 97, advises that nonretroactivity is appropriate in certain circumstances, including when the decision overrules clear Circuit precedent on which the complaining party is entitled to rely. However, until the Court of Page 482 U. S. 657 Appeals' 1977 decision, there had been no authoritative specification of which statute of limitations applied to an employee's § 1981 claims, and hence no clear precedent on which petitioners could have relied when they filed their complaint in 1973. As for the other Chevron factors, applying the 2-year statute here will not frustrate any federal law or result in inequity to the workers, who are charged with knowledge that it was an unsettled question as to how far back from the date of filing their complaint the damages period would reach. Pp. 482 U. S. 660-664.2. The courts below properly held that the Unions violated Title VII and § 1981. Because both courts agreed on the facts pertaining to whether the Unions had treated blacks and whites differently and intended to discriminate on the basis of race, this Court will not examine the record, absent the Unions' showing of extraordinary reasons for doing so. There is no merit to the Unions' contention that the judgment rests on the erroneous legal premise that Title VII and § 1981 are violated if a union passively sits by and does not affirmatively oppose the employer's racially discriminatory employment practices. In fact, both courts below concluded that the case against the Unions was one of more than mere acquiescence, in that the Unions deliberately chose not to assert claims of racial discrimination by the employer. Nor is there any merit to the argument that the only basis for Title VII liability was § 703(c)(3)'s prohibition against a union's causing or attempting to cause illegal discrimination by an employer, which was not supported by the record. Both courts found that the Unions had discriminated on the basis of race by the way in which they represented the workers, and the Court of Appeals held that the deliberate choice not to process grievances violated § 703(c)(1), the plain language of which supports such conclusion. Furthermore, the District Court properly rejected the Unions' explanation that, in order not to antagonize the employer, they did not include racial discrimination claims in grievances claiming other contract violations. A union that intentionally fails to assert discrimination claims, either to avoid antagonizing the employer, and thus to improve chances of success on other issues, or in deference to the desires of its white membership, is liable under both Title VII and § 1981, regardless of whether, as a subjective matter, its leaders are favorably disposed toward minorities. Pp. 482 U. S. 664-669.777 F.2d 113, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, J., joined, in Part I of which POWELL and SCALIA, JJ., joined, and in Part II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, Page 482 U. S. 658 post, p. 482 U. S. 669. POWELL, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, and in Parts I, II, III, and IV of which O'CONNOR, J., joined, post, p. 680. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, post p. 689.

1956_3

MR. JUSTICE BRENNAN delivered the opinion of the Court.This is a direct appeal under § 2 of the Expediting Act [Footnote 1] from a judgment of the District Court for the Northern District of Illinois, [Footnote 2] dismissing the Government's action brought in 1949 under § 15 of the Clayton Act. [Footnote 3] The complaint alleged a violation of § 7 of the Act [Footnote 4] resulting from the purchase by E. I. du Pont de Nemours and Company in 1917-1919 of a 23% stock interest in General Motors Corporation. This appeal is from the dismissal of the action as to du Pont, General Motors, and the corporate holders of large amounts of du Pont stock, Christiana Securities Corporation and Delaware Realty & Investment Company. [Footnote 5]The primary issue is whether du Pont's commanding position as General Motors' supplier of automotive Page 353 U. S. 589 finishes and fabrics was achieved on competitive merit alone, or because its acquisition of the General Motors' stock, and the consequent close inter-company relationship, led to the insulation of most of the General Motors' market from free competition, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce.The first paragraph of § 7, pertinent here, provides:"That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce. [Footnote 6]"Section 7 is designed to arrest in its incipiency not only the substantial lessening of competition from the acquisition by one corporation of the whole or any part of the stock of a competing corporation, but also to arrest in their incipiency restraints or monopolies in a relevant market which, as a reasonable probability, appear at the time of suit likely to result from the acquisition by one corporation of all or any part of the stock of any other corporation. The section is violated whether or not actual restraints or monopolies, or the substantial lessening of competition, have occurred or are intended. Acquisitions solely for investment are excepted, but only if, and so long as, the stock is not used by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Page 353 U. S. 590We are met at the threshold with the argument that § 7, before its amendment in 1950, applied only to an acquisition of the stock of a competing corporation, and not to an acquisition by a supplier corporation of the stock of a customer corporation -- in other words, that the statute applied only to horizontal, and not to vertical, acquisitions. This is the first case presenting the question in this Court. International Shoe Co. v. Federal Trade Comm'n, 280 U. S. 291, and Thatcher Mfg. Co. v. Federal Trade Comm'n, 272 U. S. 554, involved corporate acquisitions of stock of competitors.During the 35 years before this action was brought, the Government did not invoke § 7 against vertical acquisitions. The Federal Trade Commission has said that the section did not apply to vertical acquisitions. See FTC, Report on Corporate Mergers and Acquisitions, 168 (1955), H.R.Doc.No. 169, 84th Cong., 1st Sess. Also, the House Committee considering the 1950 revision of § 7 stated that " . . . it has been thought by some that this legislation [the 1914 Act] applies only to the so-called horizontal mergers. . . ." H.R.Rep. No. 1191, 81st Cong., 1st Sess. 11. The House Report adds, however, that the 1950 amendment was purposed " . . . to make it clear that the bill applies to all types of mergers and acquisitions, vertical and conglomerate as well as horizontal. . . ." (Emphasis added.)This Court has the duty to reconcile administrative interpretations with the broad antitrust policies laid down by Congress. Cf. Automatic Canteen Co. v. Federal Trade Comm'n, 346 U. S. 61, 346 U. S. 74. The failure of the Commission to act is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the Act. Accord, Baltimore & Ohio R. Co. v. Jackson, 353 U. S. 325, 353 U. S. 331.The first paragraph of § 7, written in the disjunctive, plainly is framed to reach not only the corporate acquisition Page 353 U. S. 591 of stock of a competing corporation, where the effect may be substantially to lessen competition between them, but also the corporate acquisition of stock of any corporation, competitor or not, where the effect may be either (1) to restrain commerce in any section or community, or (2) tend to create a monopoly of any line of commerce. The amended complaint does not allege that the effect of du Pont's acquisition may be to restrain commerce in any section or community, but alleges that the effect was " . . . to tend to create a monopoly in particular lines of commerce. . . ."Section 7 contains a second paragraph dealing with a holding company's acquisition of stock in two or more corporations. [Footnote 7] Much of the legislative history of the section deals with the alleged holding company evil. [Footnote 8] This history does not aid in interpretation, because our concern here is with the first paragraph of the section. There is, however, pertinent legislative history which does aid and support our construction.Senator Chilton, one of the Senate Managers of the bill, explained that the House conferees insisted that, to prohibit just the acquisitions where the effect was "substantially" to lessen competition would not accomplish the designed aim of the statute, because"a corporation might acquire the stock of another corporation, Page 353 U. S. 592 and there would be no lessening of competition, but the tendency might be to create monopoly or to restrain trade or commerce.""Therefore," said Senator Chilton,"there was added . . . the following: 'Or to restrain such commerce in any section or community or tend to create a monopoly of any line of commerce.' [Footnote 9]"This construction of the section, as embracing three separate and distinct effects of a stock acquisition, has also been recognized by a number of federal courts. [Footnote 10]We hold that any acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, is within the reach of the section whenever the reasonable likelihood appears that the acquisition will result in a restraint of commerce or in the creation of a monopoly of any line of commerce. Thus, although du Pont and General Motors are not competitors, a violation of the section has occurred if, as a result of the acquisition, there was at the time of suit a reasonable likelihood of a monopoly of any line of commerce. Judge Maris correctly stated in Transamerica Corp. v. Board of Governors, 206 F.2d 163, 169:"A monopoly involves the power to . . . exclude competition when the monopolist desires to do so. Obviously, under Section 7, it was not necessary . . . to find that . . . [the defendant] has actually achieved monopoly power, but merely that the stock acquisitions under attack have brought it measurably closer to that end. For it is the purpose of the Page 353 U. S. 593 Clayton Act to nip monopoly in the bud. Since, by definition, monopoly involves the power to eliminate competition, a lessening of competition is clearly relevant in the determination of the existence of a tendency to monopolize. Accordingly, in order to determine the existence of a tendency to monopoly in . . . any . . . line of business, the area or areas of existing effective competition in which monopoly power might be exercised must first be determined. . . ."Appellees argue that there exists no basis for a finding of a probable restraint or monopoly within the meaning of § 7 because the total General Motors market for finishes and fabrics constituted only a negligible percentage of the total market for these materials for all uses, including automotive uses. It is stated in the General Motors brief that, in 1947, du Pont's finish sales to General Motors constituted 3.5% of all sales of finishes to industrial users, and that its fabrics sales to General Motors comprised 1.6% of the total market for the type of fabric used by the automobile industry.Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition "within the area of effective competition." [Footnote 11] Substantiality can be determined only in terms of the market affected. The record shows that automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products sufficiently distinct from all other finishes Page 353 U. S. 594 and fabrics [Footnote 12] to make them a "line of commerce" within the meaning of the Clayton Act. Cf. Van Camp & Sons Co. v. American Can Co., 278 U. S. 245. [Footnote 13] Thus, the Page 353 U. S. 595 bounds of the relevant market for the purposes of this case are not coextensive with the total market for finishes and fabrics, but are coextensive with the automobile industry, the relevant market for automotive finishes and fabrics. [Footnote 14]The market affected must be substantial. Standard Fashion Co. v. Magrane-Houston Co., 258 U. S. 346, 258 U. S. 357. Moreover, in order to establish a violation of § 7, the Government must prove a likelihood that competition may be "foreclosed in a substantial share of . . . [that market]." [Footnote 15] Both requirements are satisfied in this case. The substantiality of a relevant market comprising the automobile industry is undisputed. The substantiality of General Motors' share of that market is fully established in the evidence.General Motors is the colossus of the giant automobile industry. It accounts annually for upwards of two fifths of the total sales of automotive vehicles in the nation. [Footnote 16] Page 353 U. S. 596 In 1955, General Motors ranked first in sales and second in assets among all United States industrial corporations, [Footnote 17] and became the first corporation to earn over a billion dollars in annual net income. [Footnote 18] In 1947, General Motors' total purchases of all products from du Pont were $26,628,274, of which $18,938,229 (71%) represented purchases from du Pont's Finishes Division. Of the latter amount, purchases of "Duco" [Footnote 19] and the thinner used to apply "Duco" totaled $12,224,798 (65%), and "Dulix" [Footnote 20] purchases totaled $3,179,225. Purchases by General Motors of du Pont fabrics in 1948 amounted to $3,700,000, making it the largest account of du Pont's Fabrics Division. Expressed in percentages, du Pont supplied 67% of General Motors' requirements for finishes in 1946, and 68% in 1947. [Footnote 21] In fabrics, du Pont supplied 52.3% of requirements in 1946, and 38.5% in 1947. [Footnote 22] Because General Motors accounts for almost one-half of the automobile industry's annual sales, its requirements for automotive finishes and fabrics must represent approximately one-half of the relevant market for these materials. Because the record clearly shows that, quantitatively and percentage-wise, du Pont supplies the largest part of General Motors' requirements, we must conclude that du Pont has a substantial share of the relevant market.The appellees argue that the Government could not maintain this action in 1949, because § 7 is applicable only to the acquisition of stock, and not to the holding Page 353 U. S. 597 or subsequent use of the stock. This argument misconceives the objective toward which § 7 is directed. The Clayton Act was intended to supplement the Sherman Act. [Footnote 23] Its aim was primarily to arrest apprehended consequences of inter-corporate relationships before those relationships could work their evil, which may be at or any time after the acquisition, depending upon the circumstances of the particular case. The Senate declared the objective of the Clayton Act to be as follows:". . . Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the Act of July 2, 1890 [the Sherman Act], or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency, and before consummation. . . ."S.Rep. No. 698, 63d Cong., 2d Sess. 1. (Emphasis added.)"Incipiency" in this context denotes not the time the stock was acquired, but any time when the acquisition threatens to ripen into a prohibited effect. See Transamerica Corp. v. Board of Governors, 206 F.2d 163, 166. To accomplish the congressional aim, the Government may proceed at any time that an acquisition may be said with reasonable probability to contain a threat that it may lead to a restraint of commerce or tend to create a monopoly of a line of commerce. [Footnote 24] Even when the purchase is solely for investment, the plain language of § 7 contemplates an action at any time the stock is used to Page 353 U. S. 598 bring about, or in attempting to bring about, the substantial lessening of competition. [Footnote 25]Prior cases under § 7 were brought at or near the time of acquisition. See, e.g., International Shoe Co. v. Federal Trade Comm'n, 280 U. S. 291; V. Vivaudou, Inc. v. Federal Trade Comm'n, 54 F.2d 273; Federal Trade Comm'n v. Thatcher Mfg. Co., 5 F.2d 615, rev'd in part on another ground, 272 U. S. 272 U.S. 554; United States v. Republic Steel Corp., 11 F. Supp. 117; In re Vanadium-Alloys Steel Co., 18 FTC 194. None of these cases holds, or even suggests, that the Government is foreclosed from bringing the action at any time when a threat of the prohibited effects is evident.Related to this argument is the District Court's conclusion that 30 years of nonrestraint negated "any reasonable probability of such a restraint" at the time of the suit. [Footnote 26] While it is, of course, true that proof of a mere possibility of a prohibited restraint or tendency to monopoly will not establish the statutory requirement that the effect of an acquisition "may be" such restraint or tendency, [Footnote 27] the basic facts found by the District Court demonstrate the error of its conclusion. [Footnote 28]The du Pont Company's commanding position as a General Motors supplier was not achieved until shortly Page 353 U. S. 599 after its purchase of a sizable block of General Motors stock in 1917. [Footnote 29] At that time, its production for the automobile industry and its sales to General Motors were relatively insignificant. General Motors then produced only about 11% of the total automobile production, and its requirements, while relatively substantial, were far short of the proportions they assumed as it forged ahead to its present place in the industry.At least 10 years before the stock acquisition, the du Pont Company, for over a century the manufacturer of military and commercial explosives, had decided to expand its business into other fields. It foresaw the loss of its market for explosives after the United States Army and Navy decided in 1908 to construct and operate their own plants. Nitrocellulose, a nitrated cotton, was the principal raw material used in du Pont's manufacture of smokeless powder. A search for outlets for this raw material uncovered requirements in the manufacture of lacquers, celluloid, artificial leather, and artificial silk. The first step taken was the du Pont purchase in 1910 of the Fabrikoid Company, then the largest manufacturer of artificial leather, reconstituted as the du Pont Fabrikoid Company in 1913.The expansion program was barely started, however, when World War I intervened. The du Pont Company suddenly found itself engulfed with orders for military explosives from foreign nations later to be allies of the United States in the war, and it had to increase its capacity and plant facilities from 700,000 to 37,000,000 pounds per month at a cost exceeding $200,000,000. Profits accumulated, and ultimately amounted to $232,000,000. The need to find postwar uses for its expanded facilities and organization now being greater than ever, Page 353 U. S. 600 du Pont continued its expansion program during the war years, setting aside $90,000,000 for the purpose. In September, 1915, du Pont bought the Arlington Works, one of the Nation's two largest celluloid companies. In June, 1916, the Fairfield Rubber Company, producers of rubber-coated fabrics for automobile and carriage tops, was taken over by du Pont Fabrikoid. In March, 1917, purchase was made of Harrison Brothers and Company, manufacturers of paint, varnish, acids and certain inorganic chemicals used in paint manufacture. Shortly afterwards, Harrison absorbed Beckton Chemical Company, a color manufacturer, and, also in 1917, the Bridgeport Wood Finishing Company, a varnish manufacturer.Thus, before the first block of General Motors stock was acquired, du Pont was seeking markets not only for its nitrocellulose, but also for the artificial leather, celluloid, rubber-coated goods, and paints and varnishes in demand by automobile companies. In that connection, the trial court expressly found that". . . reports and other documents written at or near the time of the investment show that du Pont's representatives were well aware that General Motors was a large consumer of products of the kind offered by du Pont,"and that John J. Raskob, du Pont's treasurer and the principal promoter of the investment, "for one, thought that du Pont would ultimately get all that business. . . ." [Footnote 30]The Company's interest in buying into General Motors was stimulated by Raskob and Pierre S. du Pont, then du Pont's president, who acquired personal holdings of General Motors stock in 1914. General Motors was organized six years earlier by William C. Durant to acquire previously independent automobile manufacturing companies -- Buick, Cadillac, Oakland, and Oldsmobile. Durant later brought in Chevrolet, organized by Page 353 U. S. 601 him when he was temporarily out of power during 1910-1915 and a bankers' group controlled General Motors. In 1915, when Durant and the bankers deadlocked on the choice of a Board of Directors, they resolved the deadlock by an agreement under which Pierre S. du Pont was named Chairman of the General Motors Board and Pierre S. du Pont, Raskob and two nominees of Mr. du Pont were named neutral directors. By 1916, Durant settled his differences with the bankers and resumed the presidency and his controlling position in General Motors. He prevailed upon Pierre S. du Pont and Raskob to continue their interest in General Motors' affairs, which both did as members of the Finance Committee, working closely with Durant in matters of finances and operations and plans for future expansion. Durant persistently urged both men and the "Wilmington people, as he called it," [Footnote 31] to buy more stock in General Motors.Finally, Raskob broached to Pierre S. du Pont the proposal that part of the fund earmarked for du Pont expansion be used in the purchase of General Motors stock. At this time, about $50,000,000 of the $90,000,000 fund was still in hand. Raskob foresaw the success of the automobile industry and the opportunity for great profit in a substantial purchase of General Motors stock. On December 19, 1917, Raskob submitted a Treasurer's Report to the du Pont Finance Committee recommending a purchase of General Motors stock in the amount of $25,000,000. That report makes clear that more than just a profitable investment was contemplated. A major consideration was that an expanding General Motors would provide a substantial market needed by the burgeoning du Pont organization. Raskob's summary of reasons in support of the purchase includes this statement: Page 353 U. S. 602"Our interest in the General Motors Company will undoubtedly secure for us the entire Fabrikoid, Pyralin [celluloid], paint, and varnish business of those companies, which is a substantial factor."(Emphasis added.) [Footnote 32]This thought, that the purchase would result in du Pont's obtaining a new and substantial market, was echoed in the Company's 1917 and 1918 annual reports to stockholders. In the 1917 report appears:"Though this is a new line of activity, it is one of great promise, and one that seems to be well suited to the character of our organization. The motor companies are very large consumers of our Fabrikoid and Pyralin, as well as paints and varnishes."(Emphasis added.) The 1918 report says: "The consumption of paints, varnishes and fabrikoid in the manufacture of automobiles gives another common interest."This background of the acquisition, particularly the plain implications of the contemporaneous documents, destroys any basis for a conclusion that the purchase was made "solely for investment." Moreover, immediately after the acquisition, du Pont's influence growing out of it was brought to bear within General Motors to achieve primacy for du Pont as General Motors' supplier of automotive fabrics and finishes.Two years were to pass before du Pont's total purchases of General Motors stock brought its percentage to 23% of the outstanding stock and its aggregate outlay to $49,000,000. During that period, du Pont and Durant worked under an arrangement giving du Pont primary responsibility for finances and Durant the responsibility for operations. But J. A. Haskell, du Pont's former sales manager and vice-president, became the General Motors vice-president in charge of the operations committee. The trial judge said that Haskell". . . was willing to undertake Page 353 U. S. 603 the responsibility of keeping du Pont informed of General Motors affairs during Durant's regime. . . . [Footnote 33]"Haskell frankly and openly set about gaining the maximum share of the General Motors market for du Pont. In a contemporaneous 1918 document, he reveals his intention to "pave the way for perhaps a more general adoption of our material," and that he was thinking"how best to get cooperation [from the several General Motors Divisions] whereby makers of such of the low priced cars as it would seem possible and wise to get transferred will be put in the frame of mind necessary for its adoption [du Pont's artificial leather]."Haskell set up lines of communication within General Motors to be in a position to know at all times what du Pont products and what products of du Pont competitors were being used. It is not pure imagination to suppose that such surveillance from that source made an impressive impact upon purchasing officials. It would be understandably difficult for them not to interpret it as meaning that a preference was to be given to du Pont products. Haskell also actively pushed the program to substitute Fabrikoid artificial leathers for genuine leather, and sponsored use of du Pont's Pyralin sheeting through a liaison arrangement set up between himself and the du Pont sales organization.Thus sprung from the barrier, du Pont quickly swept into a commanding lead over its competitors, who were never afterwards in serious contention. Indeed, General Motors' then principal paint supplier, Flint Varnish and Chemical Works, early in 1918 saw the handwriting on the wall. The Flint president came to Durant asking to be bought out, telling Durant, as the trial judge found, that he"knew du Pont had bought a substantial interest in General Motors and was interested in the paint industry; that . . . [he] felt he would lose a valuable Page 353 U. S. 604 customer, General Motors. [Footnote 34]"The du Pont Company bought the Flint Works, and later dissolved it.In less than four years, by August, 1921, Lammot du Pont, then a du Pont vice-president and later Chairman of the Board of General Motors, in response to a query from Pierre S. du Pont, then Chairman of the Board of both du Pont and General Motors, "whether General Motors was taking its entire requirements of du Pont products from du Pont," was able to reply that four of General Motors' eight operating divisions bought from du Pont their entire requirements of paints and varnishes, five their entire requirements of Fabrikoid, four their entire requirements of rubber cloth, and seven their entire requirements of Pyralin and celluloid. Lammot du Pont quoted du Pont's sales department as feeling that"the condition is improving, and that eventually satisfactory conditions will be established in every branch, but they wouldn't mind seeing things going a little faster."Pierre S. du Pont responded that,"with the change of management at Cadillac, Oakland, and Olds [Cadillac was taking very little paints and varnishes, and Oakland but 50%; Olds was taking only part of its requirements for fabrikoid], I believe that you should be able to sell substantially all of the paint, varnish and fabrikoid products needed."He also suggested that "a drive should be made for the Fisher Body business. Is there any reason why they have not dealt with us?"Fisher Body was stubbornly resistant to du Pont sales pressure. General Motors, in 1920, during Durant's time, acquired 60% stock control of Fisher Body Company. However, a voting trust was established giving the Fisher brothers broad powers of management. They insisted on running their own show, and for years withstood efforts of high-ranking du Pont and General Motors executives to Page 353 U. S. 605 get them to switch to du Pont from their accustomed sources of supply. Even after General Motors obtained 100% stock control in 1926, the Fisher brothers retained sufficient power to hold out. By 1947 and 1948, however, Fisher resistance had collapsed, and the proportions of its requirements supplied by du Pont compared favorably with the purchases by other General Motors Divisions.In 1926, the du Pont officials felt that too much General Motors business was going to its competitors. When Pierre S. du Pont and Raskob expressed surprise, Lammot du Pont gave them a breakdown, by dollar amounts, of the purchases made from du Pont's competitors. This breakdown showed, however, that only Fisher Body of the General Motors divisions was obtaining any substantial proportion of its requirements from du Pont's competitors.Competitors did obtain higher percentages of the General Motors business in later years, although never high enough at any time substantially to affect the dollar amount of du Pont's sales. Indeed, it appears likely that General Motors probably turned to outside sources of supply at least in part because its requirements outstripped du Pont's production, when General Motors' proportion of total automobile sales grew greater and the company took its place as the sales leader of the automobile industry. For example, an undisputed Government exhibit shows that General Motors took 93% of du Pont's automobile Duco production in 1941, and 83% in 1947.The fact that sticks out in this voluminous record is that the bulk of du Pont's production has always supplied the largest part of the requirements of the one customer in the automobile industry connected to du Pont by a stock interest. The inference is overwhelming that du Pont's commanding position was promoted by its stock interest, and was not gained solely on competitive merit. Page 353 U. S. 606We agree with the trial court that considerations of price, quality, and service were not overlooked by either du Pont or General Motors. Pride in its products and its high financial stake in General Motors' success would naturally lead du Pont to try to supply the best. But the wisdom of this business judgment cannot obscure the fact, plainly revealed by the record, that du Pont purposely employed its stock to pry open the General Motors market to entrench itself as the primary supplier of General Motors' requirements for automotive finishes and fabrics. [Footnote 35] Page 353 U. S. 607Similarly, the fact that all concerned in high executive posts in both companies acted honorably and fairly, each in the honest conviction that his actions were in the best interests of his own company and without any design to overreach anyone, including du Pont's competitors, does not defeat the Government's right to relief. It is not requisite to the proof of a violation of § 7 to show that restraint or monopoly was intended.The statutory policy of fostering free competition is obviously furthered when no supplier has an advantage over his competitors from an acquisition of his customer's stock likely to have the effects condemned by the statute. We repeat that the test of a violation of § 7 is whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned restraints. The conclusion upon this record is inescapable that such likelihood was proved as to this acquisition. The fire that was kindled in 1917 continues to smolder. It burned briskly to forge the ties that bind the General Motors market to du Pont, and if it has quieted down, it remains hot, and, from past performance, is likely at any time to blaze, and make the fusion complete. [Footnote 36]The judgment must therefore be reversed, and the cause remanded to the District Court for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute. The District Courts, in the framing of equitable decrees, are clothed Page 353 U. S. 608 "with large discretion to model their judgments to fit the exigencies of the particular case." International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 400-401.The motion of the appellees Christiana Securities Company and Delaware Realty and Investment Company for dismissal of the appeal as to them is denied. It seems appropriate that they be retained as parties pending determination by the District Court of the relief to be granted.It is so ordered

U.S. Supreme CourtUnited States v. E. I. du Pont de Nemours & Co., 353 U.S. 586 (1957)United States v. E. I. du Pont de Nemours & Co.No. 3Argued November 14-15, 1956Decided June 3, 1957353 U.S. 586SyllabusThis is a civil action brought by the Government in 1949 under § 15 of the Clayton Act to enjoin violations of § 7 of that Act resulting from the purchase by du Pont in 1917-1919 of a 23% stock interest in General Motors. The essence of the charge was that, by means of the close relationship of the two companies, du Pont had obtained an illegal preference over competitors in the sale of automotive finishes and fabrics to General Motors, thus tending to "create a monopoly" in a "line of commerce." After trial, the District Court dismissed the complaint on the ground that the Government had failed to prove its case, and the Government appealed directly to this Court.Held: the Government proved a violation of § 7; the judgment is reversed, and the cause is remanded to the District Court for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the stock acquisition offensive to the statute. Pp. 353 U. S. 588-608.(a) Any acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, was within the reach of § 7 before its amendment in 1950 whenever there was reasonable likelihood that the acquisition would result in a restraint of commerce or in the creation of a monopoly of any "line of commerce" -- i.e., it applied to vertical, as well as horizontal, stock acquisitions. Pp. 353 U. S. 590-593.(b) Failure of the Federal Trade Commission to invoke § 7 against vertical stock acquisitions is not a binding administrative interpretation that Congress did not intend vertical acquisitions to come within the purview of the Act. P. 353 U. S. 590.(c) The record shows that automotive finishes and fabrics have sufficient peculiar characteristics and uses to constitute them products sufficiently distinct from all other finishes and fabrics to make them a "line of commerce" within the meaning of the Clayton Act. Therefore, the bounds of the relevant market for the purposes of this case are not coextensive with the total market for finishes and Page 353 U. S. 587 fabrics, but are coextensive with the automobile industry, the relevant market for automotive finishes and fabrics. Pp. 353 U. S. 593-595.(d) The record shows that, quantitatively and percentage-wise, du Pont supplies the largest part of General Motors' requirements of finishes and fabrics. Therefore, du Pont has a substantial share of the relevant market. Pp. 353 U. S. 595-596.(e) The test of a violation is whether, at the time of suit, there is a reasonable probability that the stock acquisition may lead to a restraint of commerce or tend to create a monopoly of a line of commerce. Therefore, the Government may maintain this suit, brought in 1949, based upon an acquisition of stock which occurred in 1917-1919. Pp. 353 U. S. 596-607.(f) Even when a purchase of stock is solely for investment, the plain language of § 7 contemplates an action at any time the stock is used to bring about, or in attempting to bring about, a substantial lessening of competition. Pp. 353 U. S. 597-598.(g) On the record in this case, the background of the acquisition and the plain implications of the contemporaneous documents eliminate any basis for a conclusion that the purchase was made "solely for investment." Pp. 353 U. S. 598-602.(h) The bulk of du Pont's production of automotive finishes and fabrics has always supplied the largest part of the requirements of General Motors, the one customer in the automobile industry connected to du Pont by a stock interest, and there is an overwhelming inference that du Pont's commanding position was promoted by its stock interest, and was not gained solely on competitive merit. Pp. 353 U. S. 600-605.(i) It is not requisite to the proof of a violation of § 7 to show that restraint or monopoly was intended. P. 353 U. S. 607.126 F. Supp. 235, reversed and remanded. Page 353 U. S. 588

1971_71-5144

MR. JUSTICE MARSHALL delivered the opinion of the Court.Edward McNeil was convicted of two assaults in 1966, and sentenced to five years' imprisonment. Instead of committing him to prison, the sentencing court referred him to the Patuxent Institution for examination, to determine whether he should be committed to that institution for an indeterminate term under Maryland's Defective Delinquency Law. Md.Ann.Code, Art. 31B (1971). No such determination has yet been made, his sentence has expired, and his confinement continues. The State contends that he has refused to cooperate with the examining psychiatrists, that they have been unable to make any valid assessment of his condition, and that, consequently, he may be confined indefinitely until he cooperates and the institution has succeeded in making its evaluation. He claims that, when his sentence expired, the State lost its power to hold him, and that his continued detention violates his rights under the Fourteenth Amendment. We agree.IThe Maryland Defective Delinquency Law provides that a person convicted of any felony, or certain misdemeanors, may be committed to the Patuxent Institution for an indeterminate period if it is judicially determined that he is a "defective delinquent." A defective delinquent is defined as"an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly Page 407 U. S. 247 demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment."Md.Ann.Code, Art. 31B, § 5.Defective delinquency proceedings are ordinarily instituted immediately after conviction and sentencing; they may also be instituted after the defendant has served part of his prison term. §§ 6(b), 6(d). [Footnote 1] In either event, the process begins with a court order committing the prisoner to Patuxent for a psychiatric examination. §§ 6(b), 6(d). The institution is required to submit its report to the court within a fixed period of time. § 7(a). [Footnote 2] If the report recommends commitment, then a hearing must be promptly held, with a jury trial if requested by the prisoner, to determine whether he should be committed as a defective delinquent. § 8. If he is so committed, then the commitment operates to suspend the prison sentence previously imposed. § 9(b).In Murel v. Baltimore City Criminal Court, post, p. 407 U. S. 355, several prisoners who had been committed Page 407 U. S. 248 as defective delinquents sought to challenge various aspects of the criteria and procedures that resulted in their commitment; we granted certiorari in that case, together with this one, in order to consider together these challenges to the Maryland statutory scheme. For various reasons, we decline today to reach those questions, see Murel, supra. But Edward McNeil presents a much more stark and simple claim. He has never been committed as a defective delinquent, and thus he has no cause to challenge the criteria and procedures that control a defective delinquency hearing. His confinement rests wholly on the order committing him for examination, in preparation for such a commitment hearing. That order was made not on the basis of an adversary hearing, but on the basis of an ex parte judicial determination that there was "reasonable cause to believe that the Defendant may be a Defective Delinquent." [Footnote 3] Petitioner does not challenge in this Court the power of the sentencing court to issue such an order in the first instance, but he contends that the State's power to hold him on the basis of that order has expired. He filed a petition for state post-conviction relief on this ground, inter alia, pursuant to Md.Ann.Code, Art. 27, § 645A. The trial court denied relief, holding that"[a] person referred to Patuxent under Section 6, Article 31B for the purpose of determining whether or not he is a defective delinquent may be detained in Patuxent until the procedures for such determination have been completed regardless of whether or not the criminal sentence Page 407 U. S. 249 has expired."App. 35-36. The Court of Appeals of Maryland denied leave to appeal. App. 37-38. We granted certiorari, 404 U.S. 999 (1971).IIThe State of Maryland asserts the power to confine petitioner indefinitely, without ever obtaining a judicial determination that such confinement is warranted. Respondent advances several distinct arguments in support of that claim.First, respondent contends that petitioner has been committed merely for observation, and that a commitment for observation need not be surrounded by the procedural safeguards (such as an adversary hearing) that are appropriate for a final determination of defective delinquency. Were the commitment for observation limited in duration to a brief period, the argument might have some force. But petitioner has been committed "for observation" for six years, and, on respondent's theory of his confinement, there is no reason to believe it likely that he will ever be released. A confinement that is, in fact, indeterminate cannot rest on procedures designed to authorize a brief period of observation.We recently rejected a similar argument in Jackson v. Indiana, 406 U. S. 715 (1972), when the State sought to confine indefinitely a defendant who was mentally incompetent to stand trial on his criminal charges. The State sought to characterize the commitment as temporary, and on that basis to justify reduced substantive and procedural safeguards. We held that, because the commitment was permanent in its practical effect, it required safeguards commensurate with a long-term commitment. Id. at 723-730. The other half of the Jackson argument is equally relevant here. If the commitment is properly regarded as a short-term confinement with a limited purpose, as the respondent suggests, then lesser safeguards Page 407 U. S. 250 may be appropriate, but, by the same token, the duration of the confinement must be strictly limited."[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."Id. at 738. Just as that principle limits the permissible length of a commitment on account of incompetence to stand trial, so it also limits the permissible length of a commitment "for observation." We need not set a precise time limit here; it is noteworthy, however, that the Maryland statute itself limits the observation period to a maximum of six months. While the state courts have apparently construed the statute to permit extensions of time, see n 2, supra, nevertheless the initial legislative judgment provides a useful benchmark. In this case, it is sufficient to note that the petitioner has been confined for six years, and there is no basis for anticipating that he will ever be easier to examine than he is today. In these circumstances, it is a denial of due process to continue to hold him on the basis of an ex parte order committing him for observation.B. A second argument advanced by the respondent relies on the claim that petitioner himself prevented the State from holding a hearing on his condition. Respondent contends that, by refusing to talk to the psychiatrists, petitioner has prevented them from evaluating him, and has made it impossible for the State to go forward with evidence at a hearing. Thus, it is argued, his continued confinement is analogous to civil contempt; he can terminate the confinement and bring about a hearing at any time by talking to the examining psychiatrists, and the State has the power to induce his cooperation by confining him.Petitioner claims that he has a right the Fifth Amendment to withhold cooperation, a claim we need not consider here. But putting that claim to one side, there Page 407 U. S. 251 is nevertheless a fatal flaw in the respondent's argument. For if confinement is to rest on a theory of civil contempt, then due process requires a hearing to determine whether petitioner has in fact, behaved in a manner that amounts to contempt. At such a hearing, it could be ascertained whether petitioner's conduct is willful, or whether it is a manifestation of mental illness, for which he cannot fairly be held responsible. Robinson v. California, 370 U. S. 660 (1962). Civil contempt is coercive in nature, and consequently there is no justification for confining on a civil contempt theory a person who lacks the present ability to comply. Maggio v. Zeitz, 333 U. S. 56 (1948). Moreover, a hearing would provide the appropriate forum for resolution of petitioner's Fifth Amendment claim. Finally, if the petitioner's confinement were explicitly premised on a finding of contempt, then it would be appropriate to consider what limitations the Due Process Clause places on the contempt power. The precise contours of that power need not be traced here. It is enough to note that petitioner has been confined, potentially for life, although he has never been determined to be in contempt by a procedure that comports with due process. The contempt analogy cannot justify the State's failure to provide a hearing of any kind.C. Finally, respondent suggests that petitioner is probably a defective delinquent, because most noncooperators are. Hence, it is argued, his confinement rests not only on the purposes of observation, and of penalizing contempt, but also on the underlying purposes of the Defective Delinquency Law. But that argument proves too much. For if the Patuxent staff members were prepared to conclude, on the basis of petitioner's silence and their observations of him over the years, that petitioner is a defective delinquent, then it is not true the that he has prevented them from evaluating him. On that theory, Page 407 U. S. 252 they have long been ready to make their report to the court, and the hearing on defective delinquency could have gone forward.IIIPetitioner is presently confined in Patuxent without any lawful authority to support that confinement. His sentence having expired, he is no longer within the class of persons eligible for commitment to the Institution as a defective delinquent. Accordingly, he is entitled to be released. The judgment below is reversed, and the mandate shall issue forthwith.Reversed

U.S. Supreme CourtMcNeil v. Patuxent Institution, 407 U.S. 245 (1972)McNeil v. Patuxent InstitutionNo. 71-5144Argued April 20, 1972Decided June 19, 1972407 U.S. 245SyllabusPetitioner, who was given a five-year sentence, was referred under an ex parte order to the Patuxent Institution for examination to determine whether he should be committed for an indefinite term as a defective delinquent. In this proceeding for post-conviction relief, he challenge his confinement after expiration of that sentence as violative of due process. Respondent contends that petitioner's continued confinement is justified until petitioner cooperates with the examining psychiatrists and thus facilitates an assessment of his condition. The trial court denied relief, holding that a person confined under Maryland's Defective Delinquency Law may be detained until the statutory procedures for examination and report have been completed, regardless of whether or not the criminal sentence has expired.Held: In the circumstances of this case, it is a denial of due process to continue to hold petitioner on the basis of an ex parte order committing him to observation without the procedural safeguards commensurate with a long-term commitment, Jackson v. Indiana, 406 U. S. 715; and without affording him those safeguards his further detention cannot be justified as analogous to confinement for civil contempt or for any other reason. Pp. 407 U. S. 247-252.Reversed.MARSHALL, J., delivered the opinion for a unanimous Court. DOUGLAS, J., filed a concurring opinion, post, p. 252. Page 407 U. S. 246

1972_71-6193

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.Petitioners were convicted by a jury of transporting stolen goods and of conspiracy to transport stolen goods in interstate commerce, contrary to 18 U.S.C. § 2314 and 18 U.S.C. § 371. The central issue now is whether petitioners have standing to challenge the lawfulness of the seizure of merchandise stolen by them but stored in the premises of one Knuckles, a coconspirator. At the time of the seizure from Knuckles, petitioners were in police custody in a different State. Knuckles successfully challenged the introduction of the stolen goods seized from his store under a faulty warrant, and his case was separately tried.The evidence against petitioners is largely uncontroverted. Petitioner Brown was the manager of a warehouse in Cincinnati, Ohio, owned by a wholesale clothing and household goods company. He was entrusted with the warehouse keys. Petitioner Smith was a truck driver for the company. During 1968 and 1969, the company had experienced losses attributed to pilferage amounting to approximately $60,000 each year. One West, a buyer and supervisor for the company, recovered a slip of paper he had seen drop from Brown' pocket. On the slip, in Brown's handwriting, was a list of warehouse merchandise, together with a price on each item that was well below wholesale cost. West estimated that the lowest legitimate wholesale price for these items would have been a total of about $6,400, while the total as priced by Brown's list was $2,200. The police were Page 411 U. S. 225 promptly notified and set up a surveillance of the warehouse. Ten days later, petitioners were observed wheeling carts containing boxes of merchandise from the warehouse to a truck. From a concealed point, the police took 20 photographs of petitioners loading the merchandise onto the truck. Petitioners then locked the warehouse, and drove off. They were followed and stopped by the police, placed under arrest, advised of their constitutional rights, and, with the loaded truck, taken into custody to police headquarters. The goods in the truck had not been lawfully taken from the warehouse, and had a total value of about $6,500.Following their arrest, and after being fully informed of their constitutional rights, both petitioners made separate confessions to police indicating that they had conspired with Knuckles to steal from the warehouse, that they had stolen goods from the warehouse in the past, and that they had taken these goods, on two occasions about two months before their arrest, to Knuckles' store in Manchester, Kentucky. Petitioners also indicated that they had "sold" the previously stolen goods on delivery to Knuckles for various amounts of cash. Knuckles' store was then searched pursuant to a warrant, and goods stolen from the company, worth over $100,000 in retail value, were discovered. Knuckles was at the store during the search, but petitioners were in custody in Ohio.Prior to trial, petitioners and Knuckles [Footnote 1] moved to suppress the stolen merchandise found at Knuckles' store. The prosecution conceded that the warrant for the search of Knuckles' store was defective. The District Court held a hearing on petitioners' motion to suppress the evidence. Petitioners, however, alleged no proprietary or possessory interest in Knuckles' premises or in Page 411 U. S. 226 the goods seized there, nor was any evidence of such an interest presented to the District Court. After the hearing, the District Court granted Knuckles' motion to suppress the goods seized, but denied petitioners' motion for lack of standing. The charges against Knuckles were severed for separate trial.At petitioners' trial, stolen merchandise seized from Knuckles' store was received in evidence. The events leading to petitioners' arrests upon leaving the warehouse and while they were in possession of stolen goods were fully described by police officers who were eyewitnesses. The 20 photographs taken of the crime in progress were admitted into evidence. There was additional incriminating testimony by the owner of the service station from whom petitioners rented trucks used in the thefts, and by five witnesses who saw petitioners unloading boxes from a truck late at night and carrying the boxes into Knuckles' store. The prosecutor also introduced into evidence, over petitioners' objections, portions of each petitioner's confession which implicated the other in a manner now conceded to be contrary to Bruton v. United States, 391 U. S. 123 (1968). Those considerable parts of each petitioner's confession which did not implicate the other were admitted without objection. The jury returned verdicts of guilty on all counts.On appeal, the Court of Appeals for the Sixth Circuit recognized that a Bruton error had occurred, but went on to conclude that the independent proof of petitioners' guilt was "so overwhelming that the error was harmless," citing Harrington v. California, 395 U. S. 250 (1969). The Court of Appeals also held that the stolen merchandise seized pursuant to the defective warrant was properly admitted against petitioners, stating:"This ruling [of the District Court] was correct because appellants claimed no possessory or proprietary Page 411 U. S. 227 rights in the goods or in Knuckles' store, and it is clear that they cannot assert the Fourth Amendment right of another."452 F.2d 868, 870 (1971).(1)Petitioners contend that they have "automatic" standing to challenge the search and seizure at Knuckles' store. They rely on the decision of this Court in Jones v. United States, 362 U. S. 257 (1960), establishing a rule of "automatic" standing to contest an allegedly illegal search where the same possession needed to establish standing is "an essential element of the offense . . . charged." Simmons v. United States, 390 U. S. 377, 390 U. S. 390 (1968). That case involved(a) a seizure of contraband narcotics, (b) a defendant who was present at the seizure, [Footnote 2] and (c) an offense in which the defendant's possession of the seized narcotics at the time of the contested search and seizure was a critical part of the Government's case. Jones, supra, at 362 U. S. 263. Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the "dilemma" inherent in a defendant's need to allege "possession" to contest a seizure when such admission of possession could later be used against him. Id. at 362 U. S. 262-264. Mr. Justice Frankfurter quoted the words of Judge Learned Hand:"Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they Page 411 U. S. 228 must take on that role with enough detail to cast them without question. The petitioners at bar shrank from that predicament, but they were obliged to choose one horn of the dilemma."Connolly v. Medalie, 58 F.2d 629, 630 (CA2 1932).The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. 390 U.S. at 390 U. S. 389-394. For example, under the Simmons doctrine, the defendant is permitted to establish the requisite standing by claiming "possession" of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioner in this case could have asserted, at the pretrial suppression hearing, a possessory interest in the goods at Knuckles' store without any danger of incriminating themselves. They did not do so.But it is not necessary for us now to determine whether our decision in Simmons, supra, makes Jones' "automatic" standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is "an essential element of the offense . . . charged." Simmons, 390 U.S. at 390 U. S. 390. Here, unlike Jones, the Government's case against petitioners does not depend on petitioners' possession of the seized evidence at the time of the contested search and seizure. [Footnote 3] Page 411 U. S. 229 The stolen goods seized had been transported and "sold" by petitioners to Knuckles approximately two months before the challenged search. The conspiracy and transportation alleged by the indictment were carefully limited to the period before the day of the search.In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking "advantage of contradictory positions." Jones v. United States, supra, at 362 U. S. 263. See United States v. Allenberrie, 424 F.2d 1209, 1212-1214 (CA7 1970); United States v. Cowan, 396 F.2d 83, 86 (CA2 1968); Niro v. United, States, 388 F.2d 535, 537 (CA1 1968); United States v. Bozza, 365 F.2d 206, 223 (CA2 1966). But cf.. United States v. Price, 447 F.2d 23, 29 (CA2), cert. denied, 44 U.S. 912 (1971).Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones' "automatic" standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such "automatic" standing where, as here, there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing, and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized. Page 411 U. S. 230 Nor, incidentally, does the record reveal any such interest. [Footnote 4] As the Court of Appeals correctly concluded, petitioners had no standing to contest the defective warrant used to search Knuckles' store; they could not then, and cannot now, rely on the Fourth Amendment rights of another."Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States, 390 U. S. 377 (1968); Jones v. United States, 362 U. S. 257 (1960)."Alderman v. United States, 394 U. S. 165, 394 U. S. 174 (1969). See Wong Sun v. United States, 371 U. S. 471, 371 U. S. 492 (1963).(2)The Solicitor General concedes that, under Bruton, supra, statements made by petitioners were improperly admitted into evidence. Neither petitioner testified at the trial. The prosecution tendered police testimony as to statements made by Smith implicating Brown in the crimes charged, even though these statements were made out of Brown's presence. [Footnote 5] This testimony was Page 411 U. S. 231 admitted into evidence. Similar statements, made by Brown relating to Smith, were also admitted. Petitioners' counsel made timely objections.Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in Harrington v. California, 395 U. S. 250 (1969), the independent evidence "is so overwhelming that, unless we say that no violation of Bruton can constitute harmless error, we must leave this . . . conviction undisturbed," id. at 395 U. S. 254. We reject the notion that a Bruton error can never be harmless. "[A] defendant is entitled to a fair trial, but not a perfect one," Page 411 U. S. 232 for there are no perfect trials. Bruton v. United States, 391 U.S. at 391 U. S. 135, quoting Lutwak v. United States, 344 U. S. 604, 344 U. S. 619 (1953). See Schneble v. Florida, 405 U. S. 427, 405 U. S. 432 (1972); Chapman v. California, 386 U. S. 18, 386 U. S. 23-24 (1967).Affirmed

U.S. Supreme CourtBrown v. United States, 411 U.S. 223 (1973)Brown v. United StatesNo. 71-6193Argued December 7, 1972Decided April 17, 1973411 U.S. 223SyllabusPetitioners were convicted of transporting and conspiring to transport stolen goods in interstate commerce to their coconspirator, whose retail store was searched under a defective warrant while petitioners were in custody in another State. The charges against petitioners were limited to acts committed before the day of the search. At a pretrial hearing on petitioners' motion to suppress evidence seized at the store, petitioners alleged no proprietary or possessory interest in the store or the goods, and the District Court denied their motion for lack of standing. At petitioners' trial, the seized goods were introduced into evidence. In addition, police testimony as to statements by petitioners implicating each other were introduced into evidence in a manner contrary to Bruton v. United States, 391 U. S. 123. The Court of Appeals concluded that the Bruton error was harmless in view of overwhelming independent proof of guilt, and affirmed the District Court's ruling on standing.Held:1. Petitioners had no standing to contest the admission of the evidence seized under the defective warrant, since they alleged no legitimate expectation of privacy or interest of any kind in the premises searched or the goods seized; they had no "automatic" standing under Jones v. United States, 362 U. S. 257, as the case against them did not depend on possession of the seized evidence at the time of the contested search and seizure, and they could not vicariously assert the personal Fourth Amendment right of the store owner in contesting admission of the seized goods. Pp. 411 U. S. 227-230.2. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury, and the Bruton error was harmless. Pp. 411 U. S. 230-232.452 F.2d 868, affirmed.BURGER, C.J., delivered the opinion for a unanimous Court. Page 411 U. S. 224

1983_82-599

JUSTICE O'CONNOR delivered the opinion of the Court.These consolidated cases present the question whether §§ 611-613A of the Internal Revenue Code (Code), 26 U.S.C. §§ 611-613A, entitle taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income received from lessees of their oil and gas mineral interests.IAEver since enacting the earliest income tax laws, Congress has subsidized the development of our Nation's natural resources. Toward this end, Congress has allowed holders of economic interests in mineral deposits, including oil and gas wells, to deduct from their taxable incomes the larger of two Page 464 U. S. 209 depletion allowances: cost or percentage. [Footnote 1] Under cost depletion, taxpayers amortize the cost of their wells over their total productive lives. [Footnote 2] Under percentage depletion, taxpayers deduct a statutorily specified percentage of the "gross income" generated from the property, irrespective of actual costs incurred. [Footnote 3] Through these depletion provisions, Congress has permitted taxpayers to recover the investments they have made in mineral deposits and to generate additional capital for further exploration and production of the Nation's mineral resources.Taxpayers have historically preferred the allowance for percentage, as opposed to cost, depletion on wells that are good producers, because the tax benefits are significantly greater. Prior to 1975, it was well settled that taxpayers leasing their interests in mineral deposits to others were entitled to percentage depletion on any bonus [Footnote 4] or advance Page 464 U. S. 210 royalty [Footnote 5] received, whether there was production of the underlying mineral or not. The bonus was regarded as "payment in advance for oil and gas to be extracted," Herring v. Commissioner, 293 U. S. 322, 293 U. S. 324 (1934), and the advance royalty was considered a "return pro tanto of [the lessor's] capital investment in the oil in anticipation of its extraction. . . ." Palmer v. Bender, 287 U. S. 551, 287 U. S. 559 (1933). Though the Commissioner of Internal Revenue had once argued that the allowance should not apply to such income, [Footnote 6] this Court determined that both lease bonuses and advance royalties constituted "gross income from property," and accordingly were subject to percentage depletion. See Herring v. Commissioner, supra, at 293 U. S. 327-328. The depletion was based on the income received from the property, and not, at least in the short run, on the production of the substance itself. 293 U.S. at 293 U. S. 327-328.Even under pre-1975 law, however, depletion deductions eventually had to be attributed to actual production. Lessors receiving bonus or advance royalty income without oil or gas being produced during the life of the lease have been required to recapture their depletion deductions and restore the previously deducted amounts to income. See Douglas v. Commissioner, 322 U. S. 275, 322 U. S. 285 (1944). Furthermore, Page 464 U. S. 211 since only one percentage depletion allowance is statutorily authorized for each dollar of oil and gas income, lessees have always been required to reduce their allowances by any bonuses or advance royalties paid to lessors. See Helvering v. Twin Bell Oil Syndicate, 293 U. S. 312 (1934). Thus, prior to 1975, those who held economic interests in mineral deposits, large or small, were entitled to a single percentage depletion deduction for all income from the property, including lease bonus and advance royalty income, so long as oil or gas was eventually extracted from the land.The 1970's, however, brought about an abrupt redirection in the Nation's energy policy. Escalating energy prices and the Arab oil embargo awakened the public to the Nation's growing reliance on foreign energy sources. Some thought the major integrated oil companies were reaping excessive oil and gas profits at the public's expense, while reinvesting little of their concomitant tax depletion subsidies in domestic energy production. [Footnote 7] Congress responded to this public outcry by repealing the percentage depletion allowance as applied to the major integrated oil companies. See Tax Reduction Act of 1975, Pub.L. 94-12, 89 Stat. 26, 47-53. At the same time, however, it exempted independent producers and royalty owners from the repeal to encourage domestic production. In new § 613A, Congress provided that". . . the allowance for depletion under section 611 shall be computed in accordance with section 613 with respect to -- ""(A) so much of the taxpayer's average daily production of domestic crude oil as does not exceed the taxpayer's depletable oil quantity; and "Page 464 U. S. 212"(B) so much of the taxpayer's average daily production of domestic natural gas as does not exceed the taxpayer's depletable natural gas quantity;""and the applicable percentage (determined in accordance with the table contained in paragraph (5)) shall be deemed to be specified in subsection (b) of section 613 for purposes of subsection (a) of that section."26 U.S.C. § 613A(c)(1). [Footnote 8] Thus, beginning with tax year 1975, only taxpayers who met the terms of this new provision were eligible for the percentage depletion allowance. [Footnote 9]BDuring 1975, Fred Engle and his wife assigned their two Wyoming oil and gas leases to third parties, retaining overriding royalties in each lease. As partial consideration for these assignments, the Engles received a total of $7,600 in advance royalties. This $7,600 constituted the entire income the Engles received from the property in 1975, since there was no oil and gas production that year. On their joint federal income tax return for 1975, the Engles claimed a percentage depletion deduction equal to 22% of the advance royalties received. The Commissioner disallowed the deduction because the advance royalties were not received "with respect to" any "average daily production" of oil or gas as, in his view, was required by the 1975 amendments to the Code.The Tax Court, with one judge dissenting, upheld the Commissioner's determination. 76 T.C. 915 (1981). It agreed that new § 613A tied the oil and gas percentage Page 464 U. S. 213 depletion allowance to actual production, and that the Engles' advance royalty receipts were not attributable to such production. [Footnote 10] But the Court of Appeals for the Seventh Circuit reversed. 677 F.2d 594 (1982). It found that Congress' motivation in retaining the percentage depletion allowance for "small producers" -- namely, to subsidize domestic energy development -- was equally applicable to advance royalties received by lessors. Id. at 600. The Court of Appeals therefore held that, in light of this motivation and the Code's longstanding treatment of advance royalties, new § 613A should be interpreted to authorize a percentage depletion allowance on advance royalties received, so long as there eventually was production from the property. Id. at 601-602.Also during 1975, the families of Philip D. Farmar and A. A. Sugg, joint owners of 46,515 acres of land in Irion County, Tex., leased their oil and gas interests to various lessees. Under the leases, the Farmars and Suggs were to receive as royalties 20% of all oil and gas produced and sold from the property or 20% of the value of all oil and gas produced from the leases. The leases also provided that the Farmars and Suggs were to receive annual cash bonuses, beginning with a small sum in 1975 and continuing with large sums through 1979, over the life of the lease. These bonuses were payable even if no oil or gas was produced from the property. In 1976, oil and gas was discovered on the Irion property and was produced in substantial amounts. The Farmars and Suggs claimed percentage depletion deductions on both the bonuses and royalties received in that year. The Commissioner disallowed the percentage depletion deductions on the lease bonuses, again because income of this type was not received "with respect to" any "average daily production." Page 464 U. S. 214After paying the resulting deficiencies, the Farmars and Suggs filed a consolidated suit for refund in the Court of Claims. The Court of Claims held for the Commissioner. 231 Ct.Cl. 642, 689 F.2d 1017 (1982). It concluded that"[t]his statutory language regularly linking depletion directly to production during a taxable year indicates to us that Congress wanted depletion allowable only 'with respect to' income derived from, or connected with, actual extraction during the taxable year."Id. at 649, 689 F.2d at 1021. Since lease bonus income was not so attributable, the court determined that the Farmars and Suggs were not entitled to a percentage depletion allowance on it. See id. at 656-657, 689 F.2d at 1025.The Commissioner sought a writ of certiorari from the adverse decision of the Court of Appeals for the Seventh Circuit, and the Farmars and Suggs sought a writ of certiorari from the adverse decision of the Court of Claims. We granted both writs, 459 U.S. 1102 (1983), and consolidated the cases so that we could decide the effect the Tax Reduction Act of 1975 had on percentage depletion of oil and gas income.IIThe 1975 amendments to the Code did not repeal any of the provisions that previously entitled taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income arising from oil and gas mineral interests. Rather, the 1975 amendments added new § 613A, which, as its title indicates, is a "Limitatio[n] on percentage depletion in case of oil and gas wells." Our sole task in this case is to determine whether Congress, in enacting the § 613A "limitation," intended to deny the allowance for percentage depletion on advance royalty or lease bonus income altogether.AOur starting point, of course, is the language of the statute itself. That language authorizes any independent producer Page 464 U. S. 215 or royalty owner not otherwise disqualified, see 26 U.S.C. § 613A(d), to compute "the allowance for depletion under section 611. . . in accordance with" § 613's "gross income from . . . property" concept. 26 U.S.C. § 613A(c)(1). That language also stipulates that the allowance be "with respect to . . . so much of the taxpayer's average daily production . . . as does not exceed the taxpayer's depletable . . . quantity. . . ." Ibid. The Commissioner and the taxpayers take different positions as to what this language means.The Commissioner contends that new § 613A finally adopts the position he took a half century ago in the Herring case -- namely, that taxpayers are not entitled to percentage depletion on any income not attributable to specific units of production during the taxable year. [Footnote 11] He points to § 613A(c)(1)'s requirement that "the allowance . . . be computed . . . with respect to . . . the taxpayer's average daily production" and to the repeated references in §§ 613A(c)(2) through (10) to "aggregate production," "production during the taxable year," and "production during the calendar year." From these statutory reference points, the Commissioner contends that § 613A redefines depletable "gross income from . . . property" to be that income attributable to specific units of production during the taxable year. [Footnote 12] Since lease bonuses and advance royalties are not attributable to specific production during any taxable year, the Commissioner concludes that Congress did not intend such receipts to be eligible for percentage, Page 464 U. S. 216 as opposed to cost, depletion. See Brief for Commissioner 18-24.The taxpayers, by contrast, suggest that Congress did not intend, by enacting new § 613A, to change the tax treatment of lease bonus or advance royalty income at all. Rather, they contend that the percentage depletion allowance is available regardless of whether physical extraction occurred during the year for which the deduction is claimed. Under their view, the reference to "average daily production" in § 613A constitutes a limitation on the amount of, rather than a prerequisite to, the deduction a taxpayer may claim. Furthermore, the requirement that the allowance be "with respect to" production is simply the pre-1975 recapture requirement reenacted: depletion deductions must always "be with respect to" actual or prospective extraction. Since lease bonus and advance royalty receipts are income arising from the property, the taxpayers conclude that they are eligible for percentage depletion so long as they do not exceed the § 613A limitation and production eventually occurs on the property. See Brief for Respondents in No. 82-599, pp. 5-9; Brief for Petitioners in No. 82-774, pp. 7-16.The Commissioner's and taxpayers' interpretations do not exhaust the possible readings of this linguistic maze. For example, § 613A could also be read to change the timing, though not the availability, of the percentage depletion allowance. [Footnote 13] Under this view, all income arising from the property would potentially be subject to an eventual allowance for depletion, but the actual deduction would be deferred to a year in which it could be attributed, by some allocation Page 464 U. S. 217 method, to actual production. Since lease bonus and advance royalty income always precede production, they would be included in taxable income during the year of receipt. The depletion allowance attributable to such receipts, however, would be capitalized and amortized against income in years of actual extraction, subject to the rates and depletable quantities limitations applicable in those subsequent years. [Footnote 14]Each of these possible interpretations of new § 613A can be reconciled with the language of the statute itself. Congress' repeated references to "production" during the "taxable year" could not have been completely inadvertent, but each of the possible interpretations gives meaning to those references. Our duty then is"to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested."NLRB v. Lion Oil Co., 352 U. S. 282, 352 U. S. 297 (1957) (Frankfurter, J., concurring in part and dissenting in part). The circumstances of the enactment of particular legislation may be particularly relevant to this inquiry, Watt v. Alaska, 451 U. S. 259, 451 U. S. 266 (1981), and it is to those circumstances that we now turn.BThe 1975 amendments to the Code responded both to the public outcry concerning the country's growing dependence on foreign energy and to the alleged excessive profits that major integrated oil companies were earning. Congress wanted to encourage domestic production [Footnote 15] and to improve Page 464 U. S. 218 the competitive position of "small producers" -- the independents and the royalty owners -- vis-a-vis the major integrated ones. [Footnote 16] Section 613A's goal, more simply put, was to subsidize the combined efforts of small producers and royalty owners in the exploration and production of the Nation's oil and gas resources. Any reasonable interpretation of the statute, therefore, must harmonize with this goal.If the Commissioner's interpretation were adopted, taxpayers would receive percentage depletion on income derived from oil and gas interests only if the payment associated with that income could be attributed directly to specific units of production. On that view, lessors and lessees interested in favorable tax benefits will not use financing arrangements that provide for prepayments on production, that spread income to nonproduction periods or, more importantly, that shift the risks of nonproduction to the parties better able to bear them. [Footnote 17] Lessors naturally will begin demanding larger Page 464 U. S. 219 production royalties to offset the increased expense resulting from delayed receipt of payments, income bunching, and risk bearing. Lessees who are forced to pay the increased royalties will, in turn, have less money with which to purchase leases or to extract minerals therefrom. Thus, solely for tax reasons, lessors and lessees will choose less preferred forms of financing their exploration and production efforts and, in the long run, devote fewer dollars to development of the Nation's energy reserves. In short, the Commissioner's interpretation anomalously suggests that a Congress intent on increasing domestic production by small producers included substantial economic disincentives in the same enabling legislation. Such an interpretation does not comport with Congress' effort to increase production by the independent producers and royalty owners. By contrast, allowing percentage depletion on all qualified income arising from the property makes available the maximum public subsidy that Congress was willing to provide.Ironically, the Commissioner defends his interpretation by reference to the oil and gas crisis that existed in 1975. See Reply Brief for Commissioner 7. He argues that, if lessors are allowed percentage depletion only on income directly attributable to production, they will have strong incentives to encourage lessees to produce oil and gas immediately from the property. No one disputes this premise. Requiring lessors to defer percentage depletion deductions to years of actual production would indeed optimize the incentives for early production of the property. But the Commissioner has not suggested that the percentage depletion deductions on Page 464 U. S. 220 advance royalties and lease bonuses be deferred to years of actual production; he argues that they be eliminated altogether. Eliminating the percentage depletion deductions, rather than deferring them, will reduce the total amount of "gross income" subject to the percentage depletion allowance, and thereby shrink the public subsidy of domestic oil and gas production. Smaller public subsidies, in turn, mean reduced exploration and production incentives and smaller absolute quantities of domestic production. Thus, the Commissioner's initial premise -- that Congress wanted to encourage domestic exploration and production -- is against the general position he has taken with respect to lease bonus and advance royalty income.CThe reasonableness of each possible interpretation of the statute can also be measured against the legislative process by which § 613A was enacted. When the 1975 amendments were introduced, neither the bill, H.R. 2166, 94th Cong., 1st Sess. (1975), nor the accompanying Ways and Means Committee Report, see H.Rep. No. 94-19 (1975), provided for repeal of the percentage depletion allowance on oil and gas wells. Rather, the provision repealing the percentage depletion allowance was introduced only during debate on the House floor. See 121 Cong.Rec. 4651-4652 (1975). This floor amendment did not contain any of the exemptions ultimately enacted as part of § 613A, including the exemption for independent producers and royalty owners. It was only when H.R. 2166 reached the Senate floor that the exemption for independent producers and royalty owners was added. See id. at 7813. The Congress then enacted H.R. 2166, with slight alteration by the Conference Committee, as it was amended on the Senate floor.At no time during either the Senate's or the Conference Committee's consideration of H.R. 2166 was a repeal of the percentage depletion allowance on lease bonus or advance royalty income suggested. Rather, both the Senate and the Page 464 U. S. 221 conferees agreed to maintain the percentage depletion allowance, in its entirety, for those small producers and royalty owners whose income from the property did not exceed that associated with the yearly depletable quantities. [Footnote 18] As explained by the Conference Report, the proposed legislation"retains percentage depletion at 22 percent on a permanent basis for the small independent producer to the extent that his average daily production of oil does not exceed 2,000 barrels a day, or his average daily production of gas does not exceed 12,000,000 cubic feet. Where the independent producer has both oil and natural gas production, the exemption must be allocated between two types of production.""* * * *" ". . . The conference substitute follows the Senate amendment in providing a small producer exemption from the repeal of percentage depletion for oil and gas."H R. Conf Rep. No. 94-120, pp. 67-68 (1975) (emphasis added). Thus, in exempting independent producers and royalty owners from the repeal, the Senate and the Conference Committee expressed a clear intent to retain the percentage depletion rules as they then existed. Again, the congressional intent is more in harmony with interpretations of the statute Page 464 U. S. 222 that retain percentage depletion on all forms of income than with the Commissioner's interpretation.The Commissioner attempts to find legislative support for his interpretation not in the history of the enacting Congress, but in the history of a previous Congress. In H.R. 17488, 93d Cong., 2d Sess. (1974), the House proposed to repeal the percentage depletion allowance for oil and gas production and, at the same time, to exempt certain independent producers from the repeal. The House Ways and Means Committee Report on H.R. 17488 emphasized that"a lease bonus paid to the lessor of mineral lands in a lump sum or in installments is independent of any actual production from the lease, and thus would not be within any of the exemptions."H.R.Rep. No. 93-1502, p. 46 (1974). The Commissioner suggests that"'[t]he idea of a special exemption for small entities, expressly involving production, was very much in the air of the 94th Congress, and it is not unlikely that the prior report was known to several, if not many, of the members who considered § 613A,' and almost certainly to those who proposed that Section 613A be added to the tax reduction bill."Reply Brief for Commissioner 6 (quoting 231 Ct.Cl. at 654, 689 F.2d at 1024).In the 94th Congress, however, the House Ways and Means Committee reported out another bill, H.R. 2166, in lieu of H.R. 17488. This bill retained the percentage depletion allowance and differed from H.R. 17488 in many other respects. See 121 Cong.Rec. 4651-4652 (1975). Thus, it cannot be said that a subsequent Congress, or even the House Ways and Means Committee itself, [Footnote 19] retained the Page 464 U. S. 223 same intent as reflected in H.R. 17488. Moreover, since it was the Senate, and not the House, that added the small producer exemption to H.R. 2166, [Footnote 20] we must dismiss the Commissioner's reconstruction of the legislative intent as mere wishful thinking. The idea of an exemption for small producers was certainly in the "air" of the 94th Congress, but we find no evidence that a change in the definition of depletable "gross income" was aloft with it. [Footnote 21]DWe have noted that"[t]he true meaning of a single section of a statute in a setting as complex as that of the revenue acts, however precise its language, cannot be ascertained if it be considered apart from related sections, or if the mind be isolated from the history of the income tax legislation of which it is an integral part."Helvering v. Morgan's, Inc., 293 U. S. 121, 293 U. S. 126 (1934). When the Commissioner's, the taxpayers', and the commentators' interpretations of § 613A are viewed in these terms, it becomes clear to us that Congress did not mean, as the Commissioner's interpretation suggests, to withdraw the percentage depletion allowance on Page 464 U. S. 224 lease bonus or advance royalty income arising from oil and gas properties.The 1975 Congress was concerned with shrinking domestic production levels and with assisting smaller producers to compete with the larger ones. Since most depletion deductions are on royalty payments attributable to actual production, Congress, in its haste, not surprisingly defined the class of taxpayers exempted from the percentage depletion repeal in terms of certain production levels. Section 613A clearly provides that income attributable to production over a certain level will not be eligible for percentage depletion. But nothing in the statute bars percentage depletion on income received prior to actual production. To the contrary, we agree that, so long as the income can, by some allocation method, be attributed to production below the ceilings Congress established, lease bonus and advance royalty income come within the four corners of the percentage depletion provisions. Lease bonuses and advance royalties are payments received in advance for oil and gas to be extracted, see Herring v. Commissioner, 293 U. S. 322 (1934), and therefore should be subject to the § 613(a) computation of, and § 611 allowance for, oil and gas depletion.IIIUnable to find persuasive support for his position in the text, general purpose, or specific history of the Tax Reduction Act of 1975, the Commissioner reminds us both that the "choice among reasonable interpretations is for the Commissioner, not the courts," National Muffler Dealers Assn., Inc. v. United States, 440 U. S. 472, 440 U. S. 488 (1979), and that his choice, if found to "implement the congressional mandate in some reasonable manner," must be upheld. United States v. Correll, 389 U. S. 299, 389 U. S. 307 (1967)."But that principle [only sets] the framework for judicial analysis; it does not displace it. We find that the [Commissioner's interpretation] is . . . unreasonable,"and we therefore cannot defer to it. United Page 464 U. S. 225 States v. Cartwright, 411 U. S. 546, 411 U. S. 550 (1973) (similarly refusing to defer to unreasonable position of Commissioner).Holders of economic interests in oil and gas deposits have consistently been entitled to a percentage depletion allowance on all income arising from their property, including lease bonuses and advance royalties, for the past 50 years. See Herring v. Commissioner, supra. Our cases have taken a long-run view of the relation between income and production, and we have interpreted the Code to allow percentage depletion on all income so long as actual extraction eventually occurs. See Douglas v. Commissioner, 322 U. S. 275 (1944). We usually presume that"Congress is . . . aware of [our longstanding] interpretation of a statute, and adopt[s] that interpretation when it reenacts [the] statute without [explicit] change. . . ."Lorillard v. Pons, 434 U. S. 575, 434 U. S. 580 (1978); see also Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 414, n. 8 (1975). Had Congress meant to eliminate the percentage depletion allowance on lease bonus and advance royalty income, we believe it would have addressed our decisions to the contrary more explicitly. See Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 289 (1956). Since Congress did not, we find the Commissioner's short-run view of the relation between income and production to be at odds with the amended statutory scheme.The percentage depletion provisions, as modified in 1975, plainly were intended to encourage independent producers and royalty owners to explore and develop the Nation's domestic oil and gas deposits. See supra at 464 U. S. 217-218. Yet the Commissioner would discourage these small producers from using the financing arrangements that would optimize their combined efforts to produce oil and gas. See supra at 464 U. S. 218-220. Not only would the Commissioner deny lessors percentage depletion on lease bonus and advance royalty income, but he also would continue to require lessees to reduce their depletion allowances by the amounts lessors would have been allowed, under pre-1975 law, to deplete. See Rev.Rul. Page 464 U. S. 226 81-266, 1981-2 Cum.Bull. 139. The Commissioner would allow no one to take the single allowance that the statute clearly contemplates someone should take. See 26 U.S.C. §§ 611(b)(1), 613(a). Thus, the Commissioner not only skews the industry's preferred means of financing oil and gas exploration, but he unreasonably denies that industry a subsidy Congress expressly contemplated it should receive. [Footnote 22] Such an interpretation is "unrealistic and unreasonable," and therefore is not entitled to deference. United States v. Cartwright, supra, at 411 U. S. 550.Finally, the Commissioner has not persuaded us of any "insurmountable" practical problems that would render his position more tenable. We do not doubt that § 613A's various production requirements and limitations make accurate calculation of the percentage depletion allowance difficult in the absence of actual production figures. See 76 T.C. at 926. But we believe the Commissioner can resolve these problems in a number of reasonable ways, for example, by requiring lessors to defer depletion deductions to years of actual production or by requiring lessors to adjust deductions taken with amended returns filed in later tax years. [Footnote 23] The Commissioner Page 464 U. S. 227 has broad authority to prescribe all "needful rules and regulations" for the enforcement of the tax laws, see 26 U.S.C. § 7805(a), and it is up to him to choose the method that best implements the statutory mandate. See United States v. Correll, 389 U.S. at 389 U. S. 306-307. What the Commissioner cannot do -- because it is an "unreasonable" interpretation of the statutory language in light of its history and purpose -- is to resolve the practical problems by eliminating the allowance altogether. Eliminating the allowance might make the statute "simpler to administer," Reply Brief for Commissioner 9, and n. 8, but it does so by ignoring the language of the statute, the views of those who sought its enactment, and the purpose they articulated.IVIn cases such as these, where the effective and expeditious enforcement of our Nation's tax laws is at issue, what we do not decide is as important as what we do decide. These cases do not concern whether taxpayers must include bonuses and advance royalties in their income in the year of receipt. No one questions that taxpayers must do that. See North American Oil Consolidated v. Burnet, 286 U. S. 417 (1932). Nor do these cases concern the appropriate tax period in which the percentage depletion deduction should be used to offset taxable income. That issue is a significant one, but none of the parties has directly raised it for our review. Cf. 26 CFR § 1.461-1 (1983) (assets having useful life beyond close of year not necessarily deductible in year expenditure made). Rather, our decision holds only that §§ 611-613A of the Code entitle taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income at some time during the productive life of the lease.Accordingly, since the Commissioner has never contested the tax period in which the Engles claimed their percentage depletion deduction, the judgment of the Court of Appeals Page 464 U. S. 228 for the Seventh Circuit in No. 82-599 is affirmed. [Footnote 24] The judgment of the Court of Claims in No. 82-774 denying the Farmars and Suggs any percentage depletion on their lease bonus income is reversed, and the case is remanded for further proceedings in conformity with this opinion.It is so ordered

U.S. Supreme CourtCommissioner v. Engle, 464 U.S. 206 (1984)Commissioner of Internal Revenue v. EngleNo. 82-599Argued October 11, 1983Decided January 10, 1984*464 U.S. 206SyllabusIn response both to the public outcry concerning the United States' growing dependence on foreign energy and to the alleged excessive profits that major integrated oil companies were earning, the Tax Reduction Act of 1975 repealed, as applied to the major integrated oil companies, the percentage depletion allowance authorized as a deduction from taxable income, but exempted independent producers and royalty owners from the repeal so as to encourage domestic production of oil and gas. The Act added § 613A to the Internal Revenue Code. That section provides that a percentage depletion allowance under § 611 for such independent producers and royalty owners shall be computed in accordance with § 613"with respect to . . . so much of the taxpayer's average daily production of domestic crude oil as does not exceed the taxpayer's depletable oil quantity"and "depletable natural gas quantity." During 1975, respondents (husband and wife) in No. 82-599 assigned their oil and gas leases to third parties, while retaining overriding royalties. As partial consideration for these assignments, respondents received $7,600 in advance royalties. This constituted the entire income received from the property in 1975, since there was no oil and gas production that year. On their joint federal income tax return for 1975, respondents claimed a percentage depletion deduction equal to 22% of the advance royalties. The Commissioner of Internal Revenue disallowed the deduction because the advance royalties were not received "with respect to" any "average daily production" of oil or gas. The Tax Court upheld this determination, but the Court of Appeals reversed. In No. 82-774, petitioner joint owners leased their oil and gas interests in 1975 to various lessees. Under the leases, petitioners were to receive both royalties from oil and gas produced and annual cash bonuses even if no oil or gas was produced. In 1976, oil and gas was discovered on the property and was produced in substantial amounts. Petitioners claimed depletion deductions on both the bonuses and the royalties received in that year. Page 464 U. S. 207 The Commissioner disallowed the deduction on the bonuses, again because they were not received "with respect to" any "average daily production." After paying the resulting deficiencies, petitioners filed a suit for refund in the Court of Claims, which held for the Commissioner.Held: Section 613A was not intended to deny the allowance for percentage depletion on advance royalty or lease bonus income altogether; rather, §§ 611-613A entitle taxpayers to such an allowance at some time during the productive life of the lease. Pp. 464 U. S. 214-227.(a) Any reasonable interpretation of § 613A must harmonize with the section's goal of subsidizing the combined efforts of small producers and royalty owners in the exploration and production of the Nation's oil and gas resources. The Commissioner's interpretation -- under which taxpayers would receive percentage depletion on income derived from oil and gas interests only if the payment associated with that income could be attributed directly to specific units of production, and which anomalously suggests that a Congress intent on increasing domestic production by small producers included substantial economic disincentives in the same legislation -- does not comport with this goal. By contrast, allowing percentage depletion on all qualified income makes available the maximum public subsidy that Congress was willing to provide. Pp. 464 U. S. 217-220.(b) The legislative history of § 613A discloses a clear congressional intent to retain the percentage depletion rules that existed in 1975, and under which taxpayers leasing their interests in mineral deposits were entitled to a percentage depletion on any bonus or advance royalty whether there was production of the underlying mineral or not. Pp. 464 U. S. 220-223.(c) When § 613A is considered together with related Code sections and in light of the legislative history, it is clear that Congress did not mean to withdraw the percentage depletion on lease bonuses or advance royalty income arising from oil and gas properties. Section 613A clearly provides that income attributable to production over a certain level will not be eligible for percentage depletion, but nothing in the statute bars such a depletion on income received prior to actual production. To the contrary, so long as the income can be attributed to production below the established ceilings, lease bonuses and royalty income come within the four corners of the percentage depletion provisions. Pp. 464 U. S. 223-224.(d) Since the Commissioner's interpretation is unreasonable, this Court will not defer to it. The Commissioner has not shown any "insurmountable" practical problems that would render his position more tenable. While § 613A's various production requirements and limitations make accurate calculation of percentage depletion allowances difficult Page 464 U. S. 208 in the absence of production figures, these problems can be resolved in a number of reasonable ways, as, for example, by requiring lessors to defer depletion deductions to years of actual production or to adjust deductions taken with amended returns. The Commissioner cannot resolve the practical problems by eliminating the allowances altogether. Pp. 464 U. S. 224-227.No. 82-599, 677 F.2d 594, affirmed; No. 82-774, 231 Ct.Cl. 642, 689 F.2d 1017, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 464 U. S. 228.

1979_78-572

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case raises the question whether a trial court's denial of a motion for certification of a class may be reviewed on appeal after the named plaintiff's personal claim has become "moot." The United States Court of Appeals for the Third Circuit held that a named plaintiff, respondent here, who brought a class action challenging the validity of the United States Parole Commission's Parole Release Guidelines, could continue his appeal of a ruling denying class certification even though he had been released from prison while the appeal was pending. We granted certiorari, 440 U.S. 945 (1979), to consider this issue of substantial significance, under Art. III of the Constitution, to class-action litigation, [Footnote 1] and to resolve the conflict in approach among the Courts of Appeals. [Footnote 2] Page 445 U. S. 391IIn 1973, the United States Parole Board adopted explicit Parole Release Guidelines for adult prisoners. [Footnote 3] These guidelines establish a "customary range" of confinement for various classes of offenders. The guidelines utilize a matrix, which combines a "parole prognosis" score (based on the prisoner's age at first conviction, employment background, and other personal factors) and an "offense severity" rating, to yield the "customary" time to be served in prison.Subsequently, in 1976, Congress enacted the Parole Commission and Reorganization Act (PCRA), Pub.L. 9233, 90 Stat. 219, 18 U.S.C. §§ 4201-4218. This Act provided the first legislative authorization for parole release guidelines. It required the newly created Parole Commission to"promulgate rules and regulations establishing guidelines for the powe[r] . . . to grant or deny an application or recommendation to parole any eligible prisoner."§ 4203. Before releasing a prisoner on parole, the Commission must find, "upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner," that release "would not depreciate the seriousness of his offense or promote disrespect for the law" and that it "would not jeopardize the public welfare." § 4206(a).Respondent John M. Geraghty was convicted in the United States District Court for the Northern District of Illinois of Page 445 U. S. 392 conspiracy to commit extortion, in violation of 18 U.S.C. § 1951, and of making false material declarations to a grand jury, in violation of 18 U.S.C. § 1623 (1976 ed. and Supp. II). [Footnote 4] On January 25, 1974, two months after initial promulgation of the release guidelines, respondent was sentenced to concurrent prison terms of four years on the conspiracy count and one year on the false declarations count. The United States Court of Appeals for the Seventh Circuit affirmed respondent's convictions. United States v. Braasch, 505 F.2d 139 (1974), cert. denied sub nom. Geraghty v. United States, 421 U.S. 910 (1975).Geraghty later, pursuant to a motion under Federal Rule of Criminal Procedure 35, obtained from the District Court a reduction of his sentence to 30 months. The court granted the motion because, in the court's view, application of the guidelines would frustrate the sentencing judge's intent with respect to the length of time Geraghty would serve in prison. United States v. Braasch, No. 72 CR 979 (ND Ill., Oct. 9, 1975), appeal dism'd and mandamus denied, 542 F.2d 442 (CA7 1976).Geraghty then applied for release on parole. His first application was denied in January, 1976, with the following explanation:"Your offense behavior has been rated as very high severity. You have a salient factor score of 11. You have been in custody for a total of 4 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found Page 445 U. S. 393 that a decision at this consideration outside the guidelines does not appear warranted."App. 5. If the customary release date applicable to respondent under the guidelines were adhered to, he would not be paroled before serving his entire sentence minus good-time credits. Geraghty applied for parole again in June, 1976; that application was denied for the same reasons. He then instituted this civil suit as a class action in the United States District Court for the District of Columbia, challenging the guidelines as inconsistent with the PCRA and the Constitution, and questioning the procedures by which the guidelines were applied to his case.Respondent sought certification of a class of "all federal prisoners who are or who will become eligible for release on parole." Id. at 17. Without ruling on Geraghty's motion, the court transferred the case to the Middle District of Pennsylvania, where respondent was incarcerated. Geraghty continued to press his motion for class certification, but the court postponed ruling on the motion until it was prepared to render a decision on cross-motions for summary judgment.The District Court subsequently denied Geraghty's request for class certification and granted summary judgment for petitioners on all the claims Geraghty asserted. 429 F. Supp. 737 (1977). The court regarded respondent's action as a petition for a writ of habeas corpus, to which Federal Rule of Civil Procedure 23 applied only by analogy. It denied class certification as "neither necessary nor appropriate." 429 F. Supp. at 740. A class action was "necessary" only to avoid mootness. The court found such a consideration not comprehended by Rule 23. It found class certification inappropriate because Geraghty raised certain individual issues and, inasmuch as some prisoners might be benefited by the guidelines, because his claims were not typical of the entire proposed class. 429 F. Supp. at 740-741. On the merits, the court ruled that the guidelines are consistent with the PCRA and Page 445 U. S. 394 do not offend the Ex Post Facto Clause, U.S.Const., Art. I, § 9, cl. 3. 429 F. Supp. at 741-744.Respondent, individually "and on behalf of a class," appealed to the United States Court of Appeals for the Third Circuit. App. 29. Thereafter, another prisoner, Becher, who had been denied parole through application of the guidelines and who was represented by Geraghty's counsel, moved to intervene. Becher sought intervention to ensure that the legal issue raised by Geraghty on behalf of the class "will not escape review in the appeal in this case." Pet. to Intervene After Judgment 2. The District Court, concluding that the filing of Geraghty's notice of appeal had divested it of jurisdiction, denied the petition to intervene. Becher then filed a timely notice of appeal from the denial of intervention. The two appeals were consolidated.On June 30, 1977, before any brief had been filed in the Court of Appeals, Geraghty was mandatorily released from prison; he had served 22 months of his sentence, and had earned good-time credits for the rest. Petitioners then moved to dismiss the appeals as moot. The appellate court reserved decision of the motion to dismiss until consideration of the merits.The Court of Appeals, concluding that the litigation was not moot, reversed the judgment of the District Court and remanded the case for further proceedings. 579 F.2d 238 (CA3 1978). If a class had been certified by the District Court, mootness of respondent Geraghty's personal claim would not have rendered the controversy moot. See, e.g., Sosna v. Iowa, 419 U. S. 393 (1975). The Court of Appeals reasoned that an erroneous denial of a class certification should not lead to the opposite result. 579 F.2d at 248-252. Rather, certification of a "certifiable" class, that erroneously had been denied, relates back to the original denial, and thus preserves jurisdiction. Ibid.On the question whether certification erroneously had been denied, the Court of Appeals held that necessity is not a prerequisite Page 445 U. S. 395 under Rule 23. 579 F.2d at 252. The court expressed doubts about the District Court's finding that class certification was "inappropriate." While Geraghty raised some claims not applicable to the entire class of prisoners who are or will become eligible for parole, the District Court could have "certif[ied] certain issues as subject to class adjudication, and . . . limite[d] overbroad classes by the use of sub-classes." Id. at 253. Failure "to consider these options constituted a failure properly to exercise discretion." Ibid. "Indeed, this authority may be exercised sua sponte." Ibid. The Court of Appeals also held that refusal to certify because of a potential conflict of interest between Geraghty and other members of the putative class was error. The subclass mechanism would have remedied this problem as well. Id. at 252-253. Thus, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation of the proper subclasses. Id. at 254. The court also remanded the motion for intervention. Id. at 245, n. 21. [Footnote 5]In order to avoid "improvidently dissipat[ing] judicial effort," id. at 254, the Court of Appeals went on to consider whether the trial court had decided the merits of respondent's case properly. The District Court's entry of summary judgment was found to be error because, "if Geraghty's recapitulation of the function and genesis of the guidelines is supported by the evidence," the guidelines "may well be" unauthorized or unconstitutional. Id. at 259, 268. Thus, the dispute on the merits also was remanded for further factual development.IIArticle III of the Constitution limits federal "judicial Power," that is, federal court jurisdiction, to "Cases" and "Controversies." This case or controversy limitation serves Page 445 U. S. 396 "two complementary" purposes. Flast v. Cohen, 392 U. S. 83, 392 U. S. 95 (1968). It limits the business of federal courts to "questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process," and it defines the"role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government."Ibid. Likewise, mootness has two aspects: "when the issues presented are no longer live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U. S. 486, 395 U. S. 496 (1969). It is clear that the controversy over the validity of the Parole Release Guidelines is still a "live" one between petitioners and at least some members of the class respondent seeks to represent. This is demonstrated by the fact that prisoners currently affected by the guidelines have moved to be substituted, or to intervene, as "named" respondents in this Court. See n 1, supra. We therefore are concerned here with the second aspect of mootness, that is, the parties' interest in the litigation. The Court has referred to this concept as the "personal stake" requirement. E.g., Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 755 (1976); Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962).The personal stake requirement relates to the first purpose of the case or controversy doctrine -- limiting judicial power to disputes capable of judicial resolution. The Court in Flast v. Cohen, 392 U.S. at 392 U. S. 100-101, stated:"The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. . . . Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary Page 445 U. S. 397 context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy,' Baker v. Carr, [369 U.S.] at 369 U. S. 204, and whether the dispute touches upon 'the legal relations of parties having adverse legal interests,' Aetna Life Insurance Co. v. Haworth, [300 U.S.] at 300 U. S. 240-241."See also Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 418 U. S. 216-218 (1974).The "personal stake" aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as"the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)."Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973).IIIOn several occasions, the Court has considered the application of the "personal stake" requirement in the class action context. In Sosna v. Iowa, 419 U. S. 393 (1975), it held that mootness of the named plaintiff's individual claim after a class has been duly certified does not render the action moot. It reasoned that,"even though appellees . . . might not again enforce the Iowa durational residency requirement against [the class representative], it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified."Id. at 419 U. S. 400. The Court stated specifically that an Art. III case or controversy"may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even Page 445 U. S. 398 though the claim of the named plaintiff has become moot."Id. at 419 U. S. 402. [Footnote 6]Although one might argue that Sosna contains at least an implication that the critical factor for Art. III purposes is the timing of class certification, other cases, applying a "relation back" approach, clearly demonstrate that timing is not crucial. When the claim on the merits is "capable of repetition, yet evading review," the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation. E.g., Gerstein v. Pugh, 420 U. S. 103, 420 U. S. 110, n. 11 (1975). The "capable of repetition, yet evading review" doctrine, to be sure, was developed outside the class action context. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 514-515 (1911). But it has been applied where the named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff; the litigation then may continue notwithstanding the named plaintiff's current lack of a personal stake. See, e.g., Weinstein v. Bradford, 423 U. S. 147, 423 U. S. 149 (1975); Roe v. Wade, 410 U. S. 113, 410 U. S. 123-125 (1973). Since the litigant faces some likelihood of becoming involved in the same controversy in the future, vigorous advocacy can be expected to continue.When, however, there is no chance that the named plaintiff's expired claim will reoccur, mootness still can be avoided through certification of a class prior to expiration of the named plaintiff's personal claim. E.g., Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 752-757. See Kremens v. Bartley, Page 445 U. S. 399 431 U. S. 119, 431 U. S. 129-130 (1977). Some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires. The Court considered this possibility in Gerstein v. Pugh, 420 U.S. at 420 U. S. 110, n. 11. Gerstein was an action challenging pretrial detention conditions. The Court assumed that the named plaintiffs were no longer in custody awaiting trial at the time the trial court certified a class of pretrial detainees. There was no indication that the particular named plaintiffs might again be subject to pretrial detention. Nonetheless, the case was held not to be moot because:"The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case, the constant existence of a class of persons suffering the deprivation is certain. The attorney representing the named respondents is a public defender, and we can safely assume that he has other clients with a continuing live interest in the case."Ibid. See also Sosna v. Iowa, 419 U.S. at 419 U. S. 402, n. 11.In two different contexts, the Court has stated that the proposed class representative who proceeds to a judgment on the merits may appeal denial of class certification. First, this assumption was "an important ingredient," Deposit Guaranty Nat. Bank v. Roper, ante at 445 U. S. 338, in the rejection of interlocutory appeals, "as of right," of class certification denials. Coopers & Lybrand v. Livesay, 437 U. S. 463, 437 U. S. 469, 470, n. 15 (1978). The Court reasoned that denial of class status will not necessarily be the "death knell" of a small claimant action, since there still remains "the prospect of prevailing on Page 445 U. S. 400 the merits and reversing an order denying class certification." Ibid.Second, in United Airlines, Inc. v. McDonald, 432 U. S. 385, 432 U. S. 393-395 (1977), the Court held that a putative class member may intervene, for the purpose of appealing the denial of a class certification motion, after the named plaintiffs' claims have been satisfied and judgment entered in their favor. Underlying that decision was the view that "refusal to certify was subject to appellate review after final judgment at the behest of the named plaintiffs." Id. at 432 U. S. 393. See also Coopers & Lybrand v. Livesay, 437 U.S. at 437 U. S. 469. And today, the Court holds that named plaintiffs whose claims are satisfied through entry of judgment over their objections may appeal the denial of a class certification ruling. Deposit Guaranty Nat. Bank v. Roper, ante p. 445 U. S. 326.Gerstein, McDonald, and Roper are all examples of cases found not to be moot, despite the loss of a "personal stake" in the merits of the litigation by the proposed class representative. The interest of the named plaintiffs in Gerstein was precisely the same as that of Geraghty here. Similarly, after judgment had been entered in their favor, the named plaintiffs in McDonald had no continuing narrow personal stake in the outcome of the class claims. And in Roper, the Court points out that an individual controversy is rendered moot, in the strict Art. III sense, by payment and satisfaction of a final judgment. Ante at 445 U. S. 333.These cases demonstrate the flexible character of the Art. III mootness doctrine. [Footnote 7] As has been noted in the past, Page 445 U. S. 401 Art. III justiciability is "not a legal concept with a fixed content or susceptible of scientific verification." Poe v. Ullman, 367 U. S. 497, 367 U. S. 508 (1961) (plurality opinion). "[T]he justiciability doctrine [is] one of uncertain and shifting contours." Flast v. Cohen, 392 U.S. at 392 U. S. 97.IVPerhaps somewhat anticipating today's decision in Roper, petitioners argue that the situation presented is entirely different when mootness of the individual claim is caused by "expiration" of the claim, rather than by a judgment on the claim. They assert that a proposed class representative who individually prevails on the merits still has a "personal stake" in the outcome of the litigation, while the named plaintiff whose claim is truly moot does not. In the latter situation, where no class has been certified, there is no party before the court with a live claim, and it follows, it is said, that we have no jurisdiction to consider whether a class should have been certified. Brief for Petitioners 37-39.We do not find this distinction persuasive. As has been noted earlier, Geraghty's "personal stake" in the outcome of the litigation is, in a practical sense, no different from that of the putative class representatives in Roper. Further, the opinion in Roper indicates that the approach to take in applying Art. III is issue by issue."Nor does a confession of judgment Page 445 U. S. 402 by defendants on less than all the issues moot an entire case; other issues in the case may be appealable. We can assume that a district court's final judgment fully satisfying named plaintiffs' private substantive claims would preclude their appeal on that aspect of the final judgment; however, it does not follow that this circumstance would terminate the named plaintiffs' right to take an appeal on the issue of class certification."Ante at 445 U. S. 333. See also United Airlines, Inc. v. McDonald, 432 U.S. at 432 U. S. 392; Powell v. McCormack, 395 U.S. at 395 U. S. 497.Similarly, the fact that a named plaintiff's substantive claims are mooted due to an occurrence other than a judgment on the merits does not mean that all the other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues for judicial resolution. One is the claim on the merits; the other is the claim that he is entitled to represent a class. "The denial of class certification stands as an adjudication of one of the issues litigated," Roper, ante at 445 U. S. 336. We think that, in determining whether the plaintiff may continue to press the class certification claim after the claim on the merits "expires," we must look to the nature of the "personal stake" in the class certification claim. Determining Art. III's "uncertain and shifting contours," see Flast v. Cohen, 392 U.S. at 392 U. S. 97, with respect to nontraditional forms of litigation, such as the class action, requires reference to the purposes of the case or controversy requirement.Application of the personal stake requirement to a procedural claim, such as the right to represent a class, is not automatic or readily resolved. A "legally cognizable interest," as the Court described it in Powell v. McCormack, 395 U.S. at 395 U. S. 496, in the traditional sense rarely ever exists with respect to the class certification claim. [Footnote 8] The justifications that led to the development of the class action include the protection of Page 445 U. S. 403 the defendant from inconsistent obligations, the protection of the interests of absentees, the provision of a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims. See, e.g., Advisory Committee Notes on Fed.Rule Civ.Proc. 23, 28 U.S.C.App. pp. 427-429; Note, Developments in the Law, Class Actions, 89 Harv.L.Rev. 1318, 1321-1323, 1329-1330 (1976). Although the named representative receives certain benefits from the class nature of the action, some of which are regarded as desirable and others as less so, [Footnote 9] these benefits generally are byproducts of the class-action device. In order to achieve the primary benefits of class suits, the Federal Rules of Civil Procedure give the proposed class representative the right to have a class certified if the requirements of the Rules are met. This "right" is more analogous to the private attorney general concept than to the type of interest traditionally thought to satisfy the "personal stake" requirement. See Roper, ante at 445 U. S. 338.As noted above, the purpose of the "personal stake" requirement is to assure that the case is in a form capable of judicial resolution. The imperatives of a dispute capable of judicial resolution are sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions. Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 753-756; Baker v. Carr, 369 U.S. at 369 U. S. 204; Poe v. Ullman, 367 U.S. at 367 U. S. 503 (plurality opinion). We conclude that these elements can exist with respect to the class certification issue notwithstanding the fact that the named plaintiff's claim on the merits has expired. The question whether class certification is appropriate remains as a concrete, sharply presented Page 445 U. S. 404 issue. In Sosna v. Iowa, it was recognized that a named plaintiff whose claim on the merits expires after class certification may still adequately represent the class. Implicit in that decision was the determination that vigorous advocacy can be assured through means other than the traditional requirement of a "personal stake in the outcome." Respondent here continues vigorously to advocate his right to have a class certified.We therefore hold that an action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification has been denied. [Footnote 10] The proposed representative retains a "personal stake" in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal results in reversal of the class certification denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna.Our holding is limited to the appeal of the denial of the class certification motion. A named plaintiff whose claim expires may not continue to press the appeal on the merits until a class has been properly certified. See Roper, ante at 445 U. S. 336-337. If, on appeal, it is determined that class certification properly was denied, the claim on the merits must be dismissed a moot. [Footnote 11] Page 445 U. S. 405Our conclusion that the controversy here is not moot does not automatically establish that the named plaintiff is entitled to continue litigating the interests of the class."[I]t does Page 445 U. S. 406 shift the focus of examination from the elements of justiciability to the ability of the named representative to 'fairly and adequately protect the interests of the class.' Rule 23(a). Page 445 U. S. 407 Sosna v. Iowa, 419 U.S. at 419 U. S. 403. We hold only that a case or controversy still exists. The question of who is to represent the class is a separate issue. [Footnote 12]"We need not decide here whether Geraghty is a proper representative for the purpose of representing the class on the merits. No class as yet has been certified. Upon remand, the District Court can determine whether Geraghty may continue to press the class claims or whether another representative would be appropriate. We decide only that Geraghty was a proper representative for the purpose of appealing the ruling denying certification of the class that he initially defined. Thus, it was not improper for the Court of Appeals to consider whether the District Court should have granted class certification.VWe turn now to the question whether the Court of Appeals' decision on the District Court's class certification ruling was proper. Petitioners assert that the Court of Appeals erred in requiring the District Court to consider the possibility of certifying Page 445 U. S. 408 subclasses sua sponte. Petitioners strenuously contend that placing the burden of identifying and constructing subclasses on the trial court creates unmanageable difficulties. Brief for Petitioners 43-51. We feel that the Court of Appeals' decision here does not impose undue burdens on the district courts. Respondent had no real opportunity to request certification of subclasses after the class he proposed was rejected. The District Court denied class certification at the same time it rendered its adverse decision on the merits. Requesting subclass certification at that time would have been a futile act. The District Court was not about to invest effort in deciding the subclass question after it had ruled that no relief on the merits was available. The remand merely gives respondent the opportunity to perform his function in the adversary system. On remand, however, it is not the District Court that is to bear the burden of constructing subclasses. That burden is upon the respondent, and it is he who is required to submit proposals to the court. The court has no sua sponte obligation so to act. With this modification, the Court of Appeals' remand of the case for consideration of subclasses was a proper disposition.It would be inappropriate for this Court to reach the merits of this controversy in the present posture of the case. Our holding that the case is not moot extends only to the appeal of the class certification denial. If the District Court again denies class certification, and that decision is affirmed, the controversy on the merits will be moot. Furthermore, although the Court of Appeals commented upon the merits for the sole purpose of avoiding waste of judicial resources, it did not reach a final conclusion on the validity of the guidelines. Rather, it held only that summary judgment was improper, and remanded for further factual development. Given the interlocutory posture of the case before us, we must defer decision on the merits of respondent's case until after it is determined affirmatively that a class properly can be certified. Page 445 U. S. 409The 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 CourtUnited States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980)United States Parole Commission v. GeraghtyNo. 78-572Argued October 2, 1979Decided March 19, 1980445 U.S. 388SyllabusRespondent, after twice being denied parole from a federal prison, brought suit against petitioners in Federal District Court challenging the validity of the United States Parole Commission's Parole Release Guidelines. The District Court denied respondent's request for certification of the suit as a class action on behalf of a class of "all federal prisoners who are or who will become eligible for release on parole," and granted summary judgment for petitioners on the merits. Respondent was released from prison while his appeal to the Court of Appeals was pending, but that court held that this did not render the case moot, and went on to hold, with respect to the question whether the District Court had erroneously denied class certification, that class certification would not be inappropriate, since the problems of overbroad classes and of a potential conflict of interest between respondent and other members of the putative class could be remedied by the mechanism of subclasses. Accordingly, the Court of Appeals reversed the denial of class certification and remanded the case to the District Court for an initial evaluation sua sponte of the proper subclasses.Held: An action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification has been denied, since the proposed representative of the class retains a "personal stake" in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal from denial of the class certification results in reversal of the denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna v. Iowa, 419 U. S. 393, that mootness of the named plaintiff's individual claim after a class has been duly certified does not render the action moot. Pp. 445 U. S. 395-408.(a) The fact that a named plaintiff's substantive claims are mooted due to an occurrence other than a judgment on the merits, cf. Gerstein v. Pugh, 420 U. S. 103; Deposit Guaranty Nat. Bank v. Roper, ante p. 445 U. S. 326, does not mean that all other issues in the case are mooted. A plaintiff who brings a class action presents two separate issues, one Page 445 U. S. 389 being the claim on the merits and the other being the claim that he is entitled to represent a class. "The denial of class certification stands as an adjudication of one of the issues litigated," Roper, ante at 445 U. S. 336, and, in determining whether the plaintiff may continue to press the class certification claim after the claim on the merits "expires," the nature of the "personal stake" in the class certification claim must be examined. P. 445 U. S. 402.(b) The imperatives of a dispute capable of judicial resolution -- sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions -- can exist with respect to the class certification issue notwithstanding that the named plaintiff's claim on the merits has expired. Such imperatives are present in this case, where the question whether class certification is appropriate remains as a concrete, sharply presented issue and respondent continues vigorously to advocate his right to have a class certified. Pp. 445 U. S. 403-404.(c) Respondent was a proper representative for the purpose of appealing the ruling denying certification of the class that he initially defined, and hence it was not improper for the Court of Appeals to consider whether the District Court should have granted class certification. P. 445 U. S. 407.(d) The Court of Appeals' remand of the case for consideration of subclasses was a proper disposition, except that the burden of constructing subclasses is not upon the District Court, but upon the respondent. Pp. 445 U. S. 407-408.579 F.2d 238, vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 445 U. S. 409. Page 445 U. S. 390

1982_81-1891

CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented is whether employer contributions to union trust funds for health and welfare, pensions, and training are "wages" for the purpose of computing compensation benefits under § 2(13) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1425, 33 U.S.C. § 902(13) (Compensation Act).IJames Hilyer, an employee of petitioner Morrison-Knudsen Construction Co., was fatally injured while working on the construction of the District of Columbia Metrorail System. At the time of his death, Hilyer was covered by the District of Columbia Workmen's Compensation Act, D.C.Code § 36-501 (1973), which incorporates the provisions of the Compensation Act. He was also a beneficiary of a collective bargaining agreement between Morrison-Knudsen and his union, Local 456 of the Laborers' District Council of Washington, D.C. and Vicinity (AFL-CIO).Immediately upon Hilyer's death, petitioner [Footnote 1] began to pay 66 2/3% of Hilyer's "average weekly wage" in death benefits to his wife and two minor children pursuant to 33 U.S.C. § 909(b). [Footnote 2] Respondent Hilyer disputed the amount of benefits paid, claiming, among other things, that her husband's average weekly wage included not only his take-home pay, as Page 461 U. S. 627 petitioner contended, but also the 68 cents per hour in contributions the employer was required to make to union trust funds under the terms of the collective bargaining agreement. [Footnote 3] The Administrative Law Judge rejected Mrs. Hilyer's contention, and the Benefits Review Board affirmed. The Board reasoned that only values that are readily identifiable and calculable may be included in the determination of wages. Hilyer's rights in his union trust funds were speculative. It was not clear from the record whether his pension rights had vested, and even if they had, the value of his interest in the Page 461 U. S. 628 Pension and Disability Fund depended on his continued employment with petitioner, while the value of his interest in the health, welfare, and training funds was contingent on his need for these benefits. The Board also rejected the notion that the values could be computed from the amounts contributed by the employer, noting that the family, in all likelihood, would not have been able to purchase similar protection at the same cost.Mrs. Hilyer [Footnote 4] sought review of the Benefits Review Board's decision in the Court of Appeals for the District of Columbia Circuit, reiterating her contention that her husband's wages included the contributions that his employer made to the union trust funds. [Footnote 5] The Court of Appeals reversed. Page 461 U. S. 629 It agreed with the Board that the term "wages" includes only values that are readily identifiable and calculable, but held that the benefits at issue here met that definition. The court reasoned that, since the contributions were intended for the benefit of the workers, the trustees could be viewed as"no more than a channel; . . . a means by which the company provides life insurance, health insurance, retirement benefits, and career training for its employees."Hilyer v. Morrison-Knudsen Construction Co., 216 U.S.App.D.C. 50, 53, 670 F.2d 208, 211 (1981). Although the court conceded that the family would not be able to use the employer's contribution to purchase benefits of equivalent value, it relied on United States ex rel. Sherman v. Carter, 353 U. S. 210 (1957), for the proposition that the employer's contributions were a reasonable measurement of the value of the benefits to the employees.We granted certiorari, 459 U.S. 820 (1982), and we reverse.IIThis case involves the meaning of 33 U.S.C. § 902(13), a definitional section that was part of the Compensation Act in 1927, when it became law, and that has remained unchanged through 10 revisions of the Act. [Footnote 6] The section provides:"'Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer. "Page 461 U. S. 630AWe begin with the plain language of the Compensation Act. Since it is undisputed that the employers' contributions are not "money . . . recompensed" or "gratuities received . . . from others," the narrow question is whether these contributions are a "similar advantage" to "board, rent, housing, [or] lodging." We hold that they are not. Board, rent, housing, or lodging are benefits with a present value that can be readily converted into a cash equivalent on the basis of their market values.The present value of these trust funds is not, however, so easily converted into a cash equivalent. Respondent Hilyer urges us to calculate the value by reference to the employer's cost of maintaining these funds or to the value of the employee's expectation interests in them, but we do not believe that either approach is workable. The employer's cost is irrelevant in this context; it measures neither the employee's benefit nor his compensation. It does not measure the benefit to the employee, because his family could not take the 68 cents per hour earned by Mr. Hilyer to the open market to purchase private policies offering similar benefits to the group policies administered by the union's trustees. It does not measure compensation, because the collective bargaining agreement does not tie petitioner's costs to its workers' labors. To the contrary, the employee enjoys full advantage of the Training and Health and Welfare Funds as soon as he becomes a beneficiary of the collective bargaining agreement. App. 37-38 and 40. He derives benefit from the Pension and Disability Fund according to the "pension credits" he earns. These pension credits are not correlated to the amount of the employer's contribution; the employer pays benefits for every hour the employee works, while the employee earns credits only for the first 1,600 hours of work in a given year. Furthermore, although the employer is never refunded money that has been contributed, the employee can lose credit if he works less than 200 hours in a year or fails to earn credit for Page 461 U. S. 631 four years. Significantly, the employee loses all advantage if he leaves his employment before he attains age 40 and accumulates 10 credits. [Footnote 7] Id. at 49-68.Nor can the value of the funds be measured by the employee's expectation interest in them, for that interest is, at best, speculative. Employees have no voice in the administration of these plans, and thus have no control over the level of funding or the benefits provided. Furthermore, the value of each fund depends on factors that are unpredictable. The value to the Hilyer family of the Health and Welfare Fund depends on its need for the services the Fund provides; the value of the Pension and Disability Fund depends on whether Hilyer's interest vested, see n 7, supra. And the value of the Training Fund, which was established to insure "adequate trained manpower," see n 3, supra, and not for the benefit of the individual workers, is even more amorphous.United States ex rel. Sherman v. Carter, supra, is not to the contrary. That case concerned a claim under the Miller Act, 40 U.S.C. § 270a et seq., which requires a contractor working for the United States to furnish a surety bond to insure the payment of "sums justly due" employees. When the employer failed to contribute to the union trust funds as required by the employees' collective bargaining agreement, the union trustees sued the surety on the bond. The Court allowed the trustees to maintain their action, reasoning that "contributions were a part of the compensation for the work to be done by [the] employees." 353 U.S. at 353 U. S. 217-218. The Court did not, however, base its conclusion on the notion these contributions were included in wages. Indeed the Court specifically noted that the Miller Act "does not limit recovery on the statutory bond to wages.'" Id. at 353 U. S. 217. A far different situation obtains here, where the Compensation Act specifically limits benefits to the worker's "wages." See Page 461 U. S. 632 also United States v. Embassy Restaurant, Inc., 359 U. S. 29, 359 U. S. 35 (1959).BWe are aided in our interpretation of § 902(13) by the legislative history of the Compensation Act, its structure, and the consistent policies of the agency charged with its enforcement. That history provides abundant indication that Congress did not intend to include employer contributions to benefit plans within the concept of "wages."In 1927, when the Act was enacted, employer-funded fringe benefits were virtually unknown, see United States Bureau of Labor Statistics, Beneficial Activities of American Trade-Unions, Bull. No. 465, pp. 3-4 (Sept.1928); cf. S.Rep. No. 963, 88th Cong., 2d Sess., 1-2 (1964). Although the Act was amended several times in the ensuing years, including substantial revision in 1972, there is no evidence in the legislative history indicating that Congress seriously considered the possibility that fringe benefits should be taken into account in determining compensation under the Act. [Footnote 8] In comparison, over these same years, Congress has acted on several occasions to include fringe benefits in other statutory schemes, see, e.g., the Davis-Bacon Act, 40 U.S.C. § 276a et seq., which was amended in 1964 to bring the United States' wage practices "into conformity with modern wage Page 461 U. S. 633 payment practices." S.Rep. No. 963, supra, at 1. [Footnote 9] From this evidence that Congress was aware of the significant changes in compensation practices, its willingness to amend and enact legislation in view of these changes, and its failure to amend the Compensation Act in the same manner, we can only conclude that Congress did not intend this expanded definition of "wages." [Footnote 10]The structure of the Act lends further support for our conclusion; it uses the concept of wages in several ways: to determine disability and survivors' actual benefits, 33 U.S.C. §§ 908 and 909, and to calculate the minimum and maximum level of benefits, § 909(e) (survivors' benefits), § 906(b) (disability benefits). In the latter sense, the reference is to the "national average weekly wage." Since we have often stated that a word is presumed to have the same meaning in all subsections of the same statute, see Mohasco Corp. v. Silver, 447 U. S. 807, 447 U. S. 826 (1980), we would expect the term "wages" to maintain the same meaning throughout the Compensation Act. Accordingly, were we to accept respondent Hilyer's Page 461 U. S. 634 argument, we would also have to conclude that in determining the national average weekly wage, the Secretary of Labor is required to evaluate the benefit provisions of collective bargaining agreements throughout the Nation. Any attempt to make this determination on a national basis would involve deciding which benefits to include, a subject on which different branches of the Government differ, see Chen, The Growth of Fringe Benefits: Implications for Social Security, 104 Monthly Labor Review 3, 9, n. 6 (Nov.1981). [Footnote 11] It would also require deciding how the benefits should be evaluated. Evaluating benefits is not simple in "defined contribution" plans such as the one involved in this case; in "defined benefit" plans, where the employer's costs are actuarially determined to provide a certain level of services, the calculation is infinitely harder. See, e.g., the collective bargaining agreement between General Motors Corp. and the United Auto Workers, cited in App. F to Brief for National Council of Self-Insurers as Amicus Curiae 16a. Without clear indication from Congress that this approach with its attendant problems is required, we decline to adopt it.Finally, we note that, with the exception of the instant case, the Director of Workers' Compensation has consistently taken the position that fringe benefits are not includible in wages, see Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336 (CA9 1982), and letters filed by the Department of Labor in Levis v. Farmers Export Co., appeal pending, No. 81-4258 (CA5), and Waters v. Farmers Export Co., No. 81-4273 (same). See also U.S. Dept. of Labor, LS/HW Program Memorandum No. 32, June 17, 1968, reprinted in Page 461 U. S. 635 App. to Brief for American Insurance Association as Amicus Curiae 1a-4a. Prior to the Court of Appeals' decision in this case, the Benefits Review Board had uniformly rejected the argument pressed by respondent Hilyer. See, e.g., Waters v. Farmers Export Co., 14 BRBS 102 (1981); Freer v. Duncanson-Harrelson Co., 9 BRBS 888 (1979), rev'd in pertinent part and remanded sub nom. Duncanson-Harrelson Co. v. Director, OWCP, supra; Lawson v. Atlantic & Gulf Grain Stevedores Co., 6 BRBS 770 (1977); Collins v. Todd Shipyards Corp., 5 BRBS 334 (1977). Although not controlling, the consistent practice of the agencies charged with the enforcement and interpretation of the Act are entitled to deference. NLRB v. Hendricks County Rural Electric Membership Corp., 454 U. S. 170, 454 U. S. 189-190 (1981); E. I. du Pont de Nemours & Co. v. Collins, 432 U. S. 46, 432 U. S. 54-55 (1977). We discern nothing to suggest that Congress intended the phrase "wages" as used in § 902(13) to include employer contributions to fringe benefit plans.IIIRespondent Hilyer argues that, despite these clear indications to the contrary, the remedial policies underlying the Act authorize the agency and require us to expand the meaning of the term to reflect modern employment practices. It is argued that fringe benefits are advantageous to both the worker, who receives tax-free benefits that he otherwise would have to buy with after-tax dollars, and to the employer, who reduces payroll costs by providing his workers with services that they could not on their own purchase with equivalent dollars. Respondent Hilyer contends that the incentive to trade salary for benefits should not be diluted by failing to consider the value of the benefits in determining survivorship and disability rights.There is force to this argument, but a comprehensive statute such as this Act is not to be judicially expanded because of "recent trends." Potomac Electric Power Co. v. Director, OWCP, 449 U. S. 268, 449 U. S. 279 (1980). There we recognized that Page 461 U. S. 636 the Act was not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and their employers on the other. Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail. Id. at 449 U. S. 282, and n. 24; H.R.Rep. No. 1767, 69th Cong., 2d Sess., 19-20 (1927); cf. S.Rep. No. 92-1125, p. 5 (1972).Against this background, reinterpretation of the term "wages" would significantly alter the balance achieved by Congress. As noted above, employer-funded benefits were virtually unknown in 1927; as a result, employers have long calculated their compensation costs on the basis of their cash payroll. Since 1927, however, the proportion of costs attributable to fringe benefits has increased significantly. In 1950, these benefits constituted only 5% of compensation costs; their value increased to 10% by 1970, and is over 15% presently. Chen, supra, at 5. [Footnote 12] According to some projections, they could easily constitute more than one-third of labor costs by the middle of the next century, ibid. This shift in the relative value of take-home pay versus fringe benefits dramatically alters the cost factors upon which employers and their insurers have relied in ordering their affairs. If these reasonable expectations are to be altered, that is a task for Congress, J. W. Bateson Co. v. United States ex rel. Board of Trustees, 434 U. S. 586, 434 U. S. 593 (1978).An expanded definition of wages would also undermine the goal of providing prompt compensation to injured workers Page 461 U. S. 637 and their survivors. Under the Act as presently interpreted, more than 95% of all lost-time injuries are immediately compensated without recourse to the administrative process. In all but 0.1% of the cases, delays averaged less than 10 months. Report by the Comptroller General of the United States, Longshoremen's and Harbor Workers' Compensation Act Needs Amending 31, 41 (Apr.1982). [Footnote 13] This situation could well change drastically if every worker could challenge the manner in which his own wages were calculated or the basis used by the Secretary to determine the national average weekly wage. [Footnote 14]The language of this statute, Congress' failure to include other benefits that were common in 1972, when the statute was amended, the longstanding administrative interpretation of the Act, and the policies underlying it, all combine to support our conclusion that Congress did not intend to include employer contributions to union trust funds in the Act's term "wages." Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtMorrison-Knudsen v. Director, OWCP, 461 U.S. 624 (1983)Morrison-Knudsen Construction Co. v. Director,Office of Workers' Compensation ProgramsNo. 81-1891Argued March 21, 1983Decided May 24, 1983461 U.S. 624SyllabusSection 2(13) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) defines "wages" for the purpose of computing compensation benefits under the Act as meaning"the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer."An employee of petitioner construction company (employer) was fatally injured while working on the District of Columbia Metrorail System. At the time of his death, the employee was covered by the District of Columbia Workmen's Compensation Act, which incorporates the LHWCA, and he was also a beneficiary of a collective bargaining agreement between the employer and his union. The employer began to pay 66 2/3% of the employee's "average weekly wage" in death benefits to his widow and minor children pursuant to the LHWCA. The widow disputed the amount of the benefits, claiming that her husband's average weekly wage included not only his take-home pay but also the 68 cents per hour in contributions the employer was required to make to union trust funds under the collective bargaining agreement for health and welfare, pensions, and training. The Administrative Law Judge rejected the widow's claim, and the Benefits Review Board affirmed, holding that only values that are readily identifiable and calculable may be included in the determination of wages, and that the employee's rights in his union trust funds were too speculative to meet this definition. The Court of Appeals reversed, holding that the employer's contributions were a reasonable measurement of the value of the benefits to the employee.Held: Employer contributions to union trust funds are not included in the term "wages" as defined in § 2(13). Pp. 461 U. S. 629-637.(a) The contributions are not "money . . . recompensed" or "gratuities received . . . from others" nor are they a "similar advantage" to "board, rent, housing, [or] lodging." Board, rent, housing, or lodging are benefits with a present value that can readily be converted into a cash equivalent Page 461 U. S. 625 on the basis of their market values, whereas the present value of the trust funds is not so easily converted into a cash equivalent. The employer's cost of maintaining the funds is irrelevant in this context, since it measures neither the employee's benefit nor his compensation. Nor can the value of the funds be measured by the employee's expectation of interest in them, for that interest is, at best, speculative. Pp. 461 U. S. 630-632.(b) The legislative history of the LHWCA, its structure, and the consistent policies of the agency charged with its enforcement, all show that Congress did not intend to include employer contributions to union trust funds in the statutory definition of "wages." Pp. 461 U. S. 632-635.(c) A comprehensive statute such as the LHWCA is not to be judicially expanded because of "recent trends." To expand the meaning of the term "wages" to include employer contributions to union trust funds would significantly alter the balance achieved by Congress between the concerns of longshoremen and harbor workers, on the one hand, and their employers, on the other. Such an expanded definition would also undermine the goal of providing prompt compensation to injured workers and their survivors. Pp. 461 U. S. 635-637.216 U.S.App.D.C. 50, 670 F.2d 208, reversed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 461 U. S. 638. Page 461 U. S. 626

1957_415

MR. JUSTICE CLARK delivered the opinion of the Court.At issue here is the exclusive and plenary authority of the Interstate Commerce Commission to approve a transaction in which Pacific Greyhound Lines, a motor carrier subsidiary of the Greyhound Corporation, [Footnote 1] would transfer its operations in the San Francisco Bay area to Golden Gate Transit Lines, a subsidiary of Pacific Greyhound organized by it for that purpose. Pacific Greyhound would receive all Golden Gate capital stock in exchange for the operating rights, certain equipment, and an amount in cash. Appellants, two counties in the area and their respective commuter associations, opposed the transaction, and challenged the power of the Commission Page 356 U. S. 414 to authorize it, [Footnote 2] but the Commission asserted jurisdiction and, on certain terms and conditions, approved the plan on the merits. 65 M.C.C. 347. A three-judge District Court, in which appellants sought to set aside the order, held that the Commission had jurisdiction under § 5(2)(a) of the Interstate Commerce Act. [Footnote 3] 150 F. Supp. 619. In view of the importance of the jurisdictional question and its impact on federal-state relations, we noted probable jurisdiction. 355 U.S. 866 (1957). We conclude that the proposed transaction is beyond the scope of Commission power under § 5(2)(a). [Footnote 4]At the time of the application, Pacific Greyhound was a motor common carrier of passengers in seven western and southwestern States under certificates issued by the Page 356 U. S. 415 Interstate Commerce Commission. In combination with members of the Greyhound system and other lines, it provided joint through service to and from more distant areas of the country. In California, the extensive services of Pacific Greyhound included the operations in the San Francisco Bay area which are involved here. These routes are within 25 or 30 miles of the city, extending north into Marin County, east into Contra Costa County, and south on the Peninsula. Measured in terms of revenue, only 5.7% of the traffic is in interstate movement; 94.3% is intrastate, largely commuter.The corporate transaction for which Commission approval was sought was conceived in an environment of financial difficulties plaguing the Bay area operations. The service consistently was operated at a loss, and Pacific Greyhound to some extent blamed the ratemaking practices and policies of the California Public Utilities Commission. In proceedings for commutation rate increases over these routes, for example, the State Commission had held that Pacific Greyhound's applications should be determined in light of total revenues from all intrastate operations in California. Pacific Greyhound Lines, Fares, 50 Cal.P.U.C. 650. This the company deemed to be an unjustified subsidization of the local losses with profits from unrelated operations. [Footnote 5]The transfer in question admittedly was designed to escape, upon approval of the Interstate Commerce Commission, the practices and policies of the State Commission. Golden Gate was incorporated in 1953, but had Page 356 U. S. 416 engaged in no business activity and was not a carrier. Under the agreement, arrived at early in 1954, Pacific Greyhound would transfer to Golden Gate substantially all interstate and intrastate operating rights in the Bay area, $150,000 in cash, and certain equipment. [Footnote 6] Golden Gate would, in turn, issue all of its capital stock to Pacific Greyhound. The result is obvious: for ratemaking purposes before the State Commission, the deficit-ridden local operation, after the split-up of operating rights into separate corporations, would be forced to stand on its own -- or collapse.Although it did not formally intervene, the State Commission filed its views regarding the transaction with the Interstate Commerce Commission. It was stated that the proposed transfer of "local" operations was wholly unnecessary, would create questionable expense, and would tend to inject confusion into intrastate ratefixing. Further, the State Commission feared that Golden Gate's resulting capital structure would be of "questionable soundness."The Interstate Commerce Commission conditioned its approval of the proposal on an increase in the cash consideration to $250,000, after the hearing officer had recommended disapproval of the plan in its entirety.The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940, enacting § 5(2)(a) in its present form, was to facilitate merger and consolidation in the national transportation system. [Footnote 7] Page 356 U. S. 417 In the Transportation Act of 1920, the Congress had directed the Commission itself to take the initiative in developing a plan "for the consolidation of the railway properties of the continental United States into a limited number of systems," 41 Stat. 481, but, after 20 years of trial, the approach appeared inadequate. The Transportation Act of 1940 extended § 5 to motor and water carriers, and relieved the Commission of its responsibility to initiate the unifications."Instead, it authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness. . . ."(Emphasis added.) Schwabacher v. United States, 334 U. S. 182, 334 U. S. 193 (1948). In order to avoid the delays incident to approval by each State through which a company operated, the Congress provided for effectuation of Commission-approved plans "without invoking any approval under State authority." [Footnote 8] In short, the result of the Act was a change in the means, while the end remained the same. The very language of the amended "unification section" [Footnote 9] expresses clearly Page 356 U. S. 418 the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification. Subject to approval and authorization of the Commission, § 5(2)(a) makes lawful the consolidation or merger of two or more carriers; the purchase or lease of property, or acquisition of control, of one carrier by another; and the acquisition of control of a carrier by a noncarrier. [Footnote 10]In determining whether the Commission had jurisdiction in this case, we must examine the proposed transaction in light of the congressional purpose and statutory language. The Commission and the companies regard the transaction as an "acquisition" of Golden Gate by Pacific Greyhound, within the language of §5(2)(a) authorizing Commission approval ". . . for any carrier . . . to acquire control of another through ownership of its stock or otherwise." We think it is clear that this contemplates an acquisition by one carrier of another carrier. Golden Gate, a mere corporate shell without property or function, can by no stretch of the imagination be deemed a "carrier." Even if we look beyond Golden Gate's present status, however, and view the plan at its consummation, we find that the alleged "acquisition" amounts to little more than a paper transaction. In reality, the carriers propose a split-up -- something beyond the purpose and language of § 5(2)(a). The operating rights which now are solely those of Pacific Greyhound would be divided with Golden Gate; where now there is one carrier, there would be two. Pacific Greyhound's control would be dissipated, and its functions dismembered, in the hope of escaping certain practices of the State Commission.There may or may not, in fact, be financial or operational justification for the proposed transaction; that Page 356 U. S. 419 question is not before us. We consider only the applicability of § 5(2)(a) as a ground for Commission jurisdiction, and, in so doing, the question narrows to "the nature of the change in relations between the companies." Alleghany Corp. v. Breswick & Co., 353 U. S. 151, 353 U. S. 169 (1957). For reasons we have stated, the nature of that change here eliminates this transaction from the "acquisition" language of §5(2)(a).Our holding does not create a vacuum in regulation. In cases where the transaction is not within § 5, the Commission nevertheless may assert jurisdiction over the transfer of interstate operating rights under § 212(b) of the Act. [Footnote 11] Although the operations sought to be transferred here were predominantly suburban commuter in nature, they involved at least some traffic in interstate movement, serviced under certificates issued by the Interstate Commerce Commission; the transfer of these certificates must be Commission-approved. See Atwood's Transport Line -- Lease -- John A. Clarke, 52 M.C.C. 97, 105-108, where the Commission discussed the distinction between § 5 and § 212(b). The transfer of intrastate rights here will, of course, be subject to approval of the State Commission. Far from being a void in regulation, this will invoke the authority of the body most directly concerned with the local operation. This is not to say that the Interstate Commerce Commission could never have jurisdiction over the transfer of intrastate operating rights along with the interstate operations of a carrier. The test is whether the transaction comes within the terms of § 5(2)(a), authorizing the exercise of exclusive and plenary jurisdiction. Page 356 U. S. 420Finally, we are referred to certain cases in the Commission as evidence that prior administrative practice supports the sustaining of § 5(2)(a) jurisdiction here. Gehlhaus and Hollobinko -- Control, 60 M.C.C. 167; Takin -- Purchase -- Takin Bros. Freight Line, Inc., 37 M.C.C. 626; Consolidated Freightways, Inc. -- Control -- Consolidated Convoy Co., 36 M.C.C. 358; Columbia Motor Service Co. -- Purchase -- Columbia Terminals Co., 35 M.C.C. 531. While the interpretation given a statute by those charged with its application and enforcement is entitled to considerable weight, it hardly is conclusive. United States v. Missouri Pacific R. Co., 278 U. S. 269, 278 U. S. 280 (1929). The Commission practice as evidenced by these cases is, in our opinion, insufficient to outweigh the apparent congressional purpose and the clear language of the statute -- especially in this delicate area where the sustaining of federal jurisdiction leads, by statute, to the complete ouster of state authority. [Footnote 12]While the original application to the Commission for approval of the transaction is not a part of the record on appeal, it appears from the briefs that such application contained an alternative prayer for approval of the certificate transfers under § 212(b). Therefore, the judgment is reversed and the case is remanded for proceedings in conformity with this opinion.It is so ordered

U.S. Supreme CourtCounty of Marin v. United States, 356 U.S. 412 (1958)County of Marin v. United StatesNo. 415Argued April 9, 1958Decided May 19, 1958356 U.S. 412SyllabusAsserting exclusive and plenary authority under § 5(2)(a) of the Interstate Commerce Act, the Interstate Commerce Commission approved a proposed transaction in which an interstate motor carrier would transfer its operations in the San Francisco Bay area (largely local commuter service) to a non-carrier subsidiary organized for that purpose, in exchange for the capital stock of the subsidiary. The admitted purpose of the transaction was to escape the ratemaking practices and policies of the California Public Utilities Commission, which held that the carrier's applications for increases in rates in these local operations should be determined in the light of total revenues from all of its intrastate operations in California. Appellants sued to set aside the order of the Interstate Commerce Commission.Held: the proposed transaction is beyond the scope of the power of the Interstate Commerce Commission under § 5(2)(a). Pp. 356 U. S. 413-420.(a) The congressional purpose in the sweeping revision of § 5 of the Act in 1940, enacting § 5(2)(a) in its present form, was to facilitate mergers and consolidations in the national transportation system. Pp. 356 U. S. 416-418.(b) The proposed transaction does not involve the "acquisition" of any "carrier" within the meaning of §5(2)(a), because the subsidiary is not a "carrier." P. 356 U. S. 418.(c) Even if the plan were viewed at its consummation, when the subsidiary would become a "carrier," the proposal contemplates, in reality, a split-up -- something beyond the purpose and language of § 5(2)(a). P. 356 U. S. 418.(d) This holding does not create a vacuum in regulation, because the Interstate Commerce Commission would have jurisdiction over the transfer of interstate operating rights under § 212(b), and the transfer of intrastate right would be subject to the approval of the State Commission, the body most directly concerned with the local operations. P. 356 U. S. 419. Page 356 U. S. 413(e) That it may have been the prior administrative practice of the Interstate Commerce Commission to exercise jurisdiction under § 5(2)(a) in similar cases is insufficient to outweigh the apparent congressional purpose and the clear language of the statute -- especially in this delicate area, where the sustaining of federal jurisdiction leads, by statute, to the complete ouster of state authority. P. 356 U. S. 420.150 F. Supp. 619 reversed and cause remanded.

1995_95-345

there is no requirement in the statutes at issue that the Government demonstrate scienter in order to establish that the property is subject to forfeiture; (3) though both statutes may serve a deterrent purpose, this purpose may serve civil as well as criminal goals; and (4) the fact that both are tied to criminal activity is insufficient in itself to render them punitive. See, e. g., United States v. Ward, 448 U. S. 242, 247-248, n. 7,249. Pp.288-292.No. 95-345, 59 F.3d 568, and No. 95-346, 33 F.3d 1210 and 56 F.3d 41, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 292. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 297. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 297.Michael R. Dreeben argued the cause for the United States in both cases. With him on the briefs were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, Kathleen A. Felton, and Joseph Douglas Wilson.Jeffry K. Finer argued the cause for respondents in No. 95-346. With him on the briefs were Jeffrey Steinborn, David Michael, and E. E. Edwards III.Lawrence S. Robbins argued the cause for respondent in No. 95-345. With him on the brief were Donald M. Falk and Lawrence J. Emery, by appointment of the Court, 516 U. S. l109.ttBriefs of amici curiae urging reversal were filed for the State of Connecticut et al. by John M. Bailey, Chief State's Attorney of Connecticut, and Mary H. Lesser, Assistant State's Attorney, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Pamela Carter of Indiana, Tom Miller of Iowa, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky,270CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In separate cases, the United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Ninth Circuit held that the Double Jeopardy Clause prohibits the Government from both punishing a defendant for a criminal offense and forfeiting his property for that same offense in a separate civil proceeding. We consolidated those cases for our review, and now reverse. These civil forfeitures (and civil forfeitures generally), we hold, doRichard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, Drew Edmondson of Oklahoma, Theodore R. Kulongoski of Oregon, Thomas W Corbett, Jr., of Pennsylvania, Pedro R. Pierluisi of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Charles W Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Christine O. Gregoire of Washington, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; for the County of San Bernardino, California, et al. by Dennis L. Stout, Dee R. Edgeworth, Michael J. Yraceburn, Phillip R. Urie, and Armando G. Cuellar, Jr.; for the Cook County State's Attorney's Office et al. by Jack O'Malley, Renee Goldfarb, and Janet Powers Doyle; and for the Thirty-nine Counties of the State of Washington by Norm Maleng, Barbara A. Mack, David Bruneau, Arthur Curtis, Allen C. Nielson, Russ Hauge, Jeremy Randolf, John Ladenburg, Jim Sweetser, James L. Nagle, and Jeffrey C. Sullivan.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Susan N. Herman, Gerard E. Lynch, and Steven R. Shapiro; 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; for the National Association of Criminal Defense Lawyers by Richard J. Troberman and David B. Smith; and for Advocates for Highway and Auto Safety et al. by Henry M. Jasny.271not constitute "punishment" for purposes of the Double Jeopardy Clause.INo. 95-345: Michigan Police found marijuana growing adjacent to respondent Guy Ursery's house, and discovered marijuana seeds, stems, stalks, and a grow light within the house. The United States instituted civil forfeiture proceedings against the house, alleging that the property was subject to forfeiture under 84 Stat. 1276, as amended, 21 U. S. C. § 881(a)(7), because it had been used for several years to facilitate the unlawful processing and distribution of a controlled substance. Ursery ultimately paid the United States $13,250 to settle the forfeiture claim in full. Shortly before the settlement was consummated, Ursery was indicted for manufacturing marijuana, in violation of § 841(a)(1). A jury found him guilty, and he was sentenced to 63 months in prison.The Court of Appeals for the Sixth Circuit by a divided vote reversed Ursery's criminal conviction, holding that the conviction violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. 59 F.3d 568 (1995). The court based its conclusion in part upon its belief that our decisions in United States v. Halper, 490 U. S. 435 (1989), and Austin v. United States, 509 U. S. 602 (1993), meant that any civil forfeiture under § 881(a)(7) constitutes punishment for purposes of the Double Jeopardy Clause. Ursery, in the court's view, had therefore been "punished" in the forfeiture proceeding against his property, and could not be subsequently criminally tried for violation of 21 U. S. C. § 841(a)(1).No. 95-346: Following a jury trial, Charles Wesley Arlt and James Wren were convicted of: conspiracy to aid and abet the manufacture of methamphetamine, in violation of 21 U. S. C. § 846; conspiracy to launder monetary instruments, in violation of 18 U. S. C. § 371; and numerous counts of money laundering, in violation of § 1956. The District Court272sentenced Arlt to life in prison and a 10-year term of supervised release, and imposed a fine of $250,000. Wren was sentenced to life imprisonment and a 5-year term of supervised release.Before the criminal trial had started, the United States had filed a civil in rem complaint against various property seized from, or titled to, Arlt and Wren, or Payback Mines, a corporation controlled by Arlt. The complaint alleged that each piece of property was subject to forfeiture both under 18 U. S. C. § 981(a)(1)(A), which provides that "[a]ny property ... involved in a transaction or attempted transaction in violation of" § 1956 (the money-laundering statute) "is subject to forfeiture to the United States"; and under 21 U. S. C. § 881(a)(6), which provides for the forfeiture of (i) "[a]ll ... things of value furnished or intended to be furnished by any person in exchange for" illegal drugs, (ii) "all proceeds traceable to such an exchange," and (iii) "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The parties agreed to defer litigation of the forfeiture action during the criminal prosecution. More than a year after the conclusion of the criminal trial, the District Court granted the Government's motion for summary judgment in the civil forfeiture proceeding.Arlt and Wren appealed the decision in the forfeiture action, and the Court of Appeals for the Ninth Circuit reversed, holding that the forfeiture violated the Double Jeopardy Clause. 33 F.3d 1210 (1994), amended 56 F.3d 41 (1995). The court's decision was based in part upon the same view as that expressed by the Court of Appeals for the Sixth Circuit in Ursery's case-that our decisions in Halper, supra, and Austin, supra, meant that, as a categorical matter, forfeitures under §§ 981(a)(1)(A) and 881(a)(6) always constitute "punishment."We granted the Government's petition for certiorari in each of the two cases, and we now reverse. 516 U. S. 1070 (1996).273IIThe Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U. S. Const., Arndt. 5. The Clause serves the function of preventing both "successive punishments and ... successive prosecutions." United States v. Dixon, 509 U. S. 688, 696 (1993), citing North Carolina v. Pearce, 395 U. S. 711 (1969). The protection against multiple punishments prohibits the Government from" 'punishing twice, or attempting a second time to punish criminally for the same offense.'" Witte v. United States, 515 U. S. 389, 396 (1995) (emphasis deleted), quoting Helvering v. Mitchell, 303 U. S. 391, 399 (1938).In the decisions that we review, the Courts of Appeals held that the civil forfeitures constituted "punishment," making them subject to the prohibitions of the Double Jeopardy Clause. The Government challenges that characterization of the forfeitures, arguing that the courts were wrong to conclude that civil forfeitures are punitive for double jeopardy purposes.11 The Government raises three other challenges to the decisions that we review. First, focusing on the decision of the Court of Appeals for the Sixth Circuit in No. 95-345, the Government contends that the Double Jeopardy Clause applies only to prohibit a punishment imposed following a "jeopardy," and that a civil forfeiture, regardless whether it is a "punishment," is not a "jeopardy." Thus, because Ursery had not been placed in "jeopardy" in the civil forfeiture proceeding against his house, the Double Jeopardy Clause was inapplicable to his criminal prosecution. Second, the Government argues that the civil forfeiture of property is not the same offense as a criminal prosecution, and therefore that the double jeopardy protection against multiple punishments for the same offense is not at issue here. Finally, the Government argues that a civil forfeiture action that is parallel and contemporaneous with a criminal prosecution should be deemed to constitute a single proceeding within the meaning of the Double Jeopardy Clause.Because we conclude that the civil forfeitures involved in these cases do not constitute punishment under the Double Jeopardy Clause, see infra, at 292, we do not address those three arguments in this opinion.274ASince the earliest years of this Nation, Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events. See, e. g., Act of July 31, 1789, ch. 5, § 12, 1 Stat. 39 (goods unloaded at night or without a permit subject to forfeiture and persons unloading subject to criminal prosecution); § 25, id., at 43 (persons convicted of buying or concealing illegally imported goods subject to both monetary fine and in rem forfeiture of the goods); § 34, id., at 46 (imposing criminal penalty and in rem forfeiture where person convicted of relanding goods entitled to drawback); see also The Palmyra, 12 Wheat. 1, 14-15 (1827) ("Many cases exist, where there is both a forfeiture in rem and a personal penalty"); cf. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 683 (1974) (discussing adoption of forfeiture statutes by early Congresses). And, in a long line of cases, this Court has considered the application of the Double Jeopardy Clause to civil forfeitures, consistently concluding that the Clause does not apply to such actions because they do not impose punishment.One of the first cases to consider the relationship between the Double Jeopardy Clause and civil forfeiture was Various Items of Personal Property v. United States, 282 U. S. 577 (1931). In Various Items, the Waterloo Distilling Corporation had been ordered to forfeit a distillery, warehouse, and denaturing plant, on the ground that the corporation had conducted its distilling business in violation of federal law. The Government conceded that the corporation had been convicted of criminal violations prior to the initiation of the forfeiture proceeding, and admitted that the criminal conviction had been based upon "the transactions set forth ... as a basis for the forfeiture." Id., at 579. Considering the corporation's argument that the forfeiture action violated the Double Jeopardy Clause, this Court unanimously held that the Clause was inapplicable to civil forfeiture actions:275"[This] forfeiture proceeding ... is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted, and punished. The forfeiture is no part of the punishment for the criminal offense. The provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply." Id., at 581 (citations omitted; emphasis added).In reaching its conclusion, the Court drew a sharp distinction between in rem civil forfeitures and in personam civil penalties such as fines: Though the latter could, in some circumstances, be punitive, the former could not. Ibid. Referring to a case that was decided the same day as Various Items, the Court made its point absolutely clear:"In United States v. La Franca, [282 U. S.] 568, we hold that, under § 5 of the Willis-Campbell Act, a civil action to recover taxes, which in fact are penalties, is punitive in character and barred by a prior conviction of the defendant for a criminal offense involving the same transactions. This, however, is not that case, but a proceeding in rem to forfeit property used in committing an offense." Id., at 580.Had the Court in Various Items found that a civil forfeiture could constitute a "punishment" under the Fifth Amendment, its holding would have been quite remarkable. As that Court recognized, "[a]t common law, in many cases, the right of forfeiture did not attach until the offending person had been convicted and the record of conviction produced." Ibid. In other words, at common law, not only was it the case that a criminal conviction did not bar a civil forfeiture, but, in fact, the civil forfeiture could not be instituted unless a criminal conviction had already been obtained. Though this Court had held that common-law rule inapplicable where276the right of forfeiture was "created by statute, in rem, cognizable on the revenue side of the exchequer," The Palmyra, supra, at 14, it never had suggested that the Constitution prohibited for statutory civil forfeiture what was required for common-law civil forfeiture. For the Various Items Court to have held that the forfeiture was prohibited by the prior criminal proceeding would have been directly contrary to the common-law rule, and would have called into question the constitutionality of forfeiture statutes thought constitutional for over a century. See United States v. CurtissWright Export Corp., 299 U. S. 304, 327-328 (1936) (Evidence of a longstanding legislative practice "goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice").Following its decision in Various Items, the Court did not consider another double jeopardy case involving a civil forfeiture for 40 years. Then, in One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972) (per curiam), the Court's brief opinion reaffirmed the rule of Various Items. In Emerald Cut Stones, after having been acquitted of smuggling jewels into the United States, the owner of the jewels intervened in a proceeding to forfeit them as contraband. We rejected the owner's double jeopardy challenge to the forfeiture, holding that "[i]f for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments." 409 U. S., at 235. Noting that the forfeiture provisions had been codified separately from parallel criminal provisions, the Court determined that the forfeiture clearly was "a civil sanction." Id., at 236. The forfeitures were not criminal punishments because they did not impose a second in personam penalty for the criminal defendant's wrongdoing.In our most recent decision considering whether a civil forfeiture constitutes punishment under the Double Jeopardy Clause, we again affirmed the rule of Various Items. In277United States v. One Assortment of 89 Firearms, 465 U. S. 354 (1984), the owner of the defendant weapons was acquitted of charges of dealing firearms without a license. The Government then brought a forfeiture action against the firearms under 18 U. S. C. § 924(d), alleging that they were used or were intended to be used in violation of federal law.In another unanimous decision, we held that the forfeiture was not barred by the prior criminal proceeding. We began our analysis by stating the rule for our decision:"Unless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. The question, then, is whether a § 924(d) forfeiture proceeding is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial." 89 Firearms, supra, at 362 (citations omitted).Our inquiry proceeded in two stages. In the first stage, we looked to Congress' intent, and concluded that "Congress designed forfeiture under § 924(d) as a remedial civil sanction." 465 U. S., at 363. This conclusion was based upon several findings. First, noting that the forfeiture proceeding was in rem, we found it significant that "[a]ctions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object." Ibid., citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S., at 684. Second, we found that the forfeiture provision, because it reached both weapons used in violation of federal law and those "intended to be used" in such a manner, reached a broader range of conduct than its criminal analog. Third, we concluded that the civil forfeiture "further[ed] broad remedial aims," including both "discouraging unregulated commerce in firearms" and "removing from circulation firearms that have been used or intended for use outside regulated channels of commerce." 89 Firearms, supra, at 364.278In the second stage of our analysis, we looked to " 'whether the statutory scheme was so punitive either in purpose or effect as to negate' Congress' intention to establish a civil remedial mechanism," 465 U. S., at 365, quoting United States v. Ward, 448 U. S. 242, 248-249 (1980). Considering several factors that we had used previously in order to determine whether a civil proceeding was so punitive as to require application of the full panoply of constitutional protections required in a criminal trial, see id., at 248, we found only one of those factors to be present in the § 924(d) forfeiture. By itself, however, the fact that the behavior proscribed by the forfeiture was already a crime proved insufficient to turn the forfeiture into a punishment subject to the Double Jeopardy Clause. Hence, we found that the gun owner had "failed to establish by the 'clearest proof' that Congress has provided a sanction so punitive as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" 89 Firearms, supra, at 366, quoting Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956). We concluded our decision by restating that civil forfeiture is "not an additional penalty for the commission of a criminal act, but rather is a separate civil sanction, remedial in nature." 89 Firearms, supra, at 366.BOur cases reviewing civil forfeitures under the Double Jeopardy Clause adhere to a remarkably consistent theme. Though the two-part analytical construct employed in 89 Firearms was more refined, perhaps, than that we had used over 50 years earlier in Various Items, the conclusion was the same in each case: In rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause. See Gore v. United States, 357 U. S. 386, 392 (1958) ("In applying a provision like that of double jeopardy, which is rooted in history279and is not an evolving concept ... , a long course of adjudication in this Court carries impressive authority").In the cases that we currently review, the Court of Appeals for the Ninth Circuit recognized as much, concluding that after 89 Firearms, "the law was clear that civil forfeitures did not constitute 'punishment' for double jeopardy purposes." 33 F. 3d, at 1218. Nevertheless, that court read three of our decisions to have "abandoned" 89 Firearms and the oft-affirmed rule of Various Items. According to the Court of Appeals for the Ninth Circuit, through our decisions in United States v. Halper, 490 U. S. 435 (1989), Austin v. United States, 509 U. S. 602 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), we "changed [our] collective mind," and "adopted a new test for determining whether a nominally civil sanction constitutes 'punishment' for double jeopardy purposes." 33 F. 3d, at 1218-1219. The Court of Appeals for the Sixth Circuit shared the view of the Ninth Circuit, though it did not directly rely upon Kurth Ranch. We turn now to consider whether Halper, Austin, and Kurth Ranch accomplished the radical jurisprudential shift perceived by the Courts of Appeals.In Halper, we considered "whether and under what circumstances a civil penalty may constitute 'punishment' for the purposes of double jeopardy analysis." Halper, supra, at 436. Based upon his submission of 65 inflated Medicare claims, each of which overcharged the Government by $9, Halper was criminally convicted of 65 counts of violating the false-claims statute, 18 U. S. C. § 287 (1982 ed.), as well as of 16 counts of mail fraud, and was sentenced to two years in prison and fined $5,000. Following that criminal conviction, the Government successfully brought a civil action against Halper under 31 U. S. C. § 3729 (1982 ed. and Supp. II). The District Court hearing the civil action determined that Halper was liable to the Government for over $130,000 under § 3729, which then provided for liability in the amount of280$2,000 per violation, double the Government's actual damages, and court costs. The court concluded that imposing the full civil penalty would constitute a second punishment for Halper's already-punished criminal offense, however, and therefore reduced Halper's liability to double the actual damages suffered by the Government and the costs of the civil action. The Government directly appealed that decision to this Court.This Court agreed with the District Court's analysis. We determined that our precedent had established no absolute and irrebuttable rule that a civil fine cannot be "punishment" under the Double Jeopardy Clause. Though it was well established that "a civil remedy does not rise to the level of 'punishment' merely because Congress provided for civil recovery in excess of the Government's actual damages," we found that our case law did "not foreclose the possibility that in a particular case a civil penalty ... may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment." 490 U. S., at 442. Emphasizing the case-specific nature of our inquiry, id., at 448, we compared the size of the fine imposed on Halper, $130,000, to the damages actually suffered by the Government as a result of Halper's actions, estimated by the District Court at $585. Noting that the fine was more than 220 times greater than the Government's damages, we agreed with the District Court that "Halper's $130,000 liability is sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy." Id., at 452. We remanded to the District Court so that it could hear evidence regarding the Government's actual damages, and could then reduce Halper's liability to a nonpunitive level. Ibid.In Austin, we considered whether a civil forfeiture could violate the Excessive Fines Clause of the Eighth Amendment to the Constitution, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed .... " Aware that Austin had sold two grams of cocaine the pre-281vious day, police searched his mobile home and body shop. Their search revealed small amounts of marijuana and cocaine, a handgun, drug paraphernalia, and almost $5,000 in cash. Austin was charged with one count of possessing cocaine with intent to distribute, to which he pleaded guilty. The Government then initiated a civil forfeiture proceeding against Austin's mobile home and auto shop, contending that they had been "used" or were "intended for use" in the commission of a drug offense. See 21 U. S. C. §§881(a)(4) and (a)(7). Austin contested the forfeiture on the ground of the Excessive Fines Clause, but the District Court and the Court of Appeals held the forfeiture constitutional.We limited our review to the question "whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U. S. C. §§ 881(a)(4) and (a)(7)." Austin, supra, at 604. We began our analysis by rejecting the argument that the Excessive Fines Clause was limited solely to criminal proceedings: The relevant question was not whether a particular proceeding was criminal or civil, we determined, but rather was whether forfeiture under §§ 881 (a)(4) and (a)(7) constituted "punishment" for the purposes of the Eighth Amendment. Austin, supra, at 610. In an effort to answer that question, we briefly reviewed the history of civil forfeiture both in this country and in England, see 509 U. S., at 611-618, taking a categorical approach that contrasted sharply with Halper's case-specific approach to determining whether a civil penalty constitutes punishment. Ultimately, we concluded that "forfeiture under [§§ 881(a)(4) and (a)(7)] constitutes 'payment to a sovereign as punishment for some offense,' and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause." 509 U. S., at 622 (citation omitted).In Department of Revenue of Mont. v. Kurth Ranch, supra, we considered whether a state tax imposed on marijuana was invalid under the Double Jeopardy Clause when the taxpayer had already been criminally convicted of own-282ing the marijuana that was taxed. We first established that the fact that Montana had labeled the civil sanction a "tax" did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: Thus, only a person charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a " 'penal and prohibitory intent rather than the gathering of revenue.'" Id., at 781. Concluding that the Montana tax proceeding "was the functional equivalent of a successive criminal prosecution," we affirmed the Court of Appeals' judgment barring the tax. Id., at 784.We think that the Court of Appeals for the Sixth Circuit and the Court of Appeals for the Ninth Circuit misread Halper, Austin, and Kurth Ranch. None of those decisions purported to overrule the well-established teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Halper involved not a civil forfeiture, but a civil penalty. That its rule was limited to the latter context is clear from the decision itself, from the historical distinction that we have drawn between civil forfeiture and civil penalties, and from the practical difficulty of applying Halper to a civil forfeiture.In Halper, we emphasized that our decision was limited tothe context of civil penalties:"What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a283defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as 'punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment." 490 U. S., at 449-450 (emphasis added).The narrow focus of Halper followed from the distinction that we have drawn historically between civil forfeiture and civil penalties. Since at least Various Items, we have distinguished civil penalties such as fines from civil forfeiture proceedings that are in rem. While a "civil action to recover ... penaltie[s] is punitive in character," and much like a criminal prosecution in that "it is the wrongdoer in person who is proceeded against ... and punished," in an in rem forfeiture proceeding, "[i]t is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned." Various Items, 282 U. S., at 580-581. Thus, though for double jeopardy purposes we have never balanced the value of property forfeited in a particular case against the harm suffered by the Government in that case, we have balanced the size of a particular civil penalty against the Government's harm. See, e. g., Rex Trailer Co. v. United States, 350 U. S., at 154 (fines not "so unreasonable or excessive" as to transform a civil remedy into a criminal penalty); United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943) (fine of $315,000 not so disproportionate to Government's harm of $101,500 as to transform the fine into punishment). Indeed, the rule set forth in Halper developed from the teaching of Rex Trailer and Hess. See Halper, supra, at 445-447.It is difficult to see how the rule of Halper could be applied to a civil forfeiture. Civil penalties are designed as a rough form of "liquidated damages" for the harms suffered by the284Government as a result of a defendant's conduct. See Rex Trailer, supra, at 153-154. The civil penalty involved in Halper, for example, provided for a fixed monetary penalty for each false claim count on which the defendant was convicted in the criminal proceeding. Whether a "fixed-penalty provision" that seeks to compensate the Government for harm it has suffered is "so extreme" and "so divorced" from the penalty's nonpunitive purpose of compensating the Government as to be a punishment may be determined by balancing the Government's harm against the size of the penalty. Civil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government. Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. Though it may be possible to quantify the value of the property forfeited, it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture. Hence, it is practically difficult to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture. Quite simply, the case-by-case balancing test set forth in Halper, in which a court must compare the harm suffered by the Government against the size of the penalty imposed, is inapplicable to civil forfeiture.22JUSTICE STEVENS' dissent is grounded in the different interpretation that he gives Halper. He finds that Halper announced "two different rules"; a general rule, applicable to all civil sanctions, useful for determining whether a sanction is "of a punitive character"; and a "narrower rule," similar to our understanding of the case, that requires "an accounting of the Government's damages and costs." Post, at 308. JUSTICE STEVENS faults us in these cases for failing to apply the "general rule" of Halper.The problem with JUSTICE STEVENS' interpretation of Halper, of course, and therefore with his entire argument, is that Halper did not announce two rules. Nowhere in Halper does the Court set forth two distinct rules or purport to apply a two-step analysis. JUSTICE STEVENS finds his "general rule" in a dictum from Halper: "'[A] civil sanction that285We recognized as much in Kurth Ranch. In that case, the Court expressly disclaimed reliance upon Halper, finding that its case-specific approach was impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana marijuana tax, we held that because "taxcannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.''' Post, at 306, quoting United States v. Halper, 490 U. S. 435, 448 (1989). But the discussion immediately following that dictum makes clear that it states not a new and separate test for whether a sanction is a punishment, but rather only a rephrasing of JUSTICE STEVENS' "narrower" rule, i. e., the rule requiring an "accounting of the Government's damages and costs." Id., at 449."We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished ... may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution."We acknowledge that this inquiry will not be an exact pursuit. In our decided cases we have noted that the precise amount of the Government's damages and costs may prove to be difficult, if not impossible, to ascertain . . . . [I]t would be difficult if not impossible in many cases for a court to determine the precise dollar figure at which a civil sanction has accomplished its remedial purpose of making the Government whole, but beyond which the sanction takes on the quality of punishment." Id., at 448-449 (emphasis added); see also id., at 449-451.The "general rule" discovered by JUSTICE STEVENS in Halper would supplant, not mimic, see post, at 306, the rule of United States v. One Assortment of 89 Firearms, 465 U. S. 354 (1984), and One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972). Whether a particular sanction "cannot fairly be said solely to serve a remedial purpose" is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision. Halper, supra, at 449 (announcing rule for "the rare case"). If the "general rule" of JUSTICE STEVENS were applied literally, then virtually every sanction would be declared to be a punishment: It is hard to imagine a sanction that has no punitive aspect whatsoever. JUSTICE STEVENS' interpretation of Halper is both contrary to the decision itself and would create an unworkable rule inconsistent with well-established precedent.286statutes serve a purpose quite different from civil penalties, ... Halper's method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute." Kurth Ranch, 511 U. S., at 784 (internal quotation marks omitted); see also id., at 786 (REHNQUIST, C. J., dissenting) (Halper inapplicable outside of "'fixedpenalty provision[sJ''' that are meant "to recover the costs incurred by the Government for bringing someone to book for some violation of law"). This is not to say that there is no occasion for analysis of the Government's harm. 89 Firearms makes clear the relevance of an evaluation of the harms alleged. The point is simply that Halper's casespecific approach is inapplicable to civil forfeitures.In the cases that we review, the Courts of Appeals did not find Halper difficult to apply to civil forfeiture because they concluded that its case-by-case balancing approach had been supplanted in Austin by a categorical approach that found a civil sanction to be punitive if it could not "fairly be said solely to serve a remedial purpose." See Austin, 509 U. S., at 610; see also Halper, 490 U. S., at 448. But Austin, it must be remembered, did not involve the Double Jeopardy Clause at all. Austin was decided solely under the Excessive Fines Clause of the Eighth Amendment, a constitutional provision which we never have understood as parallel to, or even related to, the Double Jeopardy Clause of the Fifth Amendment. The only discussion of the Double Jeopardy Clause contained in Austin appears in a footnote that acknowledges our decisions holding that "[t]he Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings ... where the forfeiture could properly be characterized as remedial." Austin, supra, at 608, n. 4. And in Austin we expressly recognized and approved our decisions in One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972), and United States v. One Assortment of 89 Firearms, 465 U. S. 354 (1984). See Austin, supra, at 608, n. 4.287We acknowledged in Austin that our categorical approach under the Excessive Fines Clause was wholly distinct from the case-by-case approach of Halper, and we explained that the difference in approach was based in a significant difference between the purposes of our analysis under each constitutional provision. See Austin, supra, at 622, n. 14. It is unnecessary in a case under the Excessive Fines Clause to inquire at a preliminary stage whether the civil sanction imposed in that particular case is totally inconsistent with any remedial goal. Because the second stage of inquiry under the Excessive Fines Clause asks whether the particular sanction in question is so large as to be "excessive," see Austin, 509 U. S., at 622-623 (declining to establish criteria for excessiveness), a preliminary-stage inquiry that focused on the disproportionality of a particular sanction would be duplicative of the excessiveness analysis that would follow. See id., at 622, n. 14 ("[I]t appears to make little practical difference whether the Excessive Fines Clause applies to all forfeitures ... or only to those that cannot be characterized as purely remedial," because the Excessive Fines Clause "prohibits only the imposition of 'excessive' fines, and a fine that serves purely remedial purposes cannot be considered 'excessive' in any event"). Forfeitures effected under 21 U. S. C. §§ 881(a)(4) and (a)(7) are subject to review for excessiveness under the Eighth Amendment after Austin; this does not mean, however, that those forfeitures are so punitive as to constitute punishment for the purposes of double jeopardy. The holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.In sum, nothing in Halper, Kurth Ranch, or Austin purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause. Congress long has authorized the Government to bring parallel criminal proceedings and civil288forfeiture proceedings, and this Court consistently has found civil forfeitures not to constitute punishment under the Double Jeopardy Clause. It would have been quite remarkable for this Court both to have held unconstitutional a wellestablished practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause. None of those cases dealt with the subject of these cases: in rem civil forfeitures for purposes of the Double Jeopardy Clause.CWe turn now to consider the forfeitures in these cases under the teaching of Various Items, Emerald Cut Stones, and 89 Firearms. Because it provides a useful analytical tool, we conduct our inquiry within the framework of the two-part test used in 89 Firearms. First, we ask whether Congress intended proceedings under 21 U. S. C. § 881 and 18 U. S. C. § 981 to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to "persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature," despite Congress' intent. 465 U. S., at 366.There is little doubt that Congress intended these forfeitures to be civil proceedings. As was the case in 89 Firearms, "Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms it established for enforcing forfeitures under the statute[s]." Id., at 363. Both 21 U. S. C. § 881 and 18 U. S. C. § 981, which is entitled "Civil forfeiture," provide that the laws "relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws ... shall apply to seizures and forfeitures incurred" under §§ 881 and 981. See 21 U. S. C. § 881(d); 18 u. S. C. § 981(d). Because forfeit-289ure proceedings under the customs laws are in rem, see 19 U. S. C. § 1602 et seq., it is clear that Congress intended that a forfeiture under § 881 or § 981, like the forfeiture reviewed in 89 Firearms, would be a proceeding in rem. Congress specifically structured these forfeitures to be impersonal by targeting the property itself. "In contrast to the in personam nature of criminal actions, actions in rem have traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object." 89 Firearms, supra, at 363, citing Calero-Toledo, 416 U. S., at 684.Other procedural mechanisms governing forfeitures under §§ 881 and 981 also indicate that Congress intended such proceedings to be civil. Forfeitures under either statute are governed by 19 U. S. C. § 1607, which provides that actual notice of the impending forfeiture is unnecessary when the Government cannot identify any party with an interest in the seized article, and by § 1609, which provides that seized property is subject to forfeiture through a summary administrative procedure if no party files a claim to the property. And 19 U. S. C. § 1615, which governs the burden of proof in forfeiture proceedings under §§ 881 and 981, provides that once the Government has shown probable cause that the property is subject to forfeiture, then "the burden of proof shall lie upon [the] claimant." In sum, "[b]y creating such distinctly civil procedures for forfeitures under [§§ 881 and 981], Congress has 'indicate[d] clearly that it intended a civil, not a criminal sanction.''' 89 Firearms, supra, at 363, quoting Helvering v. Mitchell, 303 U. S. 391, 402 (1938).33JUSTICE STEVENS mischaracterizes our holding. We do not hold that in rem civil forfeiture is per se exempt from the scope of the Double Jeopardy Clause. See post, at 300-305. Similarly, we do not rest our conclusion in these cases upon the long-recognized fiction that a forfeiture in rem punishes only malfeasant property rather than a particular person. See post, at 313-316. That a forfeiture is designated as civil by Congress and proceeds in rem establishes a presumption that it is not subject to double jeopardy. See, e. g., 89 Firearms, 465 U. S., at 363. Nevertheless, where the "clearest proof" indicates that an in rem civil forfeiture is "so290Moving to the second stage of our analysis, we find that there is little evidence, much less the" 'clearest proof'" that we require, see 89 Firearms, supra, at 365, quoting Ward, 448 U. S., at 249, suggesting that forfeiture proceedings under 21 U. S. C. §§ 881(a)(6) and (a)(7), and 18 U. S. C. § 981(a)(1)(A), are so punitive in form and effect as to render them criminal despite Congress' intent to the contrary. The statutes involved in these cases are, in most significant respects, indistinguishable from those reviewed, and held not to be punitive, in Various Items, Emerald Cut Stones, and 89 Firearms.Most significant is that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7), while perhaps having certain punitive aspects, serve important nonpunitive goals. Title 21 U. S. C. § 881(a)(7), under which Ursery's property was forfeited, provides for the forfeiture of "all real property ... which is used or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a federal drug felony. Requiring the forfeiture of property used to commit federal narcotics violations encourages property owners to take care in managing their property and ensures that they will not permit that property to be used for illegal purposes. See Bennis v. Michigan, 516 U. S. 442, 452 (1996) ("Forfeiture of property prevents illegal uses ... by imposing an economic penalty, thereby rendering illegal behavior unprofitable"); 89 Firearms, supra, at 364 (forfeiture "discourages unregulated commerce in firearms"); Calero-Toledo, supra, at 687-688. In many circumstances, the forfeiture may abate a nuisance. See, e. g., United States v. 1.f"lst Street Corp., 911 F.2d 870 (CA2 1990) (forfeiting apartment building used to sell crack cocaine); see also Bennis, supra, at 452 (affirming application of Michigan statute abating car as a nuisance; forfeiture "prevent[s] further illicit use of" property); cf. 89 Firearms, 465punitive either in purpose or effect" as to be equivalent to a criminal proceeding, that forfeiture may be subject to the Double Jeopardy Clause. Id., at 365.291u. S., at 364 (forfeiture "remov[ed] from circulation firearms that have been used or intended for use" illegally); Emerald Cut Stones, 409 U. S., at 237 (forfeiture "prevented forbidden merchandise from circulating in the United States").The forfeiture of the property claimed by Arlt and Wren took place pursuant to 18 U. S. C. § 981(a)(1)(A) and 21 U. S. C. § 881 (a) (6). Section 981(a)(1)(A) provides for the forfeiture of "[a]ny property" involved in illegal moneylaundering transactions. Section 881(a)(6) provides for the forfeiture of "[a]ll ... things of value furnished or intended to be furnished by any person in exchange for" illegal drugs; "all proceeds traceable to such an exchange"; and "all moneys, negotiable instruments, and securities used or intended to be used to facilitate" a federal drug felony. The same remedial purposes served by § 881(a)(7) are served by §§ 881(a)(6) and 981(a)(1)(A). Only one point merits separate discussion. To the extent that § 881(a)(6) applies to "proceeds" of illegal drug activity, it serves the additional nonpunitive goal of ensuring that persons do not profit from their illegal acts.Other considerations that we have found relevant to the question whether a proceeding is criminal also tend to support a conclusion that § 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are civil proceedings. See Ward, supra, at 247-248, n. 7,249 (listing relevant factors and noting that they are neither exhaustive nor dispositive). First, in light of our decisions in Various Items, Emerald Cut Stones, and 89 Firearms, and the long tradition of federal statutes providing for a forfeiture proceeding following a criminal prosecution, it is absolutely clear that in rem civil forfeiture has not historically been regarded as punishment, as we have understood that term under the Double Jeopardy Clause. Second, there is no requirement in the statutes that we currently review that the Government demonstrate scienter in order to establish that the property is subject to forfeiture; indeed, the property may be subject to forfeiture even if no party files a292claim to it and the Government never shows any connection between the property and a particular person. See 19 U. S. C. § 1609. Though both §§ 881(a) and 981(a) contain an "innocent owner" exception, we do not think that such a provision, without more indication of an intent to punish, is relevant to the question whether a statute is punitive under the Double Jeopardy Clause. Third, though both statutes may fairly be said to serve the purpose of deterrence, we long have held that this purpose may serve civil as well as criminal goals. See, e. g., 89 Firearms, supra, at 364; CaleroToledo, 416 U. S., at 677-678. We recently reaffirmed this conclusion in Bennis v. Michigan, supra, at 452, where we held that "forfeiture ... serves a deterrent purpose distinct from any punitive purpose." Finally, though both statutes are tied to criminal activity, as was the case in 89 Firearms, this fact is insufficient to render the statutes punitive. See 89 Firearms, supra, at 365-366. It is well settled that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission," Helvering, 303 U. S., at 399. By itself, the fact that a forfeiture statute has some connection to a criminal violation is far from the "clearest proof" necessary to show that a proceeding is criminal.We hold that these in rem civil forfeitures are neither "punishment" nor criminal for purposes of the Double Jeopardy Clause. The judgments of the Court of Appeals for the Sixth Circuit, in No. 95-345, and of the Court of Appeals for the Ninth Circuit, in No. 95-346, are, accordingly, reversed.It is so ordered

OCTOBER TERM, 1995SyllabusUNITED STATES v. URSERYCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 95-345. Argued April 17, 1996-Decided June 24,1996*In No. 95-345, the Government instituted civil forfeiture proceedings under 21 U. S. C. § 881 (a)(7) against respondent Ursery's house, alleging that it had been used to facilitate illegal drug transactions. Shortly before Ursery settled that claim, he was indicted, and was later convicted, of manufacturing marijuana in violation of §841(a)(I). In No. 95-346, the Government filed a civil in rem complaint against various property seized from, or titled to, respondents Arlt and Wren or Arlt's corporation, alleging that each item was subject to forfeiture under 18 U. S. C. § 981(a)(I)(A) because it was involved in money laundering violative of § 1956, and to forfeiture under 21 U. S. C. § 881(a)(6) as the proceeds of a felonious drug transaction. Litigation of the forfeiture action was deferred while Arlt and Wren were prosecuted on drug and moneylaundering charges under § 846 and 18 U. S. C. §§ 371 and 1956. After their convictions, the District Court granted the Government's motion for summary judgment in the forfeiture proceeding. The Courts of Appeals reversed Ursery's conviction and the forfeiture judgment against Arlt and Wren, holding that the Double Jeopardy Clause prohibits the Government from both punishing a defendant for a criminal offense and forfeiting his property for that same offense in a separate civil proceeding. The courts reasoned in part that United States v. Halper, 490 U. S. 435, and Austin v. United States, 509 U. S. 602, meant that, as a categorical matter, civil forfeitures always constitute "punishment" for double jeopardy purposes. This Court consolidated the cases.Held: In rem civil forfeitures are neither "punishment" nor criminal for purposes of the Double Jeopardy Clause. Pp. 273-292.(a) Congress long has authorized the Government to bring parallel criminal actions and in rem civil forfeiture proceedings based upon the same underlying events, see, e. g., The Palmyra, 12 Wheat. 1, 14-15, and this Court consistently has concluded that the Double Jeopardy Clause does not apply to such forfeitures because they do not impose punishment, see, e. g., Various Items of Personal Property v. United States,*Together with No. 95-346, United States v. $405,089.23 in United States Currency et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.268Syllabus282 U. S. 577, 581; One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 235-236 (per curiam). In its most recent case, United States v. One Assortment of 89 Firearms, 465 U. S. 354, the Court held that a forfeiture was not barred by a prior criminal proceeding after applying a two-part test asking, first, whether Congress intended the particular forfeiture to be a remedial civil sanction or a criminal penalty, and, second, whether the forfeiture proceedings are so punitive in fact as to establish that they may not legitimately be viewed as civil in nature, despite any congressional intent to establish a civil remedial mechanism. Pp.274-278.(b) Though the 89 Firearms test was more refined, perhaps, than the Court's Various Items analysis, the conclusion was the same in each case: In rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment for double jeopardy purposes. See Gore v. United States, 357 U. S. 386, 392. The Courts of Appeals misread Halper, Austin, and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, as having abandoned this oft-affirmed rule. None of those decisions purported to overrule Various Items, Emerald Cut Stones, and 89 Firearms or to replace the Court's traditional understanding. It would have been remarkable for the Court both to have held unconstitutional a well-established practice, and to have overruled a long line of precedent, without having even suggested that it was doing so. Moreover, the cases in question did not deal with the subject of these cases: in rem civil forfeitures for double jeopardy purposes. Halper involved in personam civil penalties under the Double Jeopardy Clause. Kurth Ranch considered a punitive state tax imposed on marijuana under that Clause. And Austin dealt with civil forfeitures under the Eighth Amendment's Excessive Fines Clause. Pp. 278-288.(c) The forfeitures at issue are civil proceedings under the two-part 89 Firearms test. First, there is little doubt that Congress intended proceedings under §§ 881 and 981 to be civil, since those statutes' procedural enforcement mechanisms are themselves distinctly civil in nature. See, e. g., 89 Firearms, 465 U. S., at 363. Second, there is little evidence, much less the "clearest proof" that the Court requires, see, e. g., id., at 365, suggesting that forfeiture proceedings under those sections are so punitive in form and effect as to render them criminal despite Congress' intent to the contrary. These statutes are, in most significant respects, indistinguishable from those reviewed, and held not to be punitive, in Various Items, Emerald Cut Stones, and 89 Firearms. That these are civil proceedings is also supported by other factors that the Court has found persuasive, including the considerations that (1) in rem civil forfeiture has not historically been regarded as punishment; (2)269Full Text of Opinion

1964_437

MR. JUSTICE GOLDBERG delivered the opinion of the Court.On March 13, 1963, petitioner, a resident of Kentucky, began an action under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. (1958 ed.) in the Common Pleas Court of Hamilton County, Ohio. He alleged that he had been injured on March 17, 1960, in Indiana, while in the course of his employment with respondent, the New York Central Railroad. The Page 380 U. S. 425 Ohio court had jurisdiction of the action, and respondent was properly served with process. The action was dismissed upon respondent's motion, however, because venue was improper. While, in Ohio, in most transitory actions, venue is proper wherever the defendant can be summoned, see Ohio Rev.Code, §§ 2307.36, 2307.38, 2307.39, venue is properly laid in actions against railroads to recover for personal injuries only in the county of the plaintiff's residence or the county where the injury occurred. [Footnote 1] See Ohio Rev.Code, § 2307.37, Loftus v. Pennsylvania R. Co., 107 Ohio St. 352, 140 N.E. 94. On June 12, 1963, eight days after his state court action was dismissed, petitioner brought an identical action in the Federal District Court for the Southern District of Ohio. The District Court dismissed petitioner's complaint on the ground that, although the state suit was brought within the limitations period, the federal action was not timely, and was then barred by the limitation provision of the FELA, 35 Stat. 66, as amended, 45 U.S.C. § 56 (1958 ed.), which provides "[t]hat no action shall be maintained under this Act unless commenced within three years from the day the cause of action accrued." 230 F. Supp. 767. The Court of Appeals, rejecting petitioner's argument that his suit in the state court had tolled the FELA limitation provision, affirmed the District Court's dismissal of his suit. 332 F.2d 529. The Court of Appeals reasoned that, since the limitation provision does not limit a common law right, but, rather, is contained in the same Act which creates the right being limited, the limitation is "substantive," and not "procedural." For this reason, it held, "[f]ailure to bring the action within the time prescribed Page 380 U. S. 426 extinguished the cause of action." 332 F.2d at 530. We granted certiorari to determine whether petitioner's suit in the Ohio state court tolled the FELA statute of limitations. 379 U.S. 913.There is no doubt that, as a matter of federal law, the state action here involved was properly "commenced" within the meaning of the federal limitation statute which provides that "no action shall be maintained . . . unless commenced within three years from the day the cause of action accrued." As this Court held in Herb v. Pitcairn, 325 U. S. 77, 325 U. S. 79,"when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process, it is enough to commence the action within the federal statute."Had Ohio law permitted this state court action simply to be transferred to another state court, Herb v. Pitcairn holds that it would have been timely. The problem here, however, is that the timely state court action was not transferable under Ohio law, but rather was dismissed, and a new action was brought in a federal court more than three years after the cause of action accrued. Nonetheless, for the reasons set out below, we hold that the principles underlying the Court's decision in Herb v. Pitcairn lead to the conclusion that petitioner's state court action tolled the federal limitation provision, and therefore petitioner's federal court action here was timely.The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled is one "of legislative intent whether the right shall be enforceable . . . after the prescribed time." Mid-state Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356, 320 U. S. 360. Classification of such a provision as "substantive," rather than "procedural," does not determine whether or under what circumstances the limitation Page 380 U. S. 427 period may be extended. [Footnote 2] As this Court has expressly held, the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. Glus v. Brooklyn Eastern Terminal, 359 U. S. 231. See Osbourne v. United States, 164 F.2d 767 (C.A.2d Cir.); Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (C.A.4th Cir.); Frabutt v. New York, C. & St. L. R. Co., 84 F. Supp. 460 (D.C.W.D.Pa.). These authorities indicate that the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the enforcement of the rights given by the Act. Such an examination leads us to conclude that it effectuates the basic congressional purposes in enacting this humane and remedial Act, [Footnote 3] as well as those policies Page 380 U. S. 428 embodied in the Act's limitation provision, to hold that, when a plaintiff begins a timely FELA action in a state court of competent jurisdiction, service of process is made upon the opposing party, and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action.Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes"promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that, even if one has a just claim, it is unjust not to put the adversary on notice to defend within the period of limitation, and that the right to be free of stale claims in time comes to prevail over the right to prosecute them."Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342, 321 U. S. 348-349. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights. [Footnote 4]This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff's rights. Thus, this Court has held that an FELA action is not barred, though brought more than three years after the cause of action accrued, where a defendant misled the plaintiff into believing that he had more than three years in which to bring the action. Glus v. Brooklyn Eastern Terminal, supra. Moreover, it has been held that the Page 380 U. S. 429 FELA limitation provision is tolled when war has prevented a plaintiff from bringing his suit, even though a defendant in such a case might not know of the plaintiff's disability and might believe that the statute of limitations renders him immune from suit. See Osbourne v. United States, supra; Frabutt v. New York, C. & St. L. R. Co., supra. In such cases, a plaintiff has not slept on his rights but, rather, has been prevented from asserting them.Considerations in favor of tolling the federal statute of limitations in this case are similar to those leading to an extension of the limitation period in the cases mentioned above. Petitioner here did not sleep on his rights, but brought an action within the statutory period in the state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action. While venue was improper in the state court, under Ohio law, venue objections may be waived by the defendant, [Footnote 5] and evidently, in past cases, defendant railroads, including this respondent, had waived objections to venue so that suits by nonresidents of Ohio could proceed in state courts. [Footnote 6] Petitioner, then, failed to file an FELA action in the federal courts not because he was disinterested, but solely because he felt that his state action was sufficient. Respondent Page 380 U. S. 430 could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy; in fact, respondent appeared specially in the Ohio court to file a motion for dismissal on grounds of improper venue.Both federal and state jurisdictions have recognized the unfairness of barring a plaintiff's action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run. In both federal and state systems of justice, rules have been devised to prevent this from happening. Thus, a federal statute, 28 U.S.C. § 1406(a), allows a district court "of a district in which is filed a case laying venue in the wrong division or district . . . if it be in the interest of justice" to "transfer such case to any district or division in which it could have been brought." [Footnote 7] Congress thereby recognized that the filing of a lawsuit"itself shows the proper diligence on the part of the plaintiff which . . . statutes of limitation were intended to insure. If, by reason of the uncertainties of proper venue, a mistake is made . . . 'the interest of justice' may require that the complaint . . . be transferred in order that the plaintiff not be penalized by . . . 'time-consuming and justice-defeating technicalities.'"Goldlawr, Inc. v. Heiman, 369 U. S. 463, 369 U. S. 467. If petitioner in this case had instituted his suit in a federal court where venue was improper, his case could simply have been transferred under § 1406(a) to a court with proper venue; the statute of limitations would not have barred his action. Page 380 U. S. 431The States have developed two methods for preserving causes of action which would otherwise be barred by the passing of a limitation period after a plaintiff has brought his action in a court with improper venue. The first method is analogous to the congressional statute, 28 U.S.C. § 1406(a), and permits transfer within the State from a court with improper venue to one where venue is proper. [Footnote 8] This Court has held that, when a timely FELA action is brought in a state court without proper venue and service of process issues, the statute of limitations cannot bar the action when it is later transferred to a proper state court after the limitation period has run. Herb v. Pitcairn, supra. Thus, if venue for petitioner's action were proper in some other county in Ohio, and if Ohio chose to preserve improper venue actions by means of a "transfer" statute, petitioner's action would not have been barred by the statute of limitations. The second method used by many States to preserve actions brought in a court where venue is improper is a "savings" statute. [Footnote 9] Page 380 U. S. 432 Such a statute specifically gives to a plaintiff whose timely action is dismissed for procedural reasons such as improper venue a specified time in which to bring a second action. Ohio has such a statute, Ohio Rev.Code § 2305.19, and, had petitioner's action been one arising under Ohio law, he would have had an additional year in which to file his action in a proper court. State causes of action brought in a court where venue is improper are preserved by one or the other of these two methods in 44 States. [Footnote 10]These factors point to the conclusion that Congress did not intend the statute of limitations to bar a plaintiff who brings a timely FELA action in a state court of competent jurisdiction, who serves the defendant with process, and whose action is later dismissed for improper venue. This does not mean that we can accept petitioner's argument that the federal limitation provision Page 380 U. S. 433 incorporates the Ohio Saving Statute. To allow the limitation provision to incorporate state saving statutes would produce nonuniform periods of limitation in the several States. The scope of such statutes and the length of additional time they allow vary considerably from State to State. [Footnote 11] Moreover, not all States have saving statutes. [Footnote 12] This Court has long recognized that the FELA "has a uniform operation, and neither is nor can be deflected therefrom by local statutes." Panama R. Co. v. Johnson, 264 U. S. 375, 264 U. S. 392; Second Employers' Liability Cases, 223 U. S. 1, 223 U. S. 51, 223 U. S. 55. This Court has also specifically held that "[t]he period of time within which an action may be commenced is a material element in [a] uniformity of operation" which Congress would not wish "to be destroyed by the varying provisions of the State statutes of limitation." Engel v. Davenport, 271 U. S. 33, 271 U. S. 39. The incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity.On the other hand, to accept respondent's argument that the limitation provision is not tolled under the circumstances present here would do even greater violence to the policies underlying the limitation provision and the Act. It would produce a substantial nonuniformity by creating a procedural anomaly. A plaintiff who brings a timely FELA action in a federal court where venue is improper would not be barred by the subsequent running of the limitation period, 28 U.S.C. § 1406(a), nor would a plaintiff who brings a timely FELA action in a state Page 380 U. S. 434 court where venue is improper be barred by the subsequent running of the limitation period provided that the State has a "transfer" statute and venue is proper elsewhere in the State. Herb v. Pitcairn, supra. However, a similar plaintiff in a state court would be barred from further actions by the running of the limitation period if the State relies upon a "saving" statute, rather than a "transfer" statute to preserve similar state actions. [Footnote 13] Thus, in effect, a nonuniform limitation provision would be produced. Yet, as we have pointed out, a major reason for having a federal limitation provision was to achieve national uniformity. Engel v. Davenport, supra. Moreover, to accept respondent's position could only discourage FELA actions in the courts of certain States. Yet Congress, in providing for concurrent state and federal court jurisdiction and prohibiting removal of FELA cases to federal courts, has sought to protect the plaintiff's right to bring an FELA action in a state court. See Great Northern R. Co. v. Alexander, 246 U. S. 276. Cf. Gibson, The Venue Clause and Transportation of Lawsuits, 18 Law & Contemp. Prob. 367 (1953). Further, as we have pointed out, both Congress and the States have made clear, through various procedural statutes, their desire to prevent timely actions brought in courts with improper venue from being time-barred merely because the limitation period expired while the action was in the improper court. Finally, the humanitarian purpose of the FELA makes clear that Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so.These considerations thus lead us to conclude that, when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process Page 380 U. S. 435 and plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit. We believe that the interests of uniformity embodied in the Act are best served by holding that this rule, tolling the statute, applies in all States, regardless of whether or not a State has a "saving" statute. We further hold, under familiar principles which have been applied to statutes of limitations, that the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal. [Footnote 14] While this rule produces a minor nonuniformity, since the time allowed for taking an appeal is not the same in all States, to adopt state "saving" statutes would be far less uniform. The period "saved" under such statutes varies widely among the States, and some States do not have "saving" statutes. Similarly, to toll the federal statute for a "reasonable time" after the state court orders the plaintiff's action dismissed would create uncertainty as to exactly when the limitation period again begins to run. This uncertainty would be compounded by applying the equitable doctrine of "laches" to the federal law suit brought after the dismissal of the state court action. Whether laches bars an action in a given case depends upon the circumstances of that case, and "is a question primarily addressed to the discretion of the trial court." Gardner v. Panama R. Co., 342 U. S. 29, 342 U. S. 30. To apply it here would be at variance with the policies of certainty and uniformity underlying this statute of limitations. We conclude that a uniform rule tolling the federal statute for the period of the pendency of the state Page 380 U. S. 436 court action and until the state court dismissal order becomes final is fair to both plaintiff and defendant, carries out the purposes of the FELA and best serves the policies of uniformity and certainty underlying the federal limitation provision.Applying these principles to the present case, since petitioner brought a timely suit in the Ohio court, served defendant with process, and, after finding the state action dismissed for improper venue, filed his suit in the Federal District Court only eight days after the Ohio court dismissed his action, before his time for appealing from the Ohio order had expired, his federal court action was timely. The Court of Appeals decision affirming the District Court's dismissal of petitioner's action is therefore reversed, and this case is remanded for proceedings consistent with this opinion.Reversed

U.S. Supreme CourtBurnett v. New York Central R. Co., 380 U.S. 424 (1965)Burnett v. New York Central Railroad Co.No. 437Argued March 11, 1965Decided April 5, 1965380 U.S. 424SyllabusPetitioner brought an action in an Ohio court with jurisdiction against respondent, who was properly served with process, under the Federal Employers' Liability Act (FELA) only a few days before the expiration of the three-year limitation period provided by the Act. Because, under Ohio law, venue was improper, the action was dismissed. Eight days later, and after the expiration of the three-year period, petitioner filed the FELA action in the federal court. The District Court dismissed the complaint as untimely, and the Court of Appeals affirmed.Held: where a timely FELA action is begun in a state court having jurisdiction, the defendant is served with process, and the case is dismissed for improper venue, the FELA time limitation is tolled during the pendency of the state suit and until the state court order dismissing the action becomes final. Pp. 380 U. S. 426-436.332 F.2d 529 reversed and remanded.

1957_483

MR. JUSTICE BRENNAN delivered the opinion of the Court.The appellants are honorably discharged veterans of World War II who claimed the veterans' property tax Page 357 U. S. 515 exemption provided by Art. XIII, § 1 1/4, of the California Constitution. Under California law, applicants for such exemption must annually complete a standard form of application and file it with the local assessor. The form was revised in 1954 to add an oath by the applicant:"I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign Government against the United States in event of hostilities."Each refused to subscribe the oath and struck it from the form which he executed and filed for the tax year 1954-1955. Each contended that the exaction of the oath as a condition of obtaining a tax exemption was forbidden by the Federal Constitution. The respective assessors denied the exemption solely for the refusal to execute the oath. The Supreme Court of California sustained the assessors' actions against the appellants' claims of constitutional invalidity. [Footnote 1] We noted probable jurisdiction of the appeals. 355 U.S. 880. Page 357 U. S. 516Article XX, § 19, of the California Constitution, adopted at the general election of November 4, 1952, provides as follows:"Notwithstanding any other provision of this Constitution, no person or organization which advocates the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities shall:""* * * *" "(b) Receive any exemption from any tax imposed by this State or any county, city or county, city, district, political subdivision, authority, board, bureau, commission or other public agency of this State.""The Legislature shall enact such laws as may be necessary to enforce the provisions of this section."To effectuate this constitutional amendment, the California Legislature enacted § 32 of the Revenue and Taxation Code, which requires the claimant, as a prerequisite to qualification for any property tax exemption, to sign a statement on his tax return declaring that he does not engage in the activities described in the constitutional amendment. [Footnote 2] The California Supreme Court held that Page 357 U. S. 517 this declaration, like other statements required of those filing tax returns, was designed to relieve the tax assessor of "the burden . . . of ascertaining the facts with reference to tax exemption claimants." 48 Cal. 2d 419, 432, 311 P.2d 508, 515. The declaration, while intended to provide a means of determining whether a claimant qualifies for the exemption under the constitutional amendment, is not conclusive evidence of eligibility. The assessor has the duty of investigating the facts underlying all tax liabilities, and is empowered by § 454 of the Code to subpoena taxpayers for the purpose of questioning them about statements they have furnished. If the assessor believes that the claimant is not qualified in any respect, he may deny the exemption and require the claimant, on judicial review, to prove the incorrectness of the determination. In other words, the factual determination whether the taxpayer is eligible for the exemption under the constitutional amendment is made in precisely the same manner as the determination of any other fact bearing on tax liability.The appellants attack these provisions, inter alia, as denying them freedom of speech without the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment. [Footnote 3] Page 357 U. S. 518IIt cannot be gainsaid that a discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. The Supreme Court of California recognized that these provisions were limitations on speech but concluded that "by no standard can the infringement upon freedom of speech imposed by section 19 of article XX be deemed a substantial one." 48 Cal. 2d 419, 440, 311 P.2d 508, 521. It is settled that speech can be effectively limited by the exercise of the taxing power. Grosjean v. American Press Co., 297 U. S. 233. To deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The appellees are plainly mistaken in their argument that, because a tax exemption is a "privilege" or "bounty," its denial may not infringe speech. This contention did not prevail before the California courts, which recognized that conditions imposed upon the granting of privileges or gratuities must be "reasonable." It has been said that Congress may not, by withdrawal of mailing privileges, place limitations upon the freedom of speech which, if directly attempted, would be unconstitutional. See Hannegan v. Esquire, Inc., 327 U. S. 146; cf. Milwaukee Publishing Co. v. Burleson, 255 U. S. 407, 255 U. S. 430-431 (Brandeis, J., dissenting). This Court has similarly rejected the contention that speech was not abridged when the Page 357 U. S. 519 sole restraint on its exercise was withdrawal of the opportunity to invoke the facilities of the National Labor Relations Board, American Communications Ass'n v. Douds, 339 U. S. 382, 339 U. S. 402, or the opportunity for public employment, Wieman v. Updegraff, 344 U. S. 183. So here, the denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas." American Communications Ass'n v. Douds, supra, at page 339 U. S. 402.The Supreme Court of California construed the constitutional amendment as denying the tax exemptions only to claimants who engage in speech which may be criminally punished consistently with the free speech guarantees of the Federal Constitution. The court defined advocacy of "the overthrow of the Government . . . by force or violence or other unlawful means" and advocacy of "support of a foreign government against the United States in event of hostilities" as reaching only conduct which may constitutionally be punished under either the California Criminal Syndicalism Act, Cal.Stat.1919, c. 188, see Whitney v. People of State of California, 274 U. S. 357, or the Federal Smith Act, 18 U.S.C. § 2385. 48 Cal.2d at page 428, 311 P.2d at page 513. It also said that it would apply the standards set down by this Court in Dennis v. United States, 341 U. S. 494, in ascertaining the circumstances which would justify punishing speech as a crime. [Footnote 4] Of course, the constitutional and statutory provisions here involved must be read in light of the restrictive construction that the California court, in the exercise of its function of interpreting state law, has placed upon them. For Page 357 U. S. 520 the purposes of this case, we assume without deciding that California may deny tax exemptions to persons who engage in the proscribed speech for which they might be fined or imprisoned. [Footnote 5]IIBut the question remains whether California has chosen a fair method for determining when a claimant is a member of that class to which the California court has said the constitutional and statutory provisions extend. When we deal with the complex of strands in the web of freedoms which make up free speech, the operation and effect of the method by which speech is sought to be restrained must be subjected to close analysis and critical judgment in the light of the particular circumstances to which it is applied. Kingsley Books, Inc., v. Brown, 354 U. S. 436, 354 U. S. 441-442; Near v. State of Minnesota, 283 U. S. 697; cf. Cantwell v. State of Connecticut, 310 U. S. 296, 310 U. S. 305; Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495; Winters v. People of State of New York, 333 U. S. 507; Niemotko v. State of Maryland, 340 U. S. 268; Staub v. City of Baxley, 355 U. S. 313.To experienced lawyers, it is commonplace that the outcome of a lawsuit -- and hence the vindication of legal rights -- depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus, the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake, the more important Page 357 U. S. 521 must be the procedural safeguards surrounding those rights. Cf. Powell v. State of Alabama, 287 U. S. 45. When the State undertakes to restrain unlawful advocacy it must provide procedures which are adequate to safeguard against infringement of constitutionally protected rights -- rights which we value most highly and which are essential to the workings of a free society. Moreover, since only considerations of the greatest urgency can justify restrictions on speech, and since the validity of a restraint on speech in each case depends on careful analysis of the particular circumstances, cf. Dennis v. United States, supra; Whitney v. People of State of California, supra, the procedures by which the facts of the case are adjudicated are of special importance, and the validity of the restraint may turn on the safeguards which they afford. Compare Kunz v. New York, 340 U. S. 290, with Feiner v. New York, 340 U. S. 315. It becomes essential, therefore, to scrutinize the procedures by which California has sought to restrain speech.The principal feature of the California procedure, as the appellees themselves point out, is that the appellants,"as taxpayers under state law, have the affirmative burden of proof, in Court as well as before the Assessor. . . . [I]t is their burden to show that they are proper persons to qualify under the self-executing constitutional provision for the tax exemption in question -- i.e., that they are not persons who advocate the overthrow of the government of the United States or the State by force or violence or other unlawful means or who advocate the support of a foreign government against the United States in the event of hostilities. . . . [T]he burden is on them to produce evidence justifying their claim of exemption. [Footnote 6] Page 357 U. S. 522 Not only does the initial burden of bringing forth proof of nonadvocacy rest on the taxpayer, but, throughout the judicial and administrative proceedings, the burden lies on the taxpayer of persuading the assessor, or the court, that he falls outside the class denied the tax exemption. The declaration required by § 32 is but a part of the probative process by which the State seeks to determine which taxpayers fall into the proscribed category. [Footnote 7] Thus, Page 357 U. S. 523 the declaration cannot be regarded as having such independent significance that failure to sign it precludes review of the validity of the procedure of which it is a part. Cf. Staub v. City of Baxley, supra, at 355 U. S. 318-319. The question for decision, therefore, is whether this allocation of the burden of proof, on an issue concerning freedom of speech, falls short of the requirements of due process."It is, of course, within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,"unless, in so doing, it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."Snyder v. Commonwealth of Massachusetts, 291 U. S. 97, 291 U. S. 105."[O]f course, the legislature may go a good way in raising . . . (presumptions) or in changing the burden of proof, but there are limits. . . . [I]t is not within the province of a legislature Page 357 U. S. 524 to declare an individual guilty or presumptively guilty of a crime."McFarland v. American Sugar Refining Co., 241 U. S. 79, 241 U. S. 86. The legislature cannot"place upon all defendants in criminal cases the burden of going forward with the evidence. . . . [It cannot] validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible."Tot v. United States, 319 U. S. 463, 319 U. S. 469. Of course, the burden of going forward with the evidence at some stages of a criminal trial may be placed on the defendant, but only after the State has"proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression."Morrison v. California, 291 U. S. 82, 291 U. S. 88-89. In civil cases, too, this Court has struck down state statutes unfairly shifting the burden of proof. Western & A.R. Co. v. Henderson, 279 U. S. 639; cf. Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U. S. 35, 219 U. S. 43.It is true that due process may not always compel the full formalities of a criminal prosecution before criminal advocacy can be suppressed or deterred, but it is clear that the State which attempts to do so must provide procedures amply adequate to safeguard against invasion of speech which the Constitution protects. Kingsley Books, Inc., v. Brown, supra. It is, of course, familiar practice in the administration of a tax program for the taxpayer to carry the burden of introducing evidence to rebut the determination of the collector. Phillips v. Dime Trust Co., 284 U. S. 160, 284 U. S. 167; Brown v. Helvering, 291 U. S. 193, 291 U. S. 199. But while the fairness of placing the burden of proof on the taxpayer in most circumstances is Page 357 U. S. 525 recognized, this Court has not hesitated to declare a summary tax collection procedure a violation of due process when the purported tax was shown to be in reality a penalty for a crime. Lipke v. Lederer, 259 U. S. 557; cf. Helwig v. United States, 188 U. S. 605. The underlying rationale of these cases is that, where a person is to suffer a penalty for a crime, he is entitled to greater procedural safeguards than when only the amount of his tax liability is in issue. Similarly, it does not follow that, because only a tax liability is here involved, the ordinary tax assessment procedures are adequate when applied to penalize speech.It is true that, in the present case, the appellees purport to do no more than compute the amount of the taxpayer's liability in accordance with the usual procedures, but in fact they have undertaken to determine whether certain speech falls within a class which constitutionally may be curtailed. As cases decided in this Court have abundantly demonstrated, the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Thomas v. Collins, 323 U. S. 516; cf. Yates v. United States, 354 U. S. 298. The separation of legitimate from illegitimate speech calls for more sensitive tools than California has supplied. In all kinds of litigation, it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U. S. 208; United States v. New York, N.H. & H.R. Co., 355 U. S. 253; Sampson v. Channell, 110 F.2d 754, 758. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value -- as a criminal defendant his liberty -- this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first Page 357 U. S. 526 instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt. Tot v. United States, supra. Where the transcendent value of speech is involved, due process certainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in criminal speech. Cf. Kingsley Books, Inc., v. Brown, supra.The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding -- inherent in all litigation -- will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free."It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions."Bailey v. State of Alabama, 219 U. S. 219, 239. Page 357 U. S. 527The appellees, in controverting this position, rely on cases in which this Court has sustained the validity of loyalty oaths required of public employees, Garner v. Board of Public Works, 341 U. S. 716, candidates for public office, Gerende v. Board of Supervisors, 341 U. S. 56, and officers of labor unions, American Communications Ass'n v. Douds, supra. In these cases, however, there was no attempt directly to control speech, but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern. The purpose of the legislation sustained in the Douds case, the Court found, was to minimize the danger of political strikes disruptive of interstate commerce by discouraging labor unions from electing Communist Party members to union office. While the Court recognized that the necessary effect of the legislation was to discourage the exercise of rights protected by the First Amendment, this consequence was said to be only indirect. The congressional purpose was to achieve an objective other than restraint on speech. Only the method of achieving this end touched on protected rights and that only tangentially. The evil at which Congress has attempted to strike in that case was thought sufficiently grave to justify limited infringement of political rights. Similar considerations governed the other cases. Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs, but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public. The present legislation, however, can have no such justification. It purports to deal directly with speech and the expression of political ideas. "Encouragement to loyalty to our institutions . . . [is a doctrine] which the state has plainly promulgated and intends to foster." 48 Cal.2d Page 357 U. S. 528 at 439, 311 P.2d at 520. The State argues that veterans as a class occupy a position of special trust and influence in the community, and therefore any veteran who engages in the proscribed advocacy constitutes a special danger to the State. But while a union official or public employee may be deprived of his position, and thereby removed from the place of special danger, the State is powerless to erase the service which the veteran has rendered his country; though he be denied a tax exemption, he remains a veteran. The State, consequently, can act against the veteran only as it can act against any other citizen, by imposing penalties to deter the unlawful conduct.Moreover, the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases, it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right to office was concerned. If the person took the oath, he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position. [Footnote 8] The signer, of course, could be prosecuted for perjury, but only in accordance with the strict procedural safeguards surrounding such criminal prosecutions. In the present case, however, it is clear that the declaration may be accepted or rejected on the basis of incompetent information or no information at all. It is only a step in a process throughout which the taxpayer must bear the burden of proof.Believing that the principles of those cases have no application here, we hold that when the constitutional Page 357 U. S. 529 right to speak is sought to be deterred by a State's general taxing program due process demands that the speech he unencumbered until the State comes forward with sufficient proof to justify its inhibition. The State clearly has no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech. Accordingly, though the validity of § 19 of Art. XX of the State Constitution be conceded arguendo, its enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process. It follows from this that appellants could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the assessor proceeding further in determining whether they were entitled to such an exemption. Since the entire statutory procedure, by placing the burden of proof on the claimants, violated the requirements of due process, appellants were not obliged to take the first step in such a procedure.The judgments are reversed and the causes are remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtSpeiser v. Randall, 357 U.S. 513 (1958)Speiser v. RandallNo. 483Argued April 8-9, 1958Decided June 30, 1958*357 U.S. 513SyllabusSolely because they refused to subscribe oaths that they do not advocate the overthrow of the Federal or State Government by force, violence or other unlawful means, or advocate the support of a foreign government against the United States in event of hostilities, appellants were denied tax exemptions provided for veterans by the California Constitution. The filing of such an oath was required by a California statute as a prerequisite to qualification for the tax exemption, in order to effectuate a provision of the State Constitution denying any tax exemption to any person who advocates such actions, which was construed by the State Supreme Court as denying tax exemptions only to claimants who engage in speech which may be criminally punished consistently with the free speech guarantees of the Federal Constitution.Held: Enforcement of this provision through procedures which place the burdens of proof and persuasion on the taxpayers denied them freedom of speech without the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment. Pp. 357 U. S. 514-529.1. A discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. Pp. 357 U. S. 518-520.2. The method chosen by California for determining whether a claimant is a member of the class to which its Supreme Court has said that the tax exemption is denied does not provide the procedural safeguards required by the Due Process Clause of the Fourteenth Amendment before free speech may be denied, since it places on the taxpayer the burden of proving that he is not a member of that class. Pp. 357 U. S. 520-529.(a) When a State undertakes to restrain unlawful advocacy, it must provide procedures which are adequate to safeguard against infringement of constitutionally protected rights. Pp. 357 U. S. 520-521.(b) The California procedure places upon the taxpayer the burden of proving that he does not criminally advocate the overthrow Page 357 U. S. 514 of the Federal or State Government by force, violence, or other unlawful means or advocate the support of a foreign government against the United States in the event of hostilities. Pp. 357 U. S. 521-523.(c) It does not follow that because only a tax liability is here involved, the ordinary tax assessment procedures are adequate when applied to penalize speech. Pp. 357 U. S. 523-525.(d) Since free speech is involved, due process requires in the circumstances of this case that the State bear the burden of showing that appellants engaged in criminal speech. Pp. 357 U. S. 525-526.(e) Garner v. Board of Public Works, 341 U. S. 716; Gerende v. Board of Supervisors, 341 U. S. 56, and American Communications Assn. v. Douds, 339 U. S. 382, distinguished. Pp. 357 U. S. 527-528.(f) When the constitutional right to speak is sought to be deterred by a State's general taxing program, due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition. Pp. 357 U. S. 528-529.(g) Since the entire statutory procedure violated the requirements of due process by placing the burdens of proof and persuasion on them, appellants were not obliged to take even the first step in such procedure as a condition for obtaining the tax exemption. P. 357 U. S. 529.48 Cal. 2d 472, 903, 311 P.2d 544, 546, reversed, and cause remanded.

1995_94-923

Thomas A. Farr argued the cause and filed briefs for appellants in No. 94-924. With him on the briefs were Thomas F. Ellis, James C. Dever III, and Craig D. Mills.Edwin M. Speas, Jr., Senior Deputy Attorney General of North Carolina, argued the cause for appellees Hunt et al. in both cases. With him on the brief for state appellees were Michael F. Easley, Attorney General, and Tiare B. Smiley, Special Deputy Attorney General. Julius L. Chambers argued the cause for appellees Gingles et al. in both cases. With him on the brief were Anita S. Hodgkiss, Adam Stein, James E. Ferguson II, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Jacqueline A. Berrien.Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Beth S. Brinkmann, Steven H. Rosenbaum, and Miriam R. Eisenstein. tCHIEF JUSTICE REHNQUIST delivered the opinion of the Court.This suit is here for a second time. In Shaw v. Reno, 509 U. S. 630 (1993) (Shaw 1), we held that plaintiffs whose complaint alleged that the deliberate segregation of voters into separate and bizarre-looking districts on the basis of race stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. We remanded the case for further consideration by the District Court. That court held that the North Carolina redistricting plan did classifyt Anthony T. Caso and Deborah J. La Fetra filed a brief for the Pacific Legal Foundation urging reversal.Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, Steven R. Shapiro, Paul C. Saunders, Herbert J. Hansell, Barbara R. Arnwine, Thomas J. Henderson, and Brenda Wright; and for the North Carolina Legislative Black Caucus et al. by Pamela S. Karlan and Eben Moglen.A. Leon Higginbotham, Jr., filed a brief for the Congressional Black Caucus as amicus curiae.902voters by race, but that the classification survived strict scrutiny and therefore did not offend the Constitution. We now hold that the North Carolina plan does violate the Equal Protection Clause because the State's reapportionment scheme is not narrowly tailored to serve a compelling state interest.The facts are set out in detail in our prior opinion, and we shall only summarize them here. After the 1990 census, North Carolina's congressional delegation increased from 11 to 12 members. The State General Assembly adopted a reapportionment plan, Chapter 601, that included one majority-black district, District 1, located in the northeastern region of the State. 1991 N. C. Sess. Laws, ch. 60l. The legislature then submitted the plan to the Attorney General of the United States for preclearance under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c (1988 ed.). The Assistant Attorney General for Civil Rights, acting on the Attorney General's behalf, objected to the proposed plan because it failed "to give effect to black and Native American voting strength" in "the south-central to southeastern part of the state" and opined that the State's reasons for not creating a second majorityminority district appeared "to be pretextual." App. 151153. Duly chastened, the legislature revised its districting scheme to include a second majority-black district. 1991 N. C. Extra Sess. Laws, ch. 7. The new plan, Chapter 7, located the minority district, District 12, in the north-central or Piedmont region, not in the south-central or southeastern region identified in the Justice Department's objection letter. The Attorney General nonetheless precleared the revised plan.By anyone's measure, the boundary lines of Districts 1 and 12 are unconventional. A map portrays the districts' deviance far better than words, see the Appendix to the opinion of the Court in Shaw I, supra, but our prior opinion describes them as follows:903"The first of the two majority-black districts ... is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with finger-like extensions, it reaches far into the southern-most part of the State near the South Carolina border ...."The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the [Interstate]-85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas 'until it gobbles in enough enclaves of black neighborhoods.'" Shaw I, supra, at 635-636 (citation omitted).Five North Carolinians commenced the present action in the United States District Court for the Eastern District of North Carolina against various state officials.1 Following our reversal of the District Court's dismissal of their complaint in Shaw I, the District Court allowed a number of individuals to intervene, 11 on behalf of the plaintiffs and 22 for the defendants. After a 6-day trial, the District Court unanimously found "that the Plan's lines were deliberately drawn to produce one or more districts of a certain racial composition." 861 F. Supp. 408, 417, 473-474 (1994). A majority of the court held that the plan was constitutional, nonetheless, because it was narrowly tailored to further the State's compelling interests in complying with §§ 2 and 5 of the Voting Rights Act, 42 U. S. C. §§ 1973, 1973c. 861 F. Supp., at 474. The dissenting judge disagreed with that portion of the judgment. We noted probable jurisdiction. 515 U. S. 1172 (1995).1 The complaint also named the Attorney General of the United States and the Assistant Attorney General for the Civil Rights Division as defendants. The District Court granted the federal officials' motion to dismiss, Shaw v. Barr, 808 F. Supp. 461 (EDNC 1992).904As a preliminary matter, appellees challenge appellants' standing to continue this lawsuit. In United States v. Hays, 515 U. S. 737 (1995), we recognized that a plaintiff who resides in a district which is the subject of a racialgerrymander claim has standing to challenge the legislation which created that district, but that a plaintiff from outside that district lacks standing absent specific evidence that he personally has been subjected to a racial classification. Two appellants, Ruth Shaw and Melvin Shimm, live in District 12 and thus have standing to challenge that part of Chapter 7 which defines District 12. See Miller v. Johnson, 515 U. S. 900, 909 (1995). The remaining appellants do not reside in District 1, however, and they have not provided specific evidence that they personally were assigned to their voting districts on the basis of race. Therefore, we conclude that only Shaw and Shimm have standing and only with respect to District 12.2We explained in Miller v. Johnson that a racially gerrymandered districting scheme, like all laws that classify citizens on the basis of race, is constitutionally suspect. Id., at 904-905; see also Shaw I, 509 U. S., at 657; Adarand Constructors, Inc. v. Pena, 515 U. S. 200 (1995). This is true whether or not the reason for the racial classification is be-2JUSTICE STEVENS would dismiss the complaint for a lack of standing.Post, at 921-923. Here, as in other places in his dissent, JUSTICE STEVENS' disagreement is more with the Court's prior decisions in Shaw I, 509 U. S. 630 (1993), United States v. Hays, 515 U. S. 737 (1995), and Miller v. Johnson, 515 U. S. 900 (1995), than with this decision. JUSTICE STEVENS challenged the Court's standing analysis and its finding of cognizable injury in both Hays, supra, at 751 (STEVENS, J., concurring in judgment), and Miller, supra, at 929-931 (STEVENS, J., dissenting), and both Justice White and JUSTICE SOUTER advanced many of the same arguments in Shaw I. See Shaw I, 509 U. S., at 659-674 (White, J., dissenting); id., at 680-687, and n. 9 (SOUTER, J., dissenting). Their position has been repeatedly rejected by the Court. See id., at 644-652; Miller, supra, at 909; and Hays, supra, at 744-745.905nign or the purpose remedial. Shaw I, supra, at 642-643, 653; Adarand, supra, at 228-229. Applying traditional equal protection principles in the voting-rights context is "a most delicate task," Miller, supra, at 905, however, because a legislature may be conscious of the voters' races without using race as a basis for assigning voters to districts. Shaw I, supra, at 645-646; Miller, 515 U. S., at 916. The constitutional wrong occurs when race becomes the "dominant and controlling" consideration. Id., at 911, 915-916.The plaintiff bears the burden of proving the race-based motive and may do so either through "circumstantial evidence of a district's shape and demographics" or through "more direct evidence going to legislative purpose." Id., at 916. After a detailed account of the process that led to enactment of the challenged plan, the District Court found that the General Assembly of North Carolina "deliberately drew" District 12 so that it would have an effective voting majority of black citizens. 861 F. Supp., at 473.Appellees urge upon us their view that this finding is not phrased in the same language that we used in our opinion in Miller v. Johnson, supra, where we said that a plaintiff must show "that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." Id., at 916.The District Court, of course, did not have the benefit of our opinion in Miller at the time it wrote its opinion. While it would have been preferable for the court to have analyzed the case in terms of the standard laid down in Miller, that was not possible. This circumstance has no consequence here because we think that the District Court's findings, read in the light of the evidence that it had before it, comport with the Miller standard.First, the District Court had evidence of the district's shape and demographics. The court observed "the obvious fact" that the district's shape is "highly irregular and geo-906graphically non-compact by any objective standard that can be conceived." 861 F. Supp., at 469. In fact, the serpentine district has been dubbed the least geographically compact district in the Nation. App. 332.The District Court also had direct evidence of the legislature's objective. The State's submission for preclearance expressly acknowledged that Chapter 7's "overriding purpose was to comply with the dictates of the Attorney General's December 18, 1991 letter and to create two congressional districts with effective black voting majorities." App. 162 (emphasis added). This admission was confirmed by Gerry Cohen, the plan's principal draftsman, who testified that creating two majority-black districts was the "principal reason" for Districts 1 and 12. Id., at 675; Tr. 514. Indeed, appellees in their first appearance before the District Court "formally concede[d] that the state legislature deliberately created the two districts in a way to assure black-voter majorities," Shaw v. Barr, 808 F. Supp. 461, 470 (EDNC 1992), and that concession again was credited by the District Court on remand, 861 F. Supp., at 473-474. See also Shaw I, supra, at 666 (White, J., dissenting) ("The State has made no mystery of its intent, which was to respond to the Attorney General's objections by improving the minority group's prospects of electing a candidate of its choice" (citation omitted)). Here, as in Miller, "we fail to see how the District Court could have reached any conclusion other than that race was the predominant factor in drawing [the challenged district]." Miller, supra, at 918.In his dissent, JUSTICE STEVENS argues that strict scrutiny does not apply where a State "respects" or "compl[ies] with traditional districting principles." Post, at 931932 ("[R]ace-based districting which respects traditional districting principles does not give rise to constitutional suspicion"), post, at 932 ("Miller demonstrates that although States may avoid strict scrutiny by complying with traditional districting principles ... "). That, however, is not the907standard announced and applied in Miller,3 where we held that strict scrutiny applies when race is the "predominant" consideration in drawing the district lines such that "the legislature subordinate[s] traditional race-neutral districting principles ... to racial considerations." Miller, supra, at 916. (JUSTICE STEVENS articulates the correct standard in his dissent, post, at 930, but he fails to properly apply it.) The Miller standard is quite different from the one that JusTICE STEVENS advances, as an examination of the dissent's reasoning demonstrates. The dissent explains that "two race-neutral, traditional districting criteria" were at work in determining the shape and placement of District 12, and from this suggests that strict scrutiny should not apply. Post, at 936-939. We do not quarrel with the dissent's claims that, in shaping District 12, the State effectuated its interest in creating one rural and one urban district, and that partisan politicking was actively at work in the districting process. That the legislature addressed these interests does not in any way refute the fact that race was the legislature's predominant consideration. Race was the criterion that, in the State's view, could not be compromised; respecting communities of interest and protecting Democratic incumbents came into play only after the race-based decision had been made.Racial classifications are antithetical to the Fourteenth Amendment, whose "central purpose" was "to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. Florida, 379 U. S. 184, 192 (1964);3JUSTICE STEVENS in dissent incorrectly reads Miller as demonstrating that "although States may avoid strict scrutiny by complying with traditional districting principles, they may not do so by proffering pretextual, race-neutral explanations." Post, at 932. Miller plainly states that although "compliance with 'traditional districting principles such as compactness, contiguity, and respect for political subdivisions' may well suffice to refute a claim of racial gerrymandering," a State cannot make such a refutation where "those factors were subordinated to racial objectives." Miller, 515 U. S., at 919 (citation omitted) (emphasis added).908Richmond v. J. A. Croson Co., 488 U. S. 469, 491 (1989) (opinion of O'CONNOR, J.) ("[T]he Framers of the Fourteenth Amendment ... desired to place clear limits on the States' use of race as a criterion for legislative action, and to have the federal courts enforce those limitations"). While appreciating that a racial classification causes "fundamental injury" to the "individual rights of a person," Goodman v. Lukens Steel Co., 482 U. S. 656, 661 (1987), we have recognized that, under certain circumstances, drawing racial distinctions is permissible where a governmental body is pursuing a "compelling state interest." A State, however, is constrained in how it may pursue that end: "[T]he means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose." Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280 (1986) (opinion of Powell, J.). North Carolina, therefore, must show not only that its redistricting plan was in pursuit of a compelling state interest, but also that "its districting legislation is narrowly tailored to achieve [that] compelling interest." Miller, 515 U. S., at 920.Appellees point to three separate compelling interests to sustain District 12: to eradicate the effects of past and present discrimination; to comply with § 5 of the Voting Rights Act; and to comply with § 2 of that Act. We address each in turn.44JUSTICE STEVENS in dissent discerns three reasons that he believes "may have motivated" the legislators to favor the creation of the two minority districts and that he believes together amount to a compelling state interest. Post, at 941. As we explain below, a racial classification cannot withstand strict scrutiny based upon speculation about what "may have motivated" the legislature. To be a compelling interest, the State must show that the alleged objective was the legislature's "actual purpose" for the discriminatory classification, see Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 730, and n. 16 (1982), and the legislature must have had a strong basis in evidence to support that justification before it implements the classification. See infra, at 910. Even if the proper factual basis existed, we believe that the three reasons JUSTICE STEVENS prof-909A State's interest in remedying the effects of past or present racial discrimination may in the proper case justify a government's use of racial distinctions. Croson, 488 U. S., at 498-506. For that interest to rise to the level of a compelling state interest, it must satisfy two conditions. First, the discrimination must be "'identified discrimination.'" Id., at 499, 500, 505, 507, 509. "While the States and their subdivisions may take remedial action when they possess evidence" of past or present discrimination, "they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief." Id., at 504. A generalized assertion of past discrimination in a particular industry or region is not adequate because it "provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy." Id., at 498 (opinion of O'CONNOR, J.). Accordingly, an effort to alleviate thefers, separately or combined, would not amount to a compelling interest. First, the dissent seems to acknowledge that its initial reason-the "sorry history of race relations in North Carolina," post, at 941-did not itself drive the decision to create the minority districts, presumably for the reasons we discuss infra, at 910. The dissent contends next that an "acceptable reason for creating a second majority-minority district" was the "State's interest in avoiding the litigation that would have been necessary to overcome the Attorney General's objection" under § 5. Post, at 942. If this were true, however, Miller v. Johnson would have been wrongly decided because there the Court rejected the contention that complying with the Justice Department's preclearance objection could be a compelling interest. Miller, supra, at 921-922. It necessarily follows that avoiding the litigation required to overcome the Department's objection could not be a compelling interest. The dissent's final reason-"the interest in avoiding the expense and unpleasantness of [§ 2] litigation" "regardless of the possible outcome of [that] litigation," post, at 943-sweeps too broadly. We assume, arguendo, that a State may have a compelling interest in complying with the properly interpreted Voting Rights Act. Infra, at 915. But a State must also have a "strong basis in evidence," see Shaw I, 509 U. S., at 656 (quoting Richmond v. J. A. Croson Co., 488 U. S. 469, 500 (1989)), for believing that it is violating the Act. It has no such interest in avoiding meritless lawsuits.910effects of societal discrimination is not a compelling interest. Wygant, supra, at 274-275, 276, 288.5 Second, the institution that makes the racial distinction must have had a "strong basis in evidence" to conclude that remedial action was necessary, "before it embarks on an affirmative-action program," 476 U. S., at 277 (plurality opinion) (emphasis added).In this suit, the District Court found that an interest in ameliorating past discrimination did not actually precipitate the use of race in the redistricting plan. While some legislators invoked the State's history of discrimination as an argument for creating a second majority-black district, the court found that these members did not have enough voting power to have caused the creation of the second district on that basis alone. 861 F. Supp., at 471.Appellees, to support their claim that the plan was drawn to remedy past discrimination, rely on passages from two reports prepared for this litigation by a historian and a social scientist. Brief for Appellees Gingles et al. 40-44, citing H. Watson, Race and Politics in North Carolina, 1865-1994, App. 610-624 (excerpts), and J. Kousser, After 120 Years:Redistricting and Racial Discrimination in North Carolina, id., at 602-609 (excerpts). Obviously these reports, both dated March 1994, were not before the General Assembly when it enacted Chapter 7. And there is little to suggest that the legislature considered the historical events and social-science data that the reports recount, beyond what individual members may have recalled from personal experience. We certainly cannot say on the basis of these reports that the District Court's findings on this point were clearly erroneous.5For examples of this limitation in application see Wygant, 476 U. S., at 274-276 (where a plurality of the Court concluded that remedying societal discrimination and promoting role models for students was not a compelling interest); Richmond v. J. A. Croson Co., supra, at 498-506.911Appellees devote most of their efforts to arguing that the race-based redistricting was constitutionally justified by the State's duty to comply with the Voting Rights Act. The District Court agreed and held that compliance with §§ 2 and 5 of the Act could be, and in this suit was, a compelling state interest. 861 F. Supp., at 437. In Miller, we expressly left open the question whether under the proper circumstances compliance with the Voting Rights Act, on its own, could be a compelling interest. Miller, 515 U. S., at 921 ("[w]hether or not in some cases compliance with the Voting Rights Act, standing alone, can provide a compelling interest independent of any interest in remedying past discrimination ... "). Here once again we do not reach that question because we find that creating an additional majority-black district was not required under a correct reading of § 5 and that District 12, as drawn, is not a remedy narrowly tailored to the State's professed interest in avoiding § 2 liability.With respect to § 5 of the Voting Rights Act, we believe our decision in Miller forecloses the argument, adopted by the District Court, that failure to engage in the race-based districting would have violated that section. In Miller, we considered an equal protection challenge to Georgia's Eleventh Congressional District. As appellees do here, Georgia contended that its redistricting plan was necessary to meet the Justice Department's preclearance demands. The Justice Department had interposed an objection to a prior plan that created only two majority-minority districts. We held that the challenged congressional plan was not required by a correct reading of § 5 and therefore compliance with that law could not justify race-based districting. Id., at 921 ("[C]ompliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws").912We believe the same conclusion must be drawn here.North Carolina's first plan, Chapter 601, indisputably was ameliorative, having created the first majority-black district in recent history. Thus, that plan, "'even if [it] fall[s] short of what might be accomplished in terms of increasing minority representation,'" "'cannot violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.'" Id., at 924, quoting Days, Section 5 and the Role of the Justice Department, in B. Grofman & C. Davidson, Controversies in Minority Voting 56 (1992), and Beer v. United States, 425 U. S. 130, 141 (1976).As in Miller, the United States relies on the purpose prong of § 5 to explain the Department's preclearance objections, alleging that North Carolina, for pretextual reasons, did not create a second majority-minority district. Brief for United States as Amicus Curiae 24. We again find the Government's position "insupportable." Miller, supra, at 924. The General Assembly, in its submission filed with Chapter 601, explained why it did not create a second minority district; among its goals were "to keep precincts whole, to avoid dividing counties into more than two districts, and to give black voters a fair amount of influence by creating at least one district that was majority black in voter registration and by creating a substantial number of other districts in which black voters would exercise a significant influence over the choice of congressmen." App.142. The submission also explained in detail the disadvantages of other proposed plans. See, e. g., id., at 139, 140, 143 (Balmer Congress 6.2 Plan's "[s]econd 'minority' district did not have effective minority voting majority" because it "depended on the cohesion of black and Native American voters, and no such pattern was evident" and "this plan dramatically decreased black influence" in four other districts). A memorandum, sent to the Department of Justice on behalf of the legislators in charge of the redistricting process, provided still further reasons for the State's decision not to draw two minority districts as913urged by various interested parties. App. 94-138; 861 F. Supp., at 480-481, n. 9 (Voorhees, C. J., dissenting). We have recognized that a "State's policy of adhering to other districting principles instead of creating as many majorityminority districts as possible does not support an inference that the plan 'so discriminates on the basis of race or color as to violate the Constitution,' and thus cannot provide any basis under § 5 for the Justice Department's objection." Miller, supra, at 924 (citations omitted).It appears that the Justice Department was pursuing in North Carolina the same policy of maximizing the number of majority-black districts that it pursued in Georgia. See Miller, supra, at 924-925, and n. The two States underwent the preclearance processes during the same time period and the objection letters they received from the Civil Rights Division were substantially alike. App. in Miller v. Johnson, O. T. 1994, No. 94-631, pp. 99-107. A North Carolina legislator recalled being told by the Assistant Attorney General that "you have twenty-two percent black people in this State, you must have as close to twenty-two percent black Congressmen, or black Congressional Districts in this State." App. 201. See also Deposition of Senator Dennis Winner, id., at 698. We explained in Miller that this maximization policy is not properly grounded in § 5 and the Department's authority thereunder. 515 U. S., at 925 ("In utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld"). We again reject the Department's expansive interpretation of § 5. Id., at 926927. Cf. Johnson v. De Grandy, 512 U. S. 997, 1017 (1994) ("Failure to maximize cannot be the measure of § 2").66 The United States attempts to distinguish this suit from Miller by relying on the District Court's finding that North Carolina conducted "its own independent reassessment" of Chapter 601 and found "the Department's objection was legally and factually supportable." Brief for914With respect to § 2, appellees contend, and the District Court found, that failure to enact a plan with a second majority-black district would have left the State vulnerable to a lawsuit under this section. Our precedent establishes that a plaintiff may allege a § 2 violation in a single-member district if the manipulation of districting lines fragments politically cohesive minority voters among several districts or packs them into one district or a small number of districts, and thereby dilutes the voting strength of members of the minority population. Id., at 1007. To prevail on such a claim, a plaintiff must prove that the minority group "is sufficiently large and geographically compact to constitute a majority in a single-member district"; that the minority group "is politically cohesive"; and that "the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Thornburg v. Gingles, 478 U. S. 30, 50-51 (1986); Growe v. Emison, 507 U. S. 25 (1993) (recognizing that the three Gingles preconditions would apply to a § 2 challenge to a single-member district). A court must also consider all other relevant circumstances and must ultimately find based on the totality of those circumstances that members of a protected class "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). See De Grandy, supra, at 1010-1012.United States as Amicus Curiae 25; 861 F. Supp. 408, 474 (1994) (case below). The "reassessment" was the legislature's determination that it may be susceptible to a §2 challenge. Id., at 464-465. Even if the General Assembly properly reached that conclusion, we doubt that a showing of discriminatory effect under § 2, alone, could support a claim of discriminatory purpose under § 5. Even if discriminatory purpose could be shown, the means of avoiding such a violation could be race neutral, and so we also doubt that the prospect of violating the purpose prong of § 5 could justify a race-based redistricting plan such as the one implemented by North Carolina.915We assume, arguendo, for the purpose of resolving this suit, that compliance with § 2 could be a compelling interest, and we likewise assume, arguendo, that the General Assembly believed a second majority-minority district was needed in order not to violate § 2, and that the legislature at the time it acted had a strong basis in evidence to support that conclusion. We hold that even with the benefit of these assumptions, the North Carolina plan does not survive strict scrutiny because the remedy-the creation of District 12is not narrowly tailored to the asserted end.Although we have not always provided precise guidance on how closely the means (the racial classification) must serve the end (the justification or compelling interest), we have always expected that the legislative action would substantially address, if not achieve, the avowed purpose. See Miller, supra, at 922 ("[T]he judiciary retains an independent obligation ... to ensure that the State's actions are narrowly tailored to achieve a compelling interest"); Wygant, 476 U. S., at 280 (opinion of Powell, J.) ("[T]he means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose") id., at 278, n. 5 (opinion of Powell, J.) (race-based state action must be remedial); Shaw I, 509 U. S., at 655 ("A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression"). Cf. Missouri v. Jenkins, 515 U. S. 70, 88 (1995) (With regard to the remedial authority of a federal court: "'The remedy must ... be related to "the condition alleged to offend the Constitution .... "'" and must be "'remedial in nature, that is, it must be designed as nearly as possible "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct"''') (quoting Milliken v. Bradley, 433 U. S. 267, 280-281 (1977), in turn quoting Milliken v. Bradley, 418 U. S. 717, 738, 746 (1974)). Where, as916here, we assume avoidance of § 2 liability to be a compelling state interest, we think that the racial classification would have to realize that goal; the legislative action must, at a minimum, remedy the anticipated violation or achieve compliance to be narrowly tailored.7District 12 could not remedy any potential § 2 violation.As discussed above, a plaintiff must show that the minority group is "geographically compact" to establish § 2 liability. No one looking at District 12 could reasonably suggest that the district contains a "geographically compact" population of any race. See 861 F. Supp., at 469. Therefore where that district sits, "there neither has been a wrong nor can be a remedy." Growe, supra, at 41 (footnote omitted).8Appellees do not defend District 12 by arguing that the district is geographically compact, however. Rather they contend, and a majority of the District Court agreed, 861 F. Supp., at 454-455, n. 50, that once a legislature has a strong basis in evidence for concluding that a § 2 violation exists in the State, it may draw a majority-minority district anywhere, even if the district is in no way coincident with7We do not suggest that where the governmental interest is eradicating the effects of past discrimination the race-based action necessarily would have to achieve fully its task to be narrowly tailored.8JUSTICE STEVENS in dissent argues that it does not matter that District 12 could not possibly remedy a § 2 violation because he believes the State's plan would avoid §2liability. Post, at 946-947. As support, JusTICE STEVENS relies on our decision in Johnson v. De Grandy, 512 U. S. 997 (1994), which he reads to say that "a plaintiff cannot make out a prima facie case of vote dilution under § 2 unless he can demonstrate that his proposed plan contains more majority-minority districts than the State's." Post, at 946 (citing De Grandy, supra, at 1008). The dissent's reading is flawed by its omission. In De Grandy, we presumed that the minority districts drawn in the State's plan were lawfully drawn and, indeed, we expressly stated that a vote-dilution claim under § 2 "requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice." De Grandy, supra, at 1008 (emphasis added).917the compact Gingles district, as long as racially polarized voting exists where the district is ultimately drawn. Tr. of Oral Arg. 50-51, 54-56.We find this position singularly unpersuasive. We do not see how a district so drawn would avoid § 2 liability. If a § 2 violation is proved for a particular area, it flows from the fact that individuals in this area "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U. S. C. § 1973(b). The vote-dilution injuries suffered by these persons are not remedied by creating a safe majorityblack district somewhere else in the State. For example, if a geographically compact, cohesive minority population lives in south-central to southeastern North Carolina, as the Justice Department's objection letter suggested, District 12 that spans the Piedmont Crescent would not address that § 2 violation. The black voters of the south-central to southeastern region would still be suffering precisely the same injury that they suffered before District 12 was drawn. District 12 would not address the professed interest of relieving the vote dilution, much less be narrowly tailored to accomplish the goal.Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not. See § 1973 ("the right of any citizen").99 This does not mean that a § 2 plaintiff has the right to be placed in a majority-minority district once a violation of the statute is shown. States retain broad discretion in drawing districts to comply with the mandate of §2. Voinovich v. Quilter, 507 U. S. 146, 156-157 (1993); Growe v. Emison, 507 U. S. 25, 32-37 (1993).918The United States submits that District 12 does, in fact, incorporate a "substantial portio[n]" of the concentration of minority voters that would have given rise to a § 2 claim. Brief for United States as Amicus Curiae 27. Specifically, the Government claims that "District 12 ... contains the heavy concentration of African Americans in Mecklenburg County, the same urban component included in the second minority opportunity district in some of the alternative plans." Ibid. The portion of District 12 that lies in Mecklenburg County covers not more than 20% of the district. See Exhibit 301 of Plaintiff-Intervenors, Map A, Map 9B. We do not think that this degree of incorporation could mean that District 12 substantially addresses the § 2 violation. We hold, therefore, that District 12 is not narrowly tailored to the State's asserted interest in complying with § 2 of the Voting Rights Act.For the foregoing reasons, the judgment of the District Court isReversed

OCTOBER TERM, 1995SyllabusSHAW ET AL. v. HUNT, GOVERNOR OF NORTH CAROLINA, ET AL.APPEAL FROM THE DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINANo. 94-923. Argued December 5, 1995-Decided June 13, 1996*Earlier in this suit, in Shaw v. Reno, 509 U. S. 630, this Court held that appellants, whose complaint alleged that North Carolina had deliberately segregated voters by race when it created two bizarre-looking majority-black congressional districts, Districts 1 and 12, had stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. The Court remanded for further consideration by the District Court, which held that, although the North Carolina redistricting plan did classify voters by race, the classification survived strict scrutiny, and therefore was constitutional, because it was narrowly tailored to further the State's compelling interests in complying with §§ 2 and 5 of the Voting Rights Act of 1965.Held:1. Only the two appellants who live in District 12 have standing to continue this lawsuit, and only with respect to that district. The remaining appellants, who do not reside in either of the challenged districts and have not provided specific evidence that they personally were assigned to their voting districts on the basis of race, lack standing. See United States v. Hays, 515 U. S. 737. P. 904.2. The North Carolina plan violates the Equal Protection Clause because the State's reapportionment scheme is not narrowly tailored to serve a compelling state interest. Pp. 904-918.(a) Strict scrutiny applies when race is the "predominant" consideration in drawing district lines such that "the legislature subordinates race-neutral districting principles ... to racial considerations." Miller v. Johnson, 515 U. S. 900, 916. The District Court's finding that the North Carolina General Assembly "deliberately drew" District 12 so that it would have an effective voting majority of black citizens, when read in the light of the evidence as to the district's shape and demographics and the legislature's objective, comports with the Miller standard. In order to justify its redistricting plan, therefore, the State must show not only that the plan was in pursuit of a compel-*Together with No. 94-924, Pope et al. v. Hunt, Governor of North Carolina, et al., also on appeal from the same court.900Syllabusling state interest, but also that it was narrowly tailored to achieve that interest. Id., at 920. Pp. 904-908.(b) None of the three separate "compelling interests" to which appellees point suffices to sustain District 12. First, the District Court found that the State's claimed interest in eradicating the effects of past discrimination did not actually precipitate the use of race in the redistricting plan, and the record does not establish that that finding was clearly erroneous. Second, the asserted interest in complying with § 5 of the Voting Rights Act did not justify redistricting here, since creating an additional majority-black district, as urged by the Justice Department before it granted preclearance, was not required under a correct reading of § 5. See Miller, 515 U. S., at 921. This Court again rejects the Department's expansive reading of § 5 and of its own authority thereunder as requiring States to maximize the number of majorityminority districts wherever possible. See, e. g., id., at 925. Third, District 12, as drawn, is not a remedy narrowly tailored to the State's professed interest in avoiding liability under § 2 of the Act, which, inter alia, prohibits dilution of the voting strength of members of a minority group. District 12 could not remedy any potential § 2 violation, since the minority group must be shown to be "geographically compact" to establish §2 liability, see, e. g., Thornburg v. Gingles, 478 U. S. 30, 50, and it cannot reasonably be suggested that District 12 contains a "geographically compact" population of any race. Appellees are singularly unpersuasive when they argue that a majority-minority district may be drawn anywhere if there is a strong basis in evidence for concluding that a § 2 violation exists somewhere in the State. A district so drawn could not avoid § 2 liability, which targets vote-dilution injury to individuals in a particular area, not to the minority as a group. Just as in Miller, this Court does not here reach the question whether compliance with the Act, on its own, can be a compelling state interest under the proper circumstances. pp. 908-918.861 F. Supp. 408, reversed.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, in which GINSBURG and BREYER, JJ., joined as to Parts II, III, IV, and V, post, p. 918. SOUTER, J., filed a dissenting statement, in which GINSBURG and BREYER, JJ., joined, post, p. 951.Robinson O. Everett argued the cause and filed briefs for appellants in No. 94-923.901Full Text of Opinion

1973_73-477

MR. JUSTICE POWELL delivered the opinion of the Court.The issue in this case is whether a person arrested and held for trial under a prosecutor's information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty.IIn March, 1971 respondents Pugh and Henderson were arrested in Dade County, Fla. Each was charged with several offenses under a prosecutor's information. [Footnote 1] Pugh was denied bail because one of the charges against him carried a potential life sentence, and Henderson remained in custody because he was unable to post a $4,500 bond.In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information, without a prior preliminary hearing and without obtaining leave of court. Fla.Rule Crim.Proc. 3.140(a); State v. Hernandez, 217 So. 2d 109 (Fla.1968); Di Bona v. State, 121 So. 2d 192 (Fla.App. 1960). At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. Fla.Rule Crim.Proc. 1.122 (before amendment in 1972). Page 420 U. S. 106 But the Florida courts had held that the filing of an information foreclosed the suspect's right to a preliminary hearing. See Stat ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.1972). [Footnote 2] They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. See Sullivan v. State ex rel. McCrory, 49 So. 2d 794, 797 (Fla.1951). The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days, Fla.Stat.Ann. § 907.045 (1973), [Footnote 3] and arraignment, which the District Court found was often delayed a month or more after arrest. Pugh v. Rainwater, 332 F. Supp. 1107, 1110 (SD Fla.1971). [Footnote 4] As a result, a person charged by information could be detained for a substantial period solely on the decision of a prosecutor. Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District Page 420 U. S. 107 Court, [Footnote 5] claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. [Footnote 6] Respondents Turner and Faul, also in custody under informations, subsequently intervened. [Footnote 7] Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants. [Footnote 8]After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. Pugh v. Rainwater, supra. The court certified the case as a class action under Fed.Rule Civ.Proc. 23(b)(2), and held that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause. The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable Page 420 U. S. 108 cause for further detention. [Footnote 9] It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information.The defendants submitted a plan prepared by Sheriff E. Wilson Purdy, and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. 336 F. Supp. 490 (SD Fla.1972). Upon arrest, the accused would be taken before a magistrate for a "first appearance hearing." The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a "preliminary hearing," to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The order provided sanctions for failure to hold the hearing at prescribed times. At the "preliminary hearing," the accused would be entitled to counsel, and he would be allowed to confront and cross-examine adverse witnesses, to summon favorable witnesses, and to have a transcript made on request. If the magistrate found no probable cause, the accused would be discharged. He then could not be charged with the same offense by complaint or information, but only by indictment returned within 30 days. Page 420 U. S. 109The Court of Appeals for the Fifth Circuit stayed the District Court's order pending appeal, but, while the case was awaiting decision, the Dade County judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings state-wide, and the parties agreed that the District Court should direct its inquiry to the new rules, rather than the Dade County procedures.Under the amended rules, every arrested person must be taken before a judicial officer within 24 hours. Fla.Rule Crim.Proc. 3.130(b). This "first appearance" is similar to the "first appearance hearing" ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable cause. The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment. Rule 3.131; see In re Rule 3.131(b), Florida Rules of Criminal Procedure, 289 So. 2d 3 (Fla.1974).In a supplemental opinion, the District Court held that the amended rules had not answered the basic constitutional objection, since a defendant charged by information still could be detained pending trial without a judicial determination of probable cause. 355 F. Supp. 1286 (SD Fla.1973). Reaffirming its original ruling, the District Court declared that the continuation of this practice was unconstitutional. [Footnote 10] The Court of Appeals Page 420 U. S. 110 affirmed, 483 F.2d 778 (1973), modifying the District Court's decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable as long as it was provided to all defendants in custody pending trial. Id. at 788-789.State Attorney Gerstein petitioned for review, and we granted certiorari because of the importance of the issue. [Footnote 11] Page 420 U. S. 111 414 U.S. 1062 (1973). We affirm in part and reverse in part.IIAs framed by the proceedings below, this case presents two issues: whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention, and, if so, whether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution.ABoth the standards and procedures for arrest and detention have been derived from the Fourth Amendment and its common law antecedents. See Cupp v. Murphy, 412 U. S. 291, 412 U. S. 294-295 (1973); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Burford, 3 Cranch 448 (1806). The standard for arrest is probable cause, defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Page 420 U. S. 112 Beck v. Ohio, 379 U. S. 89, 379 U. S. 91 (1964). See also Henry v. United States, 361 U. S. 98 (1959); Brinegar v. United States, 338 U. S. 160, 338 U. S. 175-176 (1949). This standard, like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime."These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice."Id. at 338 U. S. 176.To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible. The classic statement of this principle appears in Johnson v. United States, 333 U. S. 10, 333 U. S. 13-14 (1948):"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection Page 420 U. S. 113 consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."See also Terry v. Ohio, 392 U. S. 1, 392 U. S. 222 (1968). [Footnote 12]Maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, but such a requirement would constitute all intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, Beck v. Ohio, supra, at 379 U. S. 96; Wong Sun v. United States, 371 U. S. 471, 371 U. S. 479-482 (1963), it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. See Ker v. California, 374 U. S. 23 (1963); Draper v. United States, 358 U. S. 307 (1959); Trupiano v. United States, 334 U. S. 699, 334 U. S. 705 (1948). [Footnote 13]Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification Page 420 U. S. 114 for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972). Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. See, e.g., 18 U.S.C. §§ 3146(a)(2), (5). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.This result has historical support in the common law that has guided interpretation of the Fourth Amendment. See Carroll v. United States, 267 U. S. 132, 267 U. S. 149 (1925). At common law, it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest. 2 M. Hale, Pleas of the Crown 77, 81, 95, 121 (1736); 2 W. Hawkins, Pleas of the Crown 116-117 (4th ed. 1762). See also Kurtz v. Moffitt, 115 U. S. 487, 115 U. S. 498-499 (1885). [Footnote 14] The justice of the peace Page 420 U. S. 115 would "examine" the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody. 1 M. Hale, supra, at 583-586; W. Hawkins, supra at 116-119; 1 J. Stephen, History of the Criminal Law of England 233 (1883). [Footnote 15] The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus. 2 W. Hawkins, supra at 112-115; 1 J. Stephen, supra at 243; see Ex parte Bollman, 4 Cranch at 8 U. S. 97-101. This practice furnished the model for criminal procedure in America immediately following the adoption of the Page 420 U. S. 116 Fourth Amendment, see Ex parte Bollman, supra; [Footnote 16] Ex parte Burford, 3 Cranch 448 (1806); United States v. Hamilton, 3 Dall. 17 (1795), and there are indications that the Framers of the Bill of Rights regarded it as a model for a "reasonable" seizure. See Draper v. United States, 358 U.S. at 358 U. S. 317-320 (DOUGLAS, J., dissenting). [Footnote 17]BUnder the Florida procedures challenged here, a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination. [Footnote 18] Petitioner defends this practice on the Page 420 U. S. 117 ground that the prosecutor's decision to file an information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial. Although a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment, standing alone, meets the requirements of the Fourth Amendment. Indeed, we think the Court's previous decisions compel disapproval of the Florida procedure. In Albrecht v. United States, 273 U. S. 1, 273 U. S. 5 (1927), the Court held that an arrest warrant issued solely upon a United States Attorney's information was invalid because the accompanying affidavits were defective. Although the Court's opinion did not explicitly state that the prosecutor's official oath could not furnish probable cause, that conclusion was implicit in the judgment that the arrest was illegal under the Fourth Amendment. [Footnote 19] More recently, in Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 449-453 (1971), the Court held that a prosecutor's responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate. We reaffirmed that principle in Shadwick Page 420 U. S. 118 v. City of Tampa, 407 U. S. 345 (1972), and held that probable cause for the issuance of an arrest warrant must be determined by someone independent of police and prosecution. See also United States v. United States District Court, 407 U. S. 297, 407 U. S. 317 (1972). [Footnote 20] The reason for this separation of functions was expressed by Mr. Justice Frankfurter in a similar context:"A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not, in itself, an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication."McNabb v. United States, 318 U. S. 332, 318 U. S. 343 (1943).In holding that the prosecutor's assessment of probable Page 420 U. S. 119 cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U. S. 541, 369 U. S. 545 (1962); Lem Woon v. Oregon, 229 U. S. 586 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U. S. 519 (1952); Ker v. Illinois, 119 U. S. 436 (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. 483 F.2d at 786-787. Compare Scarbrough v. Dutton, 393 F.2d 6 (CA5 1968), with Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969).IIIBoth the District Court and the Court of Appeals held that the determination of probable cause must be accompanied by the full panoply of adversary safeguards -- counsel, confrontation, cross-examination, and compulsory process for witnesses. A full preliminary hearing of this sort is modeled after the procedure used in many States to determine whether the evidence justifies going to trial under an information or presenting the case to a grand jury. See Coleman v. Alabama, 399 U. S. 1 (1970); Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 957-967, 996-1000 (4th ed.1974). The standard of proof required of the prosecution is usually referred to as "probable cause," but in some jurisdictions it may approach a prima facie case of guilt. Page 420 U. S. 120 ALI, Model Code of Pre-arraignment Procedure, Commentary on Art. 330, pp. 91 (Tent.Draft No. 5, 1972). When the hearing takes this form, adversary procedures are customarily employed. The importance of the issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination. This kind of hearing also requires appointment of counsel for indigent defendants. Coleman v. Alabama, supra. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes. See ALI, Model Code of Prearraignment Procedure, supra, at 334.These adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. [Footnote 21] That standard -- probable cause to believe the suspect has committed a crime -- traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof."Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common law tradition, Page 420 U. S. 121 to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.""* * * *" "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."Brinegar v. United States, 338 U.S. at 338 U. S. 174-175. Cf. McCray v. Illinois, 386 U. S. 300 (1967).The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination, but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). [Footnote 22] This is not to say that confrontation and Page 420 U. S. 122 cross-examination might not enhance the reliability of probable cause determinations in some case. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause. [Footnote 23]Because of its limited function and its nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel. The Court has identified as "critical stages" those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. Coleman v. Alabama, 399 U. S. 1 (1970); United States v. Wade, 388 U. S. 218, 388 U. S. 226-227 (1967). In Coleman v. Alabama, where the Court held that a preliminary hearing was a critical stage of an Alabama prosecution, the majority and concurring opinions identified two critical factors that distinguish the Alabama preliminary hearing from the probable cause determination required by the Fourth Amendment. First, Page 420 U. S. 123 under Alabama law, the function of the preliminary hearing was to determine whether the evidence justified charging the suspect with an offense. A finding of no probable cause could mean that he would not be tried at all. The Fourth Amendment probable cause determination is addressed only to pretrial custody. To be sure, pretrial custody may affect to some extent the defendant's ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman. Second, Alabama allowed the suspect to confront and cross-examine prosecution witnesses at the preliminary hearing. The Court noted that the suspect's defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses' testimony. This consideration does not apply when the prosecution is not required to produce witnesses for cross-examination.Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, [Footnote 24] Page 420 U. S. 124 see McNabb v. United States, 318 U.S. at 318 U. S. 342-344, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. [Footnote 25] Whatever Page 420 U. S. 125 procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, [Footnote 26] and this determination must be made by a judicial officer either before or promptly after arrest. [Footnote 27] Page 420 U. S. 126IVWe agree with the Court of Appeals that the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention, and we accordingly affirm that much of the judgment. As we do not agree that the Fourth Amendment requires the adversary hearing outlined in the District Court's decree, we reverse in part and remand to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGerstein v. Pugh, 420 U.S. 103 (1975)Gerstein v. PughNo. 73-477Argued March 25, 1974Reargued October 21, 1974Decided February 18, 1975420 U.S. 103Syllabus1. The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Accordingly, the Florida procedures challenged here whereby a person arrested without a warrant and charged by information may be jailed or subjected to other restraints pending trial without any opportunity for a probable cause determination, are unconstitutional. Pp. 420 U. S. 111-119.(a) The prosecutor's assessment of probable cause, standing alone, does not meet the requirements of the Fourth Amendment, and is insufficient to justify restraint of liberty pending trial. Pp. 420 U. S. 116-118.(b) The Constitution does not require, however, judicial oversight of the decision to prosecute by information, and a conviction will not be vacated on the ground that the defendant was detained pending trial without a probable cause determination. Pp. 420 U.S. 118-119.2. The probable cause determination, as an initial step in the criminal justice process, may be made by a judicial officer without an adversary hearing. Pp. 420 U. S. 119-125.(a) The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings, and this issue can be determined reliably by the use of informal procedures. Pp. 420 U. S. 120-122.(b) Because of its limited function and its nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel. Pp. 420 U. S. 122-123.483 F.2d 778, affirmed in part, reversed in part, and remanded.POWELL, J., delivered the opinion of the Court, in Parts I and II of which all other Members joined, and in Parts III and IV of which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, in which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined, post, p. 420 U. S. 126. Page 420 U. S. 105

1993_92-780

Fay Clayton argued the cause for petitioners. With her on the briefs were Susan Valentine, Lowell E. Sachnoff, Jack L. Block, Judi A. Lamble, Alan M. Pollack, and Mitchell G. Mandell.Miguel A. Estrada argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and Cynthia A. Young.G. Robert Blakey argued the cause for respondents.Clark D. Forsythe and Thomas Brejcha filed a brief for respondent Scheidler et al. Jay Alan Sekulow, Walter M. Weber, Keith A. Fournier, and Vincent P. McCarthy filed a brief for respondent Terry et al. Craig L. Parshall, John W Whitehead, and Alexis 1. Crow filed a brief for respondent Migliorino (Miller). Paul Benjamin Linton filed a brief for respondent Murphy. **Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Sanford M. Cohen, Assistant Attorney General, and by the Attorneys General for their respective States as follows:Richard Blumenthal of Connecticut, Roland W Burris of Illinois, Michael F. Easley of North Carolina, Stephen D. Rosenthal of Virginia, Hubert H. Humphrey III of Minnesota, and Lee Fisher of Ohio; for the American Medical Association et al. by Jack R. Bierig, Carter G. Phillips, Kirk B. Johnson, and Ann E. Allen; for the National Abortion Federation et al. by Elaine Metlin, Eve W Paul, and Roger K. Evans; for the National Network of Abortion Funds by Kathryn Kolbert; and for the NOW Legal Defense and Education Fund et al. by David I. Goldblatt, Charles S. Sims, Deborah A. Ellis, and Burt Neuborne.Briefs of amici curiae urging affirmance were filed for People for the Ethical Treatment of Animals, Inc., et al. by Edward McGlynn Gaffney, Jr., David Goldberger, and Victor G. Rosenblum; for the Ohio Right to Life Society, Inc., et al. by David F. Forte; and for the Southern Center for Law & Ethics et al. by Albert L. Jordan, Steven T. McFarland, and Bradley P. Jacob.Briefs of amici curiae were filed for the American Civil Liberties Union by Louis M. Bograd and Steven R. Shapiro; and for Focus on the Family by Stephen W Reed and Ronald E. McKinstry.252CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.We are required once again to interpret the provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) chapter of the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968 (1988 ed. and Supp. IV). Section 1962(c) prohibits any person associated with an enterprise from conducting its affairs through a pattern of racketeering activity. We granted certiorari to determine whether RICO requires proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. We hold that RICO requires no such economic motive.IPetitioner National Organization for Women, Inc. (NOW), is a national nonprofit organization that supports the legal availability of abortion; petitioners Delaware Women's Health Organization, Inc. (DWHO), and Summit Women's Health Organization, Inc. (SWHO), are health care centers that perform abortions and other medical procedures. Respondents are a coalition of antiabortion groups called the Pro-Life Action Network (PLAN), Joseph Scheidler and other individuals and organizations that oppose legal abortion, and a medical laboratory that formerly provided services to the two petitioner health care centers.1Petitioners sued respondents in the United States District Court for the Northern District of Illinois, alleging violations of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 et seq., and RICO's §§ 1962(a), (c), and (d), as well as several pendent state-law claims stemming from the activ-1 The other respondents named in the complaint include the following:John Patrick Ryan, Randall A. Terry, Andrew Scholberg, Conrad Wojnar, Timothy Murphy, Monica Migliorino, Vital-Med Laboratories, Inc., ProLife Action League, Inc. (PLAL), Pro-Life Direct Action League, Inc. (PDAL), Operation Rescue, and Project Life.253ities of antiabortion protesters at the clinics. According to respondent Scheidler's congressional testimony, these protesters aim to shut down the clinics and persuade women not to have abortions. See, e. g., Abortion Clinic Violence, Oversight Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 99th Cong., 1st and 2d Sess., 55 (1987) (statement of Joseph M. Scheidler, Executive Director, Pro-Life Action League). Petitioners sought injunctive relief, along with treble damages, costs, and attorney's fees. They later amended their complaint, and pursuant to local rules, filed a "RICO Case Statement" that further detailed the enterprise, the pattern of racketeering, the victims of the racketeering activity, and the participants involved.The amended complaint alleged that respondents were members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity including extortion in violation of the Hobbs Act, 18 U. S. C. § 1951.2 Section 1951(b)(2) defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Petitioners alleged that respondents conspired to use threatened or actual force, violence, or fear to induce clinic employees, doctors, and patients to give up their jobs, give up their economic right to practice medicine, and give up their right to obtain medical services at the clinics. App. 66, Second Amended Complaint , 97. Petitioners claimed that this conspiracy "has injured2 The Hobbs Act, 18 U. S. C. § 1951(a), provides: "Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both." Respondents contend that petitioners are unable to show that their actions violated the Hobbs Act. We do not reach that issue and express no opinion upon it.254the business and/or property interests of the [petitioners]." Id., at 72, , 104. According to the amended complaint, PLAN constitutes the alleged racketeering "enterprise" for purposes of § 1962(c). Id., at 72-73, "107-109.The District Court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(6). Citing Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), it held that since the activities alleged "involve[d] political opponents, not commercial competitors, and political objectives, not marketplace goals," the Sherman Act did not apply. 765 F. Supp. 937, 941 (ND Ill. 1991). It dismissed petitioners' RICO claims under § 1962(a) because the "income" alleged by petitioners consisted of voluntary donations from persons opposed to abortion which "in no way were derived from the pattern of racketeering alleged in the complaint." Ibid. The District Court then concluded that petitioners failed to state a claim under § 1962(c) since "an economic motive requirement exists to the extent that some profit-generating purpose must be alleged in order to state a RICO claim." Id., at 943. Finally, it dismissed petitioners' RICO conspiracy claim under § 1962(d) since petitioners' other RICO claims could not stand.The Court of Appeals affirmed. 968 F.2d 612 (CA7 1992).As to the RICO counts, it agreed with the District Court that the voluntary contributions received by respondents did not constitute income derived from racketeering activities for purposes of § 1962(a). Id., at 625. It adopted the analysis of the Court of Appeals for the Second Circuit in United States v. Ivic, 700 F.2d 51 (1983), which found an "economic motive" requirement implicit in the "enterprise" element of the offense. The Court of Appeals determined that "noneconomic crimes committed in furtherance of non-economic motives are not within the ambit of RICO." 968 F. 2d, at 629. Consequently, petitioners failed to state a claim under § 1962(c). The Court of Appeals also affirmed dismissal of the RICO conspiracy claim under § 1962(d).255We granted certiorari, 508 U. S. 971 (1993), to resolve a conflict among the Courts of Appeals on the putative economic motive requirement of 18 U. S. C. §§ 1962(c) and (d). Compare United States v. Ivic, supra, and United States v. Flynn, 852 F.2d 1045, 1052 (CA8), ("For purposes of RICO, an enterprise must be directed toward an economic goal"), cert. denied, 488 U. S. 974 (1988), with Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342 (CA3) (because the predicate offense does not require economic motive, RICO requires no additional economic motive), cert. denied, 493 U. S. 901 (1989).IIWe first address the threshold question raised by respondents whether petitioners have standing to bring their claim. Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation. Bender v. Williamsport Area School Dist., 475 U. S. 534, 546-547 (1986). Respondents are correct that only DWHO and SWHO, and not NOW; have sued under RICO.3 Despite the fact that the clinics attempted to bring the RICO claim as class actions, DWHO and SWHO must themselves have standing. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976), citing Warth v. Seldin, 422 U. S. 490, 502 (1975). Respondents are wrong, however, in asserting that the complaint alleges no "injury" to DWHO and SWHO "fairly traceable to the defendant's allegedly unlawful conduct." Allen v. Wright, 468 U. S. 737, 751 (1984).3 NOW sought class certification for itself, its women members who use or may use the targeted health centers, and other women who use or may use the services of such centers. The District Court did not certify the class, apparently deferring its ruling until resolution of the motions to dismiss. All pending motions were dismissed as moot when the court granted respondents' motion to dismiss. 765 F. Supp. 937, 945 (ND Ill. 1991).256We have held that "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) (citations omitted). The District Court dismissed petitioners' claim at the pleading stage pursuant to Federal Rule of Civil Procedure 12(b)(6), so their complaint must be sustained if relief could be granted "under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U. S. 69, 73 (1984). DWHO and SWHO alleged in their complaint that respondents conspired to use force to induce clinic staff and patients to stop working and obtain medical services elsewhere. App. 66, Second Amended Complaint' 97. Petitioners claimed that this conspiracy "has injured the business and/or property interests of the [petitioners]." Id., at 72, , 104. In addition, petitioners claimed that respondent Scheidler threatened DWHO's clinic administrator with reprisals if she refused to quit her job at the clinic. Id., at 68, , 98(g). Paragraphs 106 and 110 of petitioners' complaint incorporate these allegations into the § 1962(c) claim. Id., at 72, 73. Nothing more is needed to confer standing on DWHO and SWHO at the pleading stage.IIIWe turn to the question whether the racketeering enterprise or the racketeering predicate acts must be accompanied by an underlying economic motive. Section 1962(c) makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." Section 1961(1) defines "pattern of racketeering activity" to include conduct that is "chargeable"257or "indictable" under a host of state and federal laws.4 RICO broadly defines "enterprise" in § 1961(4) to "includ[e] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Nowhere in either § 1962(c) or the RICO definitions in § 1961 is there any indication that an economic motive is required.The phrase "any enterprise engaged in, or the activities of which affect, interstate or foreign commerce" comes the closest of any language in subsection (c) to suggesting a need for an economic motive. Arguably an enterprise engaged in4 Section 1961(1) provides: "'racketeering activity' means (A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering) ... (C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11, fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under any law of the United States .... "258interstate or foreign commerce would have a profit-seeking motive, but the language in § 1962(c) does not stop there; it includes enterprises whose activities "affect" interstate or foreign commerce. Webster's Third New International Dictionary 35 (1969) defines "affect" as "to have a detrimental influence on-used especially in the phrase affecting commerce." An enterprise surely can have a detrimental influence on interstate or foreign commerce without having its own profit-seeking motives.The Court of Appeals thought that the use of the term "enterprise" in §§ 1962(a) and (b), where it is arguably more tied in with economic motivation, should be applied to restrict the breadth of use of that term in § 1962(c). 968 F. 2d, at 629. Respondents agree and point to our comment in Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985), regarding the term "violation," that "[w]e should not lightly infer that Congress intended the term [violation] to have wholly different meanings in neighboring subsections."We do not believe that the usage of the term "enterprise" in subsections (a) and (b) leads to the inference that an economic motive is required in subsection (c). The term "enterprise" in subsections (a) and (b) plays a different role in the structure of those subsections than it does in subsection (c). Section 1962(a) provides that it "shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce." Correspondingly, § 1962(b) states that it "shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign com-259merce." The "enterprise" referred to in subsections (a) and (b) is thus something acquired through the use of illegal activities or by money obtained from illegal activities. The enterprise in these subsections is the victim of unlawful activity and may very well be a "profit-seeking" entity that represents a property interest and may be acquired. But the statutory language in subsections (a) and (b) does not mandate that the enterprise be a "profit-seeking" entity; it simply requires that the enterprise be an entity that was acquired through illegal activity or the money generated from illegal activity.By contrast, the "enterprise" in subsection (c) connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed, rather than the victim of that activity. Subsection (c) makes it unlawful for "any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity .... " Consequently, since the enterprise in subsection (c) is not being acquired, it need not have a property interest that can be acquired nor an economic motive for engaging in illegal activity; it need only be an association in fact that engages in a pattern of racketeering activity.5 Nothing in subsections (a) and (b) directs us to a contrary conclusion.The Court of Appeals also relied on the reasoning of United States v. Bagaric, 706 F.2d 42 (CA2), cert. denied, 464 U. S. 840 (1983), to support its conclusion that subsection (c) requires an economic motive. In upholding the convictions, under RICO, of members of a political terrorist group, the Bagaric court relied in part on the congressional statement of findings which prefaces RICO and refers to the activities of groups that" 'drai[n] billions of dollars from Ameri-5 One commentator uses the terms "prize," "instrument," "victim," and "perpetrator" to describe the four separate roles the enterprise may play in § 1962. See Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L. Rev. 237,307-325 (1982).260ca's economy by unlawful conduct and the illegal use of force, fraud, and corruption.'" 706 F. 2d, at 57, n. 13 (quoting OCCA, 84 Stat. 922). The Court of Appeals for the Second Circuit decided that the sort of activity thus condemned required an economic motive.We do not think this is so. Respondents and the two Courts of Appeals, we think, overlook the fact that predicate acts, such as the alleged extortion, may not benefit the protesters financially but still may drain money from the economy by harming businesses such as the clinics which are petitioners in this case.We also think that the quoted statement of congressional findings is a rather thin reed upon which to base a requirement of economic motive neither expressed nor, we think, fairly implied in the operative sections of the Act. As we said in H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 248 (1989): "The occasion for Congress' action was the perceived need to combat organized crime. But Congress for cogent reasons chose to enact a more general statute, one which, although it had organized crime as its focus, was not limited in application to organized crime."In United States v. Turkette, 452 U. S. 576 (1981), we faced the analogous question whether "enterprise" as used in § 1961(4) should be confined to "legitimate" enterprises. Looking to the statutory language, we found that "[t]here is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact." Id., at 580. Accordingly, we resolved that § 1961(4)'s definition of "enterprise" "appears to include both legitimate and illegitimate enterprises within its scope; it no more excludes criminal enterprises than it does legitimate ones." Id., at 580-581. We noted that Congress could easily have narrowed the sweep of the term "enterprise" by inserting a single word, "legitimate." Id., at 581. Instead, Congress did nothing to indicate that "enter-261prise" should exclude those entities whose sole purpose was criminal.The parallel to the present case is apparent. Congress has not, either in the definitional section or in the operative language, required that an "enterprise" in § 1962(c) have an economic motive.The Court of Appeals also found persuasive guidelines for RICO prosecutions issued by the Department of Justice in 1981. The guidelines provided that a RICO indictment should not charge an association as an enterprise, unless the association exists "'for the purpose of maintaining operations directed toward an economic goal .... '" United States v. Ivic, 700 F. 2d, at 64, quoting U. S. Dept. of Justice, United States Attorneys' Manual § 9-110.360 (1984) (emphasis added). The Second Circuit believed these guidelines were entitled to deference under administrative law principles. See 700 F. 2d, at 64. Whatever may be the appropriate deference afforded to such internal rules, see, e. g., Crandon v. United States, 494 U. S. 152, 177 (1990) (SCALIA, J., concurring in judgment), for our purposes we need note only that the Department of Justice amended its guidelines in 1984. The amended guidelines provide that an association-in-fact enterprise must be "directed toward an economic or other identifiable goal." U. S. Dept. of Justice, United States Attorney's Manual § 9-110.360 (Mar. 9, 1984) (emphasis added).Both parties rely on legislative history to support their positions. We believe the statutory language is unambiguous and find in the parties' submissions respecting legislative history no such "clearly expressed legislative intent to the contrary" that would warrant a different construction. Reves v. Ernst & Young, 507 U. S. 170, 177 (1993), citing United States v. Turkette, supra, at 580, quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980).262Respondents finally argue that the result here should be controlled by the rule of lenity in criminal cases. But the rule of lenity applies only when an ambiguity is present; "'it is not used to beget one .... The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.'" Turkette, supra, at 587-588, n. 10, quoting Callanan v. United States, 364 U. S. 587, 596 (1961) (footnote omitted). We simply do not think there is an ambiguity here which would suffice to invoke the rule of lenity. "'[T]he fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" Sedima, 473 U. S., at 499 (quoting Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)).6We therefore hold that petitioners may maintain this action if respondents conducted the enterprise through a pattern of racketeering activity. The questions whether respondents committed the requisite predicate acts, and whether the commission of these acts fell into a pattern, are not before us. We hold only that RICO contains no economic motive requirement.The judgment of the Court of Appeals is accordinglyReversed

OCTOBER TERM, 1993SyllabusNATIONAL ORGANIZATION FOR WOMEN, INC., ET AL. v. SCHEIDLER ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 92-780. Argued December 8, 1993-Decided January 24,1994In this action, petitioner health care clinics alleged, among other things, that respondents, a coalition of antiabortion groups called the Pro-Life Action Network (PLAN) and others, were members of a nationwide conspiracy to shut down abortion clinics through a pattern of racketeering activity-including extortion under the Hobbs Act-in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) chapter of the Organized Crime Control Act of 1970,18 U. S. C. §§ 1961-1968. They claimed that respondents conspired to use threatened or actual force, violence, or fear to induce clinic employees, doctors, and patients to give up their jobs, their right to practice medicine, and their right to obtain clinic services; that the conspiracy injured the clinics' business and property interests; and that PLAN is a racketeering enterprise. The District Court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(6). It found that the clinics failed to state a claim under § 1962(c)-which makes it unlawful "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt" -because they did not allege a profit-generating purpose in the activity or enterprise. It also dismissed their conspiracy claim under § 1962(d) on the ground that the § 1962(c) and other RICO claims they made could not stand. The Court of Appeals affirmed, agreeing that there is an economic motive requirement implicit in § 1962(c)'s enterprise element.Held:1. The clinics have standing to bring their claim. Since their complaint was dismissed at the pleading stage, the complaint must be sustained if relief could be granted under any set offacts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U. S. 69,73. Nothing more than the complaint's extortion and injury allegations are needed to confer standing at this stage. Pp. 255-256.2. RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering in § 1962(c) were motivated by an economic purpose. Nowhere in either § 1962(c) or in § 1961's250Syllabusdefinitions of "enterprise" and "pattern of racketeering activity" is there any indication that such a motive is required. While arguably an enterprise engaged in interstate or foreign commerce would have a profitseeking motive, § 1962(c)'s language also includes enterprises whose activities "affect" such commerce. Webster's Third New International Dictionary defines "affect" as "to have a detrimental influence on"; and an enterprise surely can have such an influence on commerce without having its own profit-seeking motives. The use of the term "enterprise" in subsections (a) and (b), where it is arguably more tied in with economic motivation, also does not lead to the inference of an economic motive requirement in subsection (c). In subsections (a) and (b), an "enterprise" is an entity acquired through illegal activity or the money generated from illegal activity: the victim of the activity. By contrast, the "enterprise" in subsection (c) connotes generally the vehicle through which the unlawful pattern of racketeering activity is committed. Since it is not being acquired, it need not have a property interest that can be acquired nor an economic motive for engaging in illegal activity; it need only be an association in fact that engages in a pattern of racketeering activity. Nor is an economic motive requirement supported by the congressional statement of findings that prefaces RICO and refers to activities that drain billions of dollars from America's economy. Predicate acts, such as the alleged extortion here, may not benefit the protesters financially, but they still may drain money from the economy by harming businesses such as the clinics. Moreover, a statement of congressional findings is a rather thin reed upon which to base a requirement neither expressed nor fairly implied from the Act's operative sections. Cf. United States v. Turkette, 452 U. S. 576. The Department of Justice's 1981 guidelines on RICO prosecutions are also unpersuasive, since 1984 amendments broadened the focus of RICO prosecutions from those association-in-fact enterprises that exist "for the purpose of maintaining operations directed toward an economic goal" to those that are "directed toward an economic or other identifiable goal." In addition, the statutory language is unambiguous, and there is no clearly expressed intent to the contrary in the legislative history that would warrant a different construction. Nor is there an ambiguity in RICO that would suffice to invoke the rule of lenity. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499. pp. 256-262.968 F.2d 612, reversed.REHNQUIST, C. J., delivered the opinion for a unanimous Court. SouTER, J., filed a concurring opinion, in which KENNEDY, J., joined, post, p.263.251Full Text of Opinion

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MR. JUSTICE WHITTAKER delivered the opinion of the Court.Acting without a warrant but with the consent of the petitioner's landlord, Georgia law enforcement officers entered -- through an unlocked window -- and searched petitioner's rented house, in his absence, and there found and seized an unregistered "distillery" and 1,300 gallons of "mash." Soon afterward, petitioner was indicted in Page 365 U. S. 611 the District Court for the Middle District of Georgia for violations of the federal liquor laws. [Footnote 1] He promptly moved the court for an order suppressing the use of the seized items as evidence at his impending criminal trial on the ground that they were obtained by an unlawful search and seizure. After hearing evidence, the court held that the search and seizure were lawful under federal standards, and denied the motion.At the subsequent trial, the evidence sought to be suppressed was offered and received over petitioner's renewed objections. Upon that evidence, the jury found petitioner guilty, and the court sentenced him to imprisonment for a year and a day. On appeal, the Court of Appeals for the Fifth Circuit affirmed. 272 F.2d 70. To examine petitioner's claim that the courts below violated the standards governing admissibility of timely challenged evidence in federal courts, we granted certiorari. 363 U.S. 836.The relevant evidence is not controverted. It shows the following: one Bridgaman and another owned a dwelling house in a wooded area near the Macon, Georgia, airport, which they commonly rented through a rental agency. Understanding that the house had been rented to a new tenant, Bridgaman, on Sunday, February 16, 1958, went to the house for the purpose of inviting the tenants to attend church. Upon arrival, he noted a strong "odor of mash" about the house. There was no response to his knock, and, although he tried to do so, he was unable to see into the house. He then returned to his home and, by telephone, advised the local police department of his observations. Soon afterward, two local police officers, Harbin and Chance, arrived at Bridgaman's home, and the three then went to the rented Page 365 U. S. 612 house. They noticed a strong odor of "whiskey mash" coming from the house. After their knock at the door failed to produce a response, they walked around the house and tried to look into it, but were unable to do so because the shades were down. They found that all of the windows were locked, save one in the bathroom. The officers testified that Bridgaman told them "to go in the window and see what['s] what in there." Bridgaman's version of what he said was: "If it's what I think it is, what it smells like, yes, you can have my permission to go in." Thereupon they opened the bathroom window and, with the assistance of Bridgaman and Chance, Harbin entered the house through that opening. Upon entering the house, he saw a complete and sizable distillery and 1,300 gallons of mash located in the living room. Apart from some accessories, containers and firewood, there was nothing else in the house. Harbin then called to Chance that he had found a large still and asked him "to go get some help." Chance immediately left -- dropping Bridgaman at his home -- to call the federal officers. While the federal officers were en route to the house, petitioner drove up, unlocked the front door, entered the house and was immediately arrested by Harbin. The federal officers soon arrived and took custody of petitioner. They also saved samples of the mash, took various pictures of the scene, and then destroyed the still and its contents. Neither the state nor the federal officers had any warrant of any kind.Although the decisions below were rendered prior to this Court's decision in Elkins v. United States, 364 U. S. 206, the doctrine of that case is not here involved, as the lower courts explicitly rested their determinations on the ground that the search and seizure, though made by state officers, were valid under federal standards. Hence, the only question here is whether those determinations were correct. We believe that they were not. Page 365 U. S. 613The Fourth Amendment to the United States Constitution provides:"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."Until Agnello v. United States, 269 U. S. 20, this Court had never directly decided, but had always assumed, "that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein" (id. 269 U. S. 32), but that case explicitly decided that"[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are . . . unlawful notwithstanding facts unquestionably showing probable cause."Id. at 269 U. S. 33.At least two decisions of this Court are closely relevant. Taylor v. United States, 286 U. S. 1, and Johnson v. United States, 333 U. S. 10. In the Taylor case, Federal agents had received "complaints" respecting activities at a certain garage in Baltimore, and decided to "investigate." As they "approached the garage, they got the odor of whiskey coming from within." Looking through a small opening, they saw a number of cardboard cases. Although they had no warrant of any kind, they"broke the fastening upon a door, entered, and found 122 cases of whiskey. No one was within the place, and there was no reason to think otherwise. While the search progressed, Taylor came from his house and was put under arrest. The search and seizure were undertaken with the hope of securing evidence upon which to indict and convict him."Id. at 286 U. S. 5. Page 365 U. S. 614In condemning that search and seizure, this Court said that the officers"had abundant opportunity [to obtain a warrant] and to proceed in an orderly way even after the odor had emphasized their suspicious; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility. . . . Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees . . . against unreasonable search."The Court concluded that,"in any view, the action of the agents was inexcusable, and the seizure unreasonable. The evidence was obtained unlawfully, and should have been suppressed."Id. at 286 U. S. 6.In the Johnson case, state narcotic agents, while in the hallway of a hotel, recognized a strong odor of burning opium coming from a particular room. Without knowing who was occupying the room, they knocked, and, after some delay, the door was opened. The agents then entered the room and told the occupant "to consider [herself] under arrest because we are going to search the room." The search produced incriminating opium and smoking apparatus which was warm from recent use. The District Court refused to suppress that evidence and admitted it over defendant's objection at the trial and she was convicted. In reversing, this Court said:"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Page 365 U. S. 615 Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . The right of officers to thrust themselves into a home is also a 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.""There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case."333 U.S. at 333 U. S. 13-15.Here, as in that case,"No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to bypass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear."333 U.S. at 333 U. S. 15.We think it must be concluded here, as it was in Johnson, that"If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, Page 365 U. S. 616 it is difficult to think of a case in which it should be required."333 U.S. at 333 U. S. 15. See also Lustig v. United States, 338 U. S. 74; United States v. Rabinowitz, 339 U. S. 56; United States v. Jeffers, 342 U. S. 48; Jones v. United States, 357 U. S. 493.Actually, the Government does not contend in this Court that this search and seizure, as such, met the standards of the Fourth Amendment. Instead, it says:"Our position is that when the landlord, paying a social call, found good reason to believe that the leased premises were being wasted and used for criminal purposes, he had authority to enter as a matter of right and to bring officers with him for this purpose."It says that, under the common law, a landlord has an absolute right to enter the demised premises "to view waste," and that he should be able to exercise that right through law enforcement officers to whom he has delegated his authority. But it cites no Georgia or other case holding that a landlord, in the absence of an express covenant so permitting, has a right forcibly to enter the demised premises without the consent of the tenant "to view waste." And, so far as our research discloses, no Georgia case so holds.The only relevant authority cited by the Government is a statement from Tiffany, Landlord and Tenant (1910 ed.), § 3.b.(2), p. 9, that"It has also been said that [the landlord] may enter to 'view waste,' that is, to determine whether waste has been committed, provided at least that this does not involve the breaking of windows or doors. . . . [Footnote 2]"(Emphasis added.) There are several answers to this contention. First, here the landlord and the officers forced open a window to gain entry to the premises. Second, "their purpose in entering was [not to view waste but] to search for distilling equipment. . . ." Jones v. United States, supra, 357 U.S. at 357 U.S. 500. Third, to uphold Page 365 U. S. 617 such an entry, search and seizure"without a warrant would reduce the [Fourth] Amendment to a nullity and leave [tenants'] homes secure only in the discretion of [landlords]."Johnson v. United States, supra, at 333 U. S. 14. Moreover,"it is unnecessary and ill advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . [W]e ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime."Jones v. United States, 362 U. S. 257, 362 U. S. 266-267.After pointing to the fact that a Georgia statute (Title 58 Ga.Code § 106) provides that the unlawful manufacture of distilled liquor on rented premises shall work a forfeiture of the rights of the tenant at the option of the landlord, and that another (Title 58 Ga.Code § 109) provides that use of a structure for that purpose constitutes a nuisance, the Government argues that, inasmuch as he used the demised premises for the illicit manufacture of distilled liquor, petitioner had forfeited all rights in the premises, and the landlord thus acquired the right forcibly to enter to abate the nuisance, and that he could and did delegate that right to the officers. But it is clear that, before the officers made the forcible entry, the landlord did not know that the premises were being used for the manufacture of liquor, nor had he exercised his statutory option to forfeit the tenancy for such a cause. And the Supreme Court of Georgia has held that a proceeding to abate a nuisance under § 109 "must proceed for the public on information filed by the solicitor general of the circuit." Kilgore v. Paschall, 202 Ga. 416, 417, 43 S.E.2d 520, 521. Page 365 U. S. 618It follows that this search was unlawful, and, since evidence obtained through that search was admitted at the trial, the judgment of the Court of Appeals must beReversed

U.S. Supreme CourtChapman v. United States, 365 U.S. 610 (1961)Chapman v. United StatesNo. 175Argued February 23, 1961Decided April 3, 1961365 U.S. 610SyllabusState police officers, acting without a warrant but with the consent of petitioner's landlord, who had summoned them after detecting the odor of whiskey mash on the premises, entered petitioner's rented house in his absence through an unlocked window and there found an unregistered still and a quantity of mash. When petitioner returned and entered the house, he was arrested by a state officer. Federal officers, also without warrants, arrived soon thereafter and took custody of petitioner, samples of the mash and the still. The evidence so seized was admitted over petitioner's objection at his trial in a federal court, and he was convicted of violating the federal liquor laws.Held: the search and seizure were unlawful, and the judgment affirming the conviction is reversed. Pp. 365 U. S. 610-618.272 F.2d 70, reversed.

1999_99-6615

Syllabusimportance, yet failed to investigate in anything but a cursory manner, this Court is not satisfied with petitioner's explanation that, although an investigator for his federal habeas counsel discovered the report in Cruse's court file, his state counsel had not seen the report when he reviewed the same file. Because this constitutes a failure to develop the factual basis of petitioner's Brady claim in state court, this Court must determine if the requirements in the balance of §2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, and the case has been presented to this Court on that premise. Accordingly, the Fourth Circuit's judgment barring an evidentiary hearing on this claim is affirmed. Pp.437-440.(d) However, petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in state court. Those claims are based on two questions posed by the trial judge at voir dire. First, the judge asked prospective jurors whether any of them was related to, inter al ios, Deputy Sheriff Meinhard, who investigated the crime scene, interrogated Cruse, and later became the prosecution's first witness. Venire member Stinnett, who had divorced Meinhard after a 17-year marriage and four children, remained silent, thereby indicating the answer to the question was "no." Second, the judge asked whether any prospective juror had ever been represented by any of the attorneys in the case, including prosecutor Woodson. Stinnett again said nothing, although Woodson had represented her during her divorce from Meinhard. Later, Woodson admitted he knew Stinnett and Meinhard had been married and divorced, but stated that he did not consider divorced people to be "related" and that he had no recollection of having been involved as a private attorney in the divorce. Stinnett's silence after the first question could suggest to the factfinder an unwillingness to be forthcoming; this in turn could bear on her failure to disclose that Woodson had been her attorney. Moreover, her failure to divulge material information in response to the second question was misleading as a matter of fact because Woodson was her counsel. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. This Court disagrees with the Fourth Circuit's conclusion that petitioner's state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's nonresponse was a deliberate omission of material information,423and counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. Moreover, because state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts, so that he cannot be said to have failed to develop the facts in state court by reason of having neglected to pursue remedies available under Virginia law. The foregoing analysis establishes cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the lower courts during further proceedings. These courts should take due account of the District Court's earlier decision to grant an evidentiary hearing based in part on its belief that Stinnett deliberately lied on voir dire. Pp. 440-444.189 F.3d 421, affirmed in part, reversed in part, and remanded.KENNEDY, J., delivered the opinion for a unanimous Court.John H. Blume argued the cause for petitioner. With him on the briefs were Keir M. Weyble, Barbara L. Hartung, by appointment of the Court, 528 U. S. 1044, and James E. Moore.Donald R. Curry, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief was Mark L. Earley, Attorney General. ** A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, David P. Druliner, Chief Assistant Attorney General, John R. Gorey, Acting Senior Assistant Attorney General, and Donald E. De Nicola, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. M odisett of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota,424JUSTICE KENNEDY delivered the opinion of the Court. Petitioner Michael Wayne Williams received a capital sentence for the murders of Morris Keller, Jr., and Keller's wife, Mary Elizabeth. Petitioner later sought a writ of habeas corpus in federal court. Accompanying his petition was a request for an evidentiary hearing on constitutional claims which, he alleged, he had been unable to develop in statecourt proceedings. The question in this case is whether 28 U. S. C. § 2254(e)(2) (1994 ed., Supp. III), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, bars the evidentiary hearing petitioner seeks. If petitioner "has failed to develop the factual basis of [his] claim[s] in State court proceedings," his case is subject to § 2254(e)(2), and he may not receive a hearing because he concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency.IOn the evening of February 27, 1993, Verena Lozano James dropped off petitioner and his friend Jeffrey Alan Cruse near a local store in a rural area of Cumberland County, Virginia. The pair planned to rob the store's employees and customers using a .357 revolver petitioner had stolen in the course of a quadruple murder and robbery he had committed two months earlier. Finding the store closed, petitioner and Cruse walked to the Kellers' home. Petitioner was familiar with the couple, having grown up down the road from where they lived. He told Cruse they would have "a couple thousand dollars." App. 78. Cruse, who had been holding the .357, handed the gun to petitioner and knocked on the door. When Mr. Keller opened the door, petitioner pointed the gun at him as the two intruders forced their way inside. Petitioner and Cruse forced Mr. Keller to the kitchen, whereJohn Cornyn of Texas, Jan Graham of Utah, and Christine Q Gregoire of Washington.425they discovered Mrs. Keller. Petitioner ordered the captives to remove their clothing. While petitioner kept guard on the Kellers, Cruse searched the house for money and other valuables. He found a .38-caliber handgun and bullets. Upon Cruse's return to the kitchen, petitioner had Cruse tie their captives with telephone cords. The Kellers were confined to separate closets while the intruders continued ransacking the house.When they gathered all they wanted, petitioner and Cruse decided to rape Mrs. Keller. With Mrs. Keller pleading with them not to hurt her or her husband, petitioner raped her. Cruse did the same. Petitioner then ordered the Kellers to shower and dress and "take a walk" with him and Cruse. Id., at 97. As they were leaving, petitioner told Mrs. Keller he and Cruse were going to burn down the house. Mrs. Keller begged to be allowed to retrieve her marriage license, which she did, guarded by petitioner.As the prosecution later presented the case, details of the murders were as follows. Petitioner, now carrying the .38, and Cruse, carrying the .357, took the Kellers to a thicket down a dirt road from the house. With petitioner standing behind Mr. Keller and Cruse behind Mrs. Keller, petitioner told Cruse, "We'll shoot at the count of three." Id., at 103. At the third count, petitioner shot Mr. Keller in the head, and Mr. Keller collapsed to the ground. Cruse did not shoot Mrs. Keller at the same moment. Saying "he didn't want to leave no witnesses," petitioner urged Cruse to shoot Mrs. Keller. Ibid. Cruse fired one shot into her head. Despite his wound, Mr. Keller stood up, but petitioner shot him a second time. To ensure the Kellers were dead, petitioner shot each of them two or three more times.After returning to the house and loading the stolen property into the Kellers' jeep, petitioner and Cruse set fire to the house and drove the jeep to Fredericksburg, Virginia, where they sold some of the property. They threw the re-426maining property and the .357 revolver into the Rappahannock River and set fire to the jeep.Pursuing a lead from Verena James, the police interviewed Cruse about the fire at the Kellers' home. Petitioner had fled to Florida. Cruse provided no useful information until the police discovered the bodies of the victims, at which point Cruse consulted counsel. In a plea bargain Cruse agreed to disclose the details of the crimes in exchange for the Commonwealth's promise not to seek the death penalty against him. Cruse described the murders but made no mention of his own act of rape. When the Commonwealth discovered the omission, it revoked the plea agreement and charged Cruse with capital murder.Petitioner was arrested and charged with robbery, abduction, rape, and the capital murders of the Kellers. At trial in January 1994, Cruse was the Commonwealth's main witness. He recounted the murders as we have just described. Cruse testified petitioner raped Mrs. Keller, shot Mr. Keller at least twice, and shot Mrs. Keller several times after she had been felled by Cruse's bullet. He also described petitioner as the mastermind of the murders. The circumstances of the first plea agreement between the Commonwealth and Cruse and its revocation were disclosed to the jury. Id., at 158-159. Testifying on his own behalf, petitioner admitted he was the first to shoot Mr. Keller and it was his idea to rob the store and set fire to the house. He denied, however, raping or shooting Mrs. Keller, and claimed to have shot Mr. Keller only once. Petitioner blamed Cruse for the remaining shots and disputed some other parts of Cruse's testimony.The jury convicted petitioner on all counts. After considering the aggravating and mitigating evidence presented during the sentencing phase, the jury found the aggravating circumstances of future dangerousness and vileness of the crimes and recommended a death sentence. The trial court imposed the recommended sentence. The Supreme Court427of Virginia affirmed petitioner's convictions and sentence, Williams v. Commonwealth, 248 Va. 528, 450 S. E. 2d 365 (1994), and we denied certiorari, Williams v. Virginia, 515 U. S. 1161 (1995). In a separate proceeding, Cruse pleaded guilty to the capital murder of Mrs. Keller and the firstdegree murder of Mr. Keller. After the prosecution asked the sentencing court to spare his life because of his testimony against petitioner, Cruse was sentenced to life imprisonment.Petitioner filed a habeas petition in state court alleging, in relevant part, that the Commonwealth failed to disclose a second agreement it had reached with Cruse after the first one was revoked. The new agreement, petitioner alleged, was an informal undertaking by the prosecution to recommend a life sentence in exchange for Cruse's testimony. Finding no merit to petitioner's claims, the Virginia Supreme Court dismissed the habeas petition, and we again denied certiorari. Williams v. Netherland, 519 U. S. 877 (1996).Petitioner filed a habeas petition in the United States District Court for the Eastern District of Virginia on November 20, 1996. In addition to his claim regarding the alleged undisclosed agreement between the Commonwealth and Cruse, the petition raised three claims relevant to questions now before us. First, petitioner claimed the prosecution had violated Brady v. Maryland, 373 U. S. 83 (1963), in failing to disclose a report of a confidential pretrial psychiatric examination of Cruse. Second, petitioner alleged his trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias. Finally, petitioner alleged one of the prosecutors committed misconduct in failing to reveal his knowledge of the juror's possible bias.The District Court granted an evidentiary hearing on the undisclosed agreement and the allegations of juror bias and prosecutorial misconduct but denied a hearing on the psychiatric report. Before the evidentiary hearing could be held, the Commonwealth filed an application for an emergency428stay and a petition for a writ of mandamus and prohibition in the Court of Appeals. The Commonwealth argued that petitioner's evidentiary hearing was prohibited by 28 U. S. C. § 2254(e)(2) (1994 ed., Supp. III). A divided panel of the Court of Appeals granted the emergency stay and remanded for the District Court to apply the statute to petitioner's request for an evidentiary hearing. On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy § 2254(e)(2)'s requirements.The Court of Appeals affirmed. It first considered petitioner's argument that § 2254(e)(2) did not apply to his case because he had been diligent in attempting to develop his claims in state court. Citing its decision in Cardwell v. Greene, 152 F.3d 331 (CA4), cert. denied, 525 U. S. 1037 (1998), the Court of Appeals agreed with petitioner that § 2254(e)(2) would not apply if he had exercised diligence in state court. The court held, however, that petitioner had not been diligent and so had "failed to develop" in state court the factual bases of his Brady, juror bias, and prosecutorial misconduct claims. See 189 F.3d 421, 426 (CA4 1999). The Court of Appeals concluded petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing. The Court of Appeals ruled in the alternative that, even if § 2254(e)(2) did not apply, petitioner would be ineligible for an evidentiary hearing under the cause and prejudice standard of pre-AEDPA law. See id., at 428.Addressing petitioner's claim of an undisclosed informal agreement between the Commonwealth and Cruse, the Court of Appeals rejected it on the merits under 28 U. S. C. § 2254(d)(1) and, as a result, did not consider whether § 2254(e)(2) applied. See 189 F. 3d, at 429.On October 18, 1999, petitioner filed an application for stay of execution and a petition for a writ of certiorari. On Octo-429ber 28, we stayed petitioner's execution and granted certiorari to decide whether § 2254(e)(2) precludes him from receiving an evidentiary hearing on his claims. See 528 U. S. 960 (1999). We now affirm in part and reverse in part.II APetitioner filed his federal habeas petition after AEDPA's effective date, so the statute applies to his case. See Lindh v. Murphy, 521 U. S. 320, 326-327 (1997). The Commonwealth argues AEDPA bars petitioner from receiving an evidentiary hearing on any claim whose factual basis was not developed in state court, absent narrow circumstances not applicable here. Petitioner did not develop, or raise, his claims of juror bias, prosecutorial misconduct, or the prosecution's alleged Brady violation regarding Cruse's psychiatric report until he filed his federal habeas petition. Petitioner explains he could not have developed the claims earlier because he was unaware, through no fault of his own, of the underlying facts. As a consequence, petitioner contends, AEDPA erects no barrier to an evidentiary hearing in federal court.Section 2254(e)(2), the provision which controls whether petitioner may receive an evidentiary hearing in federal district court on the claims that were not developed in the Virginia courts, becomes the central point of our analysis. It provides as follows:"If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-"(A) the claim relies on-"(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or430"(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and"(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."By the terms of its opening clause the statute applies only to prisoners who have "failed to develop the factual basis of a claim in State court proceedings." If the prisoner has failed to develop the facts, an evidentiary hearing cannot be granted unless the prisoner's case meets the other conditions of § 2254(e)(2). Here, petitioner concedes his case does not comply with § 2254(e)(2)(B), see Brief for Petitioner 25, so he may receive an evidentiary hearing only if his claims fall outside the opening clause.There was no hearing in state court on any of the claims for which petitioner now seeks an evidentiary hearing. That, says the Commonwealth, is the end of the matter. In its view petitioner, whether or not through his own fault or neglect, still "failed to develop the factual basis of a claim in State court proceedings." Petitioner, on the other hand, says the phrase "failed to develop" means lack of diligence in developing the claims, a defalcation he contends did not occur since he made adequate efforts during state-court proceedings to discover and present the underlying facts. The Court of Appeals agreed with petitioner's interpretation of § 2254(e)(2) but believed petitioner had not exercised enough diligence to avoid the statutory bar. See 189 F. 3d, at 426. We agree with petitioner and the Court of Appeals that "failed to develop" implies some lack of diligence; but, unlike the Court of Appeals, we find no lack of diligence on petitioner's part with regard to two of his three claims.431BWe start, as always, with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). Section 2254(e)(2) begins with a conditional clause, "[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings," which directs attention to the prisoner's efforts in state court. We ask first whether the factual basis was indeed developed in state court, a question susceptible, in the normal course, of a simple yes or no answer. Here the answer is no.The Commonwealth would have the analysis begin and end there. Under its no-fault reading of the statute, if there is no factual development in the state court, the federal habeas court may not inquire into the reasons for the default when determining whether the opening clause of § 2254(e)(2) applies. We do not agree with the Commonwealth's interpretation of the word "failed."We do not deny "fail" is sometimes used in a neutral way, not importing fault or want of diligence. So the phrase "We fail to understand his argument" can mean simply "We cannot understand his argument." This is not the sense in which the word "failed" is used here, however.We give the words of a statute their" 'ordinary, contemporary, common meaning,'" absent an indication Congress intended them to bear some different import. Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993)). See also Bailey v. United States, 516 U. S. 137, 141 (1995). In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. See, e. g., Webster's New International Dictionary 910 (2d ed. 1939) (defining "fail" as "to be wanting; to fall short; to be or become deficient in any measure or degree," and "failure" as "a falling short," "a deficiency or432lack," and an "[o]mission to perform"); Webster's New International Dictionary 814 (3d ed. 1993) ("to leave some possible or expected action unperformed or some condition unachieved"). See also Black's Law Dictionary 594 (6th ed. 1990) (defining "fail" as "[f]ault, negligence, or refusal"). To say a person has failed in a duty implies he did not take the necessary steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the failure. In this sense, a person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all. We conclude Congress used the word "failed" in the sense just described. Had Congress intended a no-fault standard, it would have had no difficulty in making its intent plain. It would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not."Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel. In this we agree with the Court of Appeals and with all other courts of appeals which have addressed the issue. See, e. g., Baja v. Ducharme, 187 F.3d 1075, 1078-1079 (CA9 1999); Miller v. Champion, 161 F.3d 1249, 1253 (CAlO 1998); Cardwell, 152 F. 3d, at 337; McDonald v. Johnson, 139 F.3d 1056, 1059 (CA5 1998); Burris v. Parke, 116 F.3d 256, 258 (CA7 1997); Love v. Morton, 112 F.3d 131, 136 (CA3 1997).Our interpretation of § 2254(e)(2)'s opening clause has support in Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), a case decided four years before AEDPA's enactment. In Keeney, a prisoner with little knowledge of English sought an evidentiary hearing in federal court, alleging his nolo contendere plea to a manslaughter charge was not knowing and voluntary because of inaccuracies in the translation of the plea433proceedings. The prisoner had not developed the facts of his claim in state collateral proceedings, an omission caused by the negligence of his state postconviction counsel. See id., at 4, 8-9. The Court characterized this as the "prisoner's failure to develop material facts in state court." Id., at 8. We required the prisoner to demonstrate cause and prejudice excusing the default before he could receive a hearing on his claim, ibid., unless the prisoner could "show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing," id., at 12.Section 2254(e)(2)'s initial inquiry into whether "the applicant has failed to develop the factual basis of a claim in State court proceedings" echoes Keeney's language regarding "the state prisoner's failure to develop material facts in state court." In Keeney, the Court borrowed the cause and prejudice standard applied to procedurally defaulted claims, see Wainwright v. Sykes, 433 U. S. 72, 87-88 (1977), deciding there was no reason "to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim." Keeney, supra, at 8. As is evident from the similarity between the Court's phrasing in Keeney and the opening clause of § 2254(e)(2), Congress intended to preserve at least one aspect of Keeney's holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy § 2254(e)(2)'s provisions rather than show cause and prejudice, and in eliminating a freestanding "miscarriage of justice" exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. Contrary to the Commonwealth's position, however, there is no basis in the text of § 2254(e)(2) to believe Congress used "fail" in a different sense than the Court did in Keeney or otherwise intended the statute's further, more stringent requirements to control the availability of an evidentiary hear-434ing in a broader class of cases than were covered by Keeney's cause and prejudice standard.In sum, the opening clause of § 2254(e)(2) codifies Keeney's threshold standard of diligence, so that prisoners who would have had to satisfy Keeney's test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by § 2254(e)(2). When the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court's own processes to give the words the same meaning in the absence of specific direction to the contrary. See Lorillard v. Pons, 434 U. S. 575, 581 (1978) ("[W]here ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute"). See also Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 562 (1991).Interpreting § 2254(e)(2) so that "failed" requires lack of diligence or some other fault avoids putting it in needless tension with § 2254(d). A prisoner who developed his claim in state court and can prove the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," is not barred from obtaining relief by § 2254(d)(1). See Williams v. Taylor, ante, at 412-413 (majority opinion). If the opening clause of § 2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but remained undeveloped in state court because, for instance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy § 2254(d). See 28 U. S. C. § 2254(e)(2)(B). The "failed to develop" clause does not bear this harsh reading, which would attribute to Congress a purpose or design to bar evidentiary hearings for diligent prisoners with meritorious claims just because the prosecution's435conduct went undetected in state court. We see no indication that Congress by this language intended to remove the distinction between a prisoner who is at fault and one who is not.The Commonwealth argues a reading of "failed to develop" premised on fault empties § 2254(e)(2)(A)(ii) of its meaning. To treat the prisoner's lack of diligence in state court as a prerequisite for application of § 2254(e)(2), the Commonwealth contends, renders a nullity of the statute's own diligence provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence." § 2254(e)(2)(A)(ii). We disagree.The Commonwealth misconceives the inquiry mandated by the opening clause of § 2254(e)(2). The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of "failed" is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful. Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see § 2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see § 2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute's later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not. In this important respect § 2254(e)(2)(A)(ii) bears a close resemblance to (e)(2)(A)(i), which applies to a new rule that was not available at the time of the earlier proceedings. Cf. Gutierrez v. Ada, 528 U. S. 250, 255 (2000) ("[W]ords and people are known by436their companions"). Cf. also United States v. Locke, ante, at 105. In these two parallel provisions Congress has given prisoners who fall within § 2254(e)(2)'s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings.We are not persuaded by the Commonwealth's further argument that anything less than a no-fault understanding of the opening clause is contrary to AEDPA's purpose to further the principles of comity, finality, and federalism. There is no doubt Congress intended AEDPA to advance these doctrines. Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' interest in the integrity of their criminal and collateral proceedings. See, e. g., Coleman v. Thompson, 501 U. S. 722, 726 (1991) ("This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in federal habeas corpus"); McCleskey v. Zant, 499 U. S. 467, 493 (1991) ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments").It is consistent with these principles to give effect to Congress' intent to avoid unneeded evidentiary hearings in federal habeas corpus, while recognizing the statute does not equate prisoners who exercise diligence in pursuing their claims with those who do not. Principles of exhaustion are premised upon recognition by Congress and the Court that state judiciaries have the duty and competence to vindicate437rights secured by the Constitution in state criminal proceedings. Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. "Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U. S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner "has failed to develop the factual basis of a claim" where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2).IIINow we apply the statutory test. If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not "failed to develop" the facts under § 2254(e)(2)'s opening clause, and he will be excused from showing compliance with the balance of the subsection's requirements. We find lack of diligence as to one of the three claims but not as to the other two.APetitioner did not exercise the diligence required to preserve the claim that nondisclosure of Cruse's psychiatric re-438port was in contravention of Brady v. Maryland, 373 U. S. 83 (1963). The report concluded Cruse "ha[d] little recollection of the [murders of the Kellers], other than vague memories, as he was intoxicated with alcohol and marijuana at the time." App. 495. The report had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. Petitioner explained that an investigator for his federal habeas counsel discovered the report in Cruse's court file but state habeas counsel had not seen it when he had reviewed the same file. State habeas counsel averred as follows:"Prior to filing [petitioner's] habeas corpus petition with the Virginia Supreme Court, I reviewed the Cumberland County court files of [petitioner] and of his codefendant, Jeffrey Cruse .... I have reviewed the attached psychiatric evaluation of Jeffrey Cruse .... I have no recollection of seeing this report in Mr. Cruse's court file when I examined the file. Given the contents of the report, I am confident that I would remember it." Id., at 625-626.The trial court was not satisfied with this explanation for the late discovery. Nor are we.There are repeated references to a "psychiatric" or "mental health" report in a transcript of Cruse's sentencing proceeding, a copy of which petitioner's own state habeas counsel attached to the state habeas petition he filed with the Virginia Supreme Court. The transcript reveals that Cruse's attorney described the report with details that should have alerted counsel to a possible Brady claim. As Cruse's attorney said:"The psychiatric report ... point[s] out that [Cruse] is significantly depressed. He suffered from post traumatic stress. His symptoms include nightmares, sleeplessness, sobbing, reddening of the face, severe depres-439sion, flash backs .... [T]he psychological report states he is overwhelmed by feelings of guilt and shame in his actions. He is numb. He is trying to suppress his feelings, but when he has feelings, there is only pain and sadness." App. 424.The description accords with the contents of the psychiatric report, which diagnosed Cruse as suffering from posttraumatic stress disorder:"[Cruse] has recurrent nightmares and visualizes the face of the woman that he killed. When attempting to describe this nightmare, he breaks openly into tears and his face reddens .... He continues to feel worthless as a person .... He has no hope for his future and has been thinking of suicide constantly .... He does describe inability to sleep, often tossing and turning, waking up, and feeling fatigued during the day .... He described neurovegetative symptoms of major depression and post-traumatic nightmares, recurrent in nature, of the [murders]." Id., at 495-499.The transcript put petitioner's state habeas counsel on notice of the report's existence and possible materiality. The sole indication that counsel made some effort to investigate the report is an October 30, 1995, letter to the prosecutor in which counsel requested "[a]ll reports of physical and mental examinations, scientific tests, or experiments conducted in connection with the investigation of the offense, including but not limited to: ... [a]ll psychological test or polygraph examinations performed upon any prosecution witness and all documents referring or relating to such tests .... " Id., at 346-347. After the prosecution declined the requests absent a court order, id., at 353, it appears counsel made no further efforts to find the specific report mentioned by Cruse's attorney. Given knowledge of the report's existence and potential importance, a diligent attorney would have done more. Counsel's failure to investigate these references440in anything but a cursory manner triggers the opening clause of § 2254(e)(2).As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, see Brief for Petitioner 25, and the case has been presented to us on that premise. For these reasons, we affirm the Court of Appeals' judgment barring an evidentiary hearing on this claim.BWe conclude petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court.Petitioner's claims are based on two of the questions posed to the jurors by the trial judge at voir dire. First, the judge asked prospective jurors, "Are any of you related to the following people who may be called as witnesses?" Then he read the jurors a list of names, one of which was "Deputy Sheriff Claude Meinhard." Bonnie Stinnett, who would later become the jury foreperson, had divorced Meinhard in 1979, after a 17-year marriage with four children. Stinnett remained silent, indicating the answer was "no." Meinhard, as the officer who investigated the crime scene and interrogated Cruse, would later become the prosecution's lead-off witness at trial.After reading the names of the attorneys involved in the case, including one of the prosecutors, Robert Woodson, Jr., the judge asked, "Have you or any member of your immediate family ever been represented by any of the aforemen-441tioned attorneys?" Stinnett again said nothing, despite the fact Woodson had represented her during her divorce from Meinhard. App. 483, 485.In an affidavit she provided in the federal habeas proceedings, Stinnett claimed "[she] did not respond to the judge's [first] question because [she] did not consider [herself] 'related' to Claude Meinhard in 1994 [at voir dire] .... Once our marriage ended in 1979, I was no longer related to him." Id., at 627. As for Woodson's earlier representation of her, Stinnett explained as follows:"When Claude and I divorced in 1979, the divorce was uncontested and Mr. Woodson drew up the papers so that the divorce could be completed. Since neither Claude nor I was contesting anything, I didn't think Mr. Woodson 'represented' either one of us." Id., at 628.Woodson provided an affidavit in which he admitted "[he] was aware that Juror Bonnie Stinnett was the ex-wife of then Deputy Sheriff Claude Meinhard and [he] was aware that they had been divorced for some time." Id., at 629. Woodson stated, however, "[t]o [his] mind, people who are related only by marriage are no longer 'related' once the marriage ends in divorce." Ibid. Woodson also "had no recollection of having been involved as a private attorney in the divorce proceedings between Claude Meinhard and Bonnie Stinnett." Id., at 629-630. He explained that "[w]hatever [his] involvement was in the 1979 divorce, by the time of trial in 1994 [he] had completely forgotten about it." Id., at 630.Even if Stinnett had been correct in her technical or literal interpretation of the question relating to Meinhard, her silence after the first question was asked could suggest to the finder of fact an unwillingness to be forthcoming; this in turn could bear on the veracity of her explanation for not disclosing that Woodson had been her attorney. Stinnett's failure to divulge material information in response to the second442question was misleading as a matter of fact because, under any interpretation, Woodson had acted as counsel to her and Meinhard in their divorce. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. It may be that petitioner could establish that Stinnett was not impartial, see Smith v. Phillips, 455 U. S. 209, 217, 219-221 (1982), or that Woodson's silence so infected the trial as to deny due process, see Donnelly v. DeChristoforo, 416 U. S. 637, 647-648 (1974).In ordering an evidentiary hearing on the juror bias and prosecutorial misconduct claims, the District Court concluded the factual basis of the claims was not reasonably available to petitioner's counsel during state habeas proceedings. After the Court of Appeals vacated this judgment, the District Court dismissed the petition and the Court of Appeals affirmed under the theory that state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. See 189 F. 3d, at 428.We disagree with the Court of Appeals on this point. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's nonresponse was a deliberate omission of material information. State habeas counsel did attempt to investigate petitioner's jury, though prompted by concerns about a different juror. App. 388-389. Counsel filed a motion for expert services with the Virginia Supreme Court, alleging "irregularities, improprieties and omissions exist[ed] with respect to the empaneling [sic] of the jury." Id., at 358. Based on these suspicions, counsel requested funding for an investigator "to examine all circumstances relating to the empanelment of the jury and the jury's consideration of the case." Ibid. The Commonwealth opposed the motion, and the Virginia Supreme Court denied it and dismissed the habeas petition, depriving petitioner of a further opportunity to investigate. The Virginia Supreme Court's denial of the motion is understandable in light of petitioner's vague allegations, but the443vagueness was not the fault of petitioner. Counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. The underdevelopment of these matters was attributable to Stinnett and Woodson, if anyone. We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings, § 2254(e)(2) will not bar him from developing them in federal court.The Court of Appeals held state habeas counsel was not diligent because petitioner's investigator on federal habeas discovered the relationships upon interviewing two jurors who referred in passing to Stinnett as "Bonnie Meinhard." See Brief for Petitioner 35. The investigator later confirmed Stinnett's prior marriage to Meinhard by checking Cumberland County's public records. See 189 F. 3d, at 426 ("The documents supporting [petitioner's] Sixth Amendment claims have been a matter of public record since Stinnett's divorce became final in 1979. Indeed, because [petitioner's] federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well"). We should be surprised, to say the least, if a district court familiar with the standards of trial practice were to hold that in all cases diligent counsel must check public records containing personal information pertaining to each and every juror. Because of Stinnett and Woodson's silence, there was no basis for an investigation into Stinnett's marriage history. Section 2254(e)(2) does not apply to petitioner's related claims of juror bias and prosecutorial misconduct.We further note the Commonwealth has not argued that petitioner could have sought relief in state court once he discovered the factual bases of these claims some time between appointment of federal habeas counsel on July 2, 1996, and the filing of his federal habeas petition on November 20, 1996. As an indigent, petitioner had 120 days following ap-444pointment of state habeas counsel to file a petition with the Virginia Supreme Court. Va. Code Ann. § 8.01-654.1 (1999). State habeas counsel was appointed on August 10, 1995, about a year before petitioner's investigator on federal habeas uncovered the information regarding Stinnett and Woodson. As state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts. In these circumstances, though the state courts did not have an opportunity to consider the new claims, petitioner cannot be said to have failed to develop them in state court by reason of having neglected to pursue remedies available under Virginia law.Our analysis should suffice to establish cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings. These courts, in light of cases such as Smith, supra, at 215 ("[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias"), will take due account of the District Court's earlier decision to grant an evidentiary hearing based in part on its belief that "Juror Stinnett deliberately failed to tell the truth on voir dire." Williams v. Netherland, Civ. Action No. 3:96CV529 (ED Va., Apr. 13, 1998), App. 529, 557.IVPetitioner alleges the Commonwealth failed to disclose an informal plea agreement with Cruse. The Court of Appeals rejected this claim on the merits under § 2254(d)(1), so it is unnecessary to reach the question whether § 2254(e)(2) would permit a hearing on the claim.445The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusWILLIAMS v. TAYLOR, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 99-6615. Argued February 28, 2000-Decided April 18, 2000After petitioner was convicted of two capital murders and other crimes, he was sentenced to death. The Supreme Court of Virginia affirmed on direct appeal and later dismissed petitioner's state habeas corpus petition. He then sought federal habeas relief, requesting, among other things, an evidentiary hearing on three constitutional claims, which he had been unable to develop in the state-court proceedings. Those claims were that (1) the prosecution had violated Brady v. Maryland, 373 U. S. 83, in failing to disclose a report of a pretrial psychiatric examination of Jeffrey Cruse, petitioner's accomplice and the Commonwealth's main witness against petitioner; (2) the trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias; and (3) a prosecutor committed misconduct in failing to reveal his knowledge of the juror's possible bias. The District Court granted an evidentiary hearing on, inter alia, the latter two claims, but denied a hearing on the Brady claim. Before any hearing could be held, however, the Fourth Circuit granted the Commonwealth's requests for an emergency stay and for a writ of mandamus and prohibition, which were based on the argument that an evidentiary hearing was prohibited by 28 U. S. C. §2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy § 2254(e)(2)'s requirements. In affirming, the Fourth Circuit agreed with petitioner's argument that the statute would not apply if he had exercised diligence in state court, but held, among other things, that he had not been diligent and so had "failed to develop the factual basis of [his three] claim[s] in State court," § 2254(e)(2). The court concluded that petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing.Held: Under §2254(e)(2), as amended by AEDPA, a "fail[ure] to develop" a claim's factual basis in state-court proceedings is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or his counsel. The statute does not bar the evidentiary hearing petitioner seeks on his juror bias and prosecutorial misconduct claims, but bars a hearing on his Brady claim because he "failed to421develop" that claim's factual basis in state court and concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency. Pp. 429-445.(a) Petitioner filed his federal habeas petition after AEDPA's effective date, so his case is controlled by § 2254(e)(2)'s opening clause, which specifies that "[i]f the [federal habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim" unless the applicant makes specified showings. Pp. 429-430.(b) The analysis begins with the language of the statute. Although "fail" is sometimes used in a neutral way, not importing fault or want of diligence, this is not the sense in which the word "failed" is used in § 2254(e)(2). A statute's words must be given their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. E. g., Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207. In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. If Congress had instead intended a "no-fault" standard, it would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not." This interpretation has support in Keeney v. Tamayo-Reyes, 504 U. S. 1, 8, whose threshold standard of diligence is codified in § 2254(e )(2)'s opening clause. The Court's interpretation also avoids putting § 2254(e)(2) in needless tension with § 2254(d), which authorizes habeas relief if the prisoner developed his claim in state court and can prove the state court's decision was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." This Court rejects the Commonwealth's arguments for a "no-fault" reading: that treating the prisoner's lack of diligence in state court as a prerequisite for application of § 2254(e )(2) renders a nullity of § 2254(e )(2)(A)(ii)'s provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence"; and that anything less than a no-fault understanding of § 2254(e )(2) is contrary to AEDPA's purpose to further comity, finality, and federalism principles. Pp. 431-437.(c) Petitioner did not exercise the diligence required to preserve his claim that nondisclosure of Cruse's psychiatric report contravened Brady. The report, which mentioned Cruse had little recollection of the murders because he was intoxicated at the time, was prepared before petitioner was tried; yet it was not raised by petitioner until he filed his federal habeas petition. Given evidence in the record that his state habeas counsel knew of the report's existence and its potential422Full Text of Opinion

1997_96-738

Deputy Solicitor General Dreeben, Joel M. Gershowitz, and Richard A. Friedman. *JUSTICE KENNEDY delivered the opinion of the Court. The case before us presents two questions: First, is the federal bribery statute codified at 18 U. S. C. § 666 limited to cases in which the bribe has a demonstrated effect upon federal funds? Second, does the conspiracy prohibition contained in the Racketeer Influenced and Corrupt Organizations Act (RICO) apply only when the conspirator agrees to commit two of the predicate acts RICO forbids? Ruling against the petitioner on both issues, we affirm the judgment of the Court of Appeals for the Fifth Circuit.IThis federal prosecution arose from a bribery scheme operated by Brigido Marmolejo, the Sheriff of Hidalgo County, Texas, and petitioner Mario Salinas, one of his principal deputies. In 1984, the United States Marshals Service and Hidalgo County entered into agreements under which the county would take custody of federal prisoners. In exchange, the Federal Government agreed to make a grant to the county for improving its jail and also agreed to pay the county a specific amount per day for each federal prisoner housed. Based on the estimated number of federal prisoners to be maintained, payments to the county were projected to be $915,785 per year. The record before us does not disclose the precise amounts paid. It is uncontested, however, that in each of the two periods relevant in this case the program resulted in federal payments to the county well in excess of the $10,000 amount necessary for coverage under 18 U. S. C. § 666. (We denied certiorari on the question whether the moneys paid to the county were "benefits" under a "Fed-* Joshua L. Dratel, Richard A. Greenberg, and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.55eral program" under § 666(b), and we assume for purposes of this opinion that the payments fit those definitions.)Homero Beltran-Aguirre was one of the federal prisoners housed in the jail under the arrangement negotiated between the Marshals Service and the county. He was incarcerated there for two intervals, first for 10 months and then for 5 months. During both custody periods, Beltran paid Marmolejo a series of bribes in exchange for so-called "contact visits" in which he remained alone with his wife or, on other occasions, his girlfriend. Beltran paid Marmolejo a fixed rate of $6,000 per month and $1,000 for each contact visit, which occurred twice a week. Petitioner Salinas was the chief deputy responsible for managing the jail and supervising custody of the prisoners. When Marmolejo was not available, Salinas arranged for the contact visits and on occasion stood watch outside the room where the visits took place. In return for his assistance with the scheme, Salinas received from Beltran a pair of designer watches and a pickup truck.Salinas and Marmolejo were indicted and tried together, but only Salinas' convictions are before us. Salinas was charged with one count of violating RICO, 18 U. S. C. § 1962(c), one count of conspiracy to violate RICO, § 1962(d), and two counts of bribery in violation of § 666(a)(1)(B). The jury acquitted Salinas on the substantive RICO count, but convicted him on the RICO conspiracy count and the bribery counts. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, United States v. Marmolejo, 89 F.3d 1185 (1996), and we granted certiorari, 519 U. S. 1148 (1997). To resolve the case, we consider first the bribery scheme, then the conspiracy.IISalinas contends the Government must prove the bribe in some way affected federal funds, for instance by diverting or misappropriating them, before the bribe violates56§ 666(a)(1)(B). The relevant statutory provisions are as follows:"(a) Whoever, if the circumstance described in subsection (b) of this section exists-"(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof-"(B) corruptly ... accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or"shall be fined under this title, imprisoned not more than 10 years, or both."(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in anyone year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance."(d) As used in this section-"(5) the term 'in anyone-year period' means a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense." 18 U. S. C. § 666.The enactment's expansive, unqualified language, both as to the bribes forbidden and the entities covered, does not support the interpretation that federal funds must be af-57fected to violate § 666(a)(1)(B). Subject to the $5,000 threshold for the business or transaction in question, the statute forbids acceptance of a bribe by a covered official who intends "to be influenced or rewarded in connection with any business, transaction, or series of transactions of [the defined] organization, government or agency." § 666(a)(1)(B). The prohibition is not confined to a business or transaction which affects federal funds. The word "any," which prefaces the business or transaction clause, undercuts the attempt to impose this narrowing construction. See United States v. James, 478 U. S. 597, 604-605, and n. 5 (1986); Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 529 (1947).Furthermore, the broad definition of the "circumstances" to which the statute applies provides no textual basis for limiting the reach of the bribery prohibition. The statute applies to all cases in which an "organization, government, or agency" receives the statutory amount of benefits under a federal program. § 666(b). The language reaches the scheme alleged, and proved, here.Neither does the statute limit the type of bribe offered.It prohibits accepting or agreeing to accept "anything of value." § 666(a)(1)(B). The phrase encompasses all transfers of personal property or other valuable consideration in exchange for the influence or reward. It includes, then, the personal property given to Salinas in exchange for the favorable treatment Beltran secured for himself. The statute's plain language fails to provide any basis for limiting § 666(a)(1)(B) to bribes affecting federal funds.Salinas attempts to circumscribe the statutory text by pointing to its legislative history. "Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. '[O]nly the most extraordinary showing of contrary intentions' in the legislative history will justify a departure from that language." United States v. Albertini, 472 U. S. 675, 680 (1985) (citations58omitted) (quoting Garcia v. United States, 469 U. S. 70, 75 (1984)); see also Ardestani v. INS, 502 U. S. 129, 135 (1991) (courts may deviate from the plain language of a statute only in "'rare and exceptional circumstances' ").The construction Salinas seeks cannot stand when viewed in light of the statutory framework in existence before § 666 was enacted and the expanded coverage prescribed by the new statute. Before § 666 was enacted, the federal criminal code contained a single, general bribery provision codified at 18 U. S. C. § 201. Section 201 by its terms applied only to "public official[s]," which the statute defined as "officer[s] or employee[s] or person[s] acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch." § 201(a). The Courts of Appeals divided over whether state and local employees could be considered "public officials" under § 201(a). Compare United States v. Del Toro, 513 F.2d 656, 661-662 (CA2), cert. denied, 423 U. S. 826 (1975), with United States v. Mosley, 659 F.2d 812, 814-816 (CA7 1981), and United States v. Hinton, 683 F. 2d 195, 197-200 (CA7 1982), aff'd sub nom. Dixson v. United States, 465 U. S. 482 (1984). Without awaiting this Court's resolution of the issue in Dixson, Congress enacted § 666 and made it clear that federal law applies to bribes of the kind offered to the state and local officials in Del Toro, as well as those at issue in Mosley and Hinton.As this chronology and the statutory language demonstrate, § 666(a)(1)(B) was designed to extend federal bribery prohibitions to bribes offered to state and local officials employed by agencies receiving federal funds. It would be incongruous to restrict § 666 in the manner Salinas suggests. The facts and reasoning of Del Toro give particular instruction in this respect. In that case, the Second Circuit held that a city employee was not a "public official" under § 201(a) even though federal funds would eventually cover 100% of59the costs and 80% of the salaries of the program he administered. 513 F. 2d, at 662. Because the program had not yet entered a formal request for federal funding, the Second Circuit reasoned, "[t]here were no existing committed federal funds for the purpose." Ibid. The enactment of § 666 forecloses this type of limitation. Acceptance of Salinas' suggestion that a bribe must affect federal funds before it falls within § 666(a)(1)(B) would run contrary to the statutory expansion that redressed the negative effects of the Second Circuit's narrow construction of § 201 in Del Toro. We need not consider whether the statute requires some other kind of connection between a bribe and the expenditure of federal funds, for in this case the bribe was related to the housing of a prisoner in facilities paid for in significant part by federal funds themselves. And that relationship is close enough to satisfy whatever connection the statute might require.Salinas argues in addition that our decisions in Gregory v.Ashcroft, 501 U. S. 452 (1991), and McNally v. United States, 483 U. S. 350 (1987), require a plain statement of congressional intent before § 666(a)(1)(B) can be construed to apply to bribes having no effect on federal funds. In so arguing, however, Salinas makes too much of Gregory and McNally. In each of those cases, we confronted a statute susceptible of two plausible interpretations, one of which would have altered the existing balance of federal and state powers. We concluded that, absent a clear indication of Congress' intent to change the balance, the proper course was to adopt a construction which maintains the existing balance. Gregory, supra, at 460-461; see also McNally, supra, at 360."No rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope .... " United States v. Raynor, 302 U. S. 540, 552 (1938). As we held in Albertini, supra, at 680:"Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license60for the judiciary to rewrite language enacted by the legislature. Heckler v. Mathews, 465 U. S. 728, 741-742 (1984). Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution. United States v. Locke, 471 U. S. 84, 95-96 (1985)."These principles apply to the rules of statutory construction we have followed to give proper respect to the federalstate balance. As we observed in applying an analogous maxim in Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996), "[w]e cannot press statutory construction to the point of disingenuous evasion even to avoid a constitutional question." Id., at 57, n. 9 (internal quotation marks omitted). Gregory itself held as much when it noted the principle it articulated did not apply when a statute was unambiguous. See 501 U. S., at 467. A statute can be unambiguous without addressing every interpretive theory offered by a party. It need only be "plain to anyone reading the Act" that the statute encompasses the conduct at issue. Ibid. Compare United States v. Bass, 404 U. S. 336, 349-350 (1971) (relying on Congress' failure to make a clear statement of its intention to alter the federal-state balance to construe an ambiguous firearm-possession statute to apply only to firearms affecting commerce), with United States v. Lopez, 514 U. S. 549, 561-562 (1995) (refusing to apply Bass to read a similar limitation into an unambiguous firearm-possession statute).The plain-statement requirement articulated in Gregory and McNally does not warrant a departure from the statute's terms. The text of § 666(a)(1)(B) is unambiguous on the point under consideration here, and it does not require the Government to prove federal funds were involved in the bribery transaction.Furthermore, there is no serious doubt about the constitutionality of § 666(a)(1)(B) as applied to the facts of this case. Beltran was without question a prisoner held in a jail61managed pursuant to a series of agreements with the Federal Government. The preferential treatment accorded to him was a threat to the integrity and proper operation of the federal program. Whatever might be said about § 666(a)(1)(B)'s application in other cases, the application of § 666(a)(1)(B) to Salinas did not extend federal power beyond its proper bounds. See Westfall v. United States, 274 U. S. 256, 259 (1927).In so holding, we do not address § 666(a)(1)(B)'s applicability to intangible benefits such as contact visits, because that question is not fairly included within the questions on which we granted certiorari. See Yee v. Escondido, 503 U. S. 519, 533 (1992). Nor do we review the Court of Appeals' determination that the transactions at issue "involv[ed] any thing of value of $5,000 or more," since Salinas does not offer any cognizable challenge to that aspect of the Court of Appeals' decision. We simply decide that, as a matter of statutory construction, § 666(a)(1)(B) does not require the Government to prove the bribe in question had any particular influence on federal funds and that under this construction the statute is constitutional as applied in this case.IIISalinas directs his second challenge to his conviction for conspiracy to violate RICO. There could be no conspiracy offense, he says, unless he himself committed or agreed to commit the two predicate acts requisite for a substantive RICO offense under § 1962(c). Salinas identifies a conflict among the Courts of Appeals on the point. Decisions of the First, Second, and Tenth Circuits require that, under the RICO conspiracy provision, the defendant must himself commit or agree to commit two or more predicate acts. See United States v. Sanders, 929 F.2d 1466, 1473 (CAlO), cert. denied, 502 U. S. 846 (1991); United States v. Ruggiero, 726 F. 2d 913, 921 (CA2), cert. denied sub nom. Rabito v. United States, 469 U. S. 831 (1984); United States v. Winter, 663 F. 2d621120, 1136 (CA1), cert. denied, 460 U. S. 1011 (1983). Eight other Courts of Appeals, including the Fifth Circuit in this case, take a contrary view. See United States v. Pryba, 900 F. 2d 748,760 (CA4), cert. denied, 498 U. S. 924 (1990); United States v. Kragness, 830 F.2d 842, 860 (CA8 1987); United States v. Neapolitan, 791 F.2d 489, 494-500 (CA7), cert. denied, 479 U. S. 940 (1986); United States v. Joseph, 781 F.2d 549, 554 (CA6 1986); United States v. Adams, 759 F.2d 1099, 1115-1116 (CA3), cert. denied, 474 U. S. 971 (1985); United States v. Tille, 729 F.2d 615, 619 (CA9), cert. denied, 469 U. S. 845 (1984); United States v. Carter, 721 F.2d 1514, 1529-1531 (CAll), cert. denied sub nom. Morris v. United States, 469 U. S. 819 (1984).Before turning to RICO's conspiracy provision, we note the substantive RICO offense, which was the goal of the conspiracy alleged in the indictment. It provides:"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U. S. C. § 1962(c).The elements predominant in a subsection (c) violation are: (1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 496 (1985). "Pattern of racketeering activity" is a defined term and requires at least two acts of "racketeering activity," the so-called predicate acts central to our discussion. 18 U. S. C. § 1961(5). "Racketeering activity," in turn, is defined to include "any act ... involving ... bribery ... which is chargeable under State law and punishable by imprisonment for more than one year." § 1961(1)(A). The Government's theory was that Salinas himself committed a substantive § 1962(c) RICO violation by conducting the en-63terprise's affairs through a pattern of racketeering activity that included acceptance of two or more bribes, felonies punishable in Texas by more than one year in prison. See Tex. Penal Code Ann. § 36.02(a)(1) (1994). The jury acquitted on the substantive count. Salinas was convicted of conspiracy, however, and he challenges the conviction because the jury was not instructed that he must have committed or agreed to commit two predicate acts himself. His interpretation of the conspiracy statute is wrong.The RICO conspiracy statute, simple in formulation,provides:"It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section." 18 U. S. C. § 1962(d).There is no requirement of some overt act or specific act in the statute before us, unlike the general conspiracy provision applicable to federal crimes, which requires that at least one of the conspirators have committed an "act to effect the object of the conspiracy." § 371. The RICO conspiracy provision, then, is even more comprehensive than the general conspiracy offense in § 371.In interpreting the provisions of § 1962(d), we adhere to a general rule: When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. See Morissette v. United States, 342 U. S. 246, 263 (1952). The relevant statutory phrase in § 1962(d) is "to conspire." We presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. See United States v. Socony- Vacuum Oil Co., 310 U. S. 150, 253-254 (1940). The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the64acts of each other. See Pinkerton v. United States, 328 U. S. 640, 646 (1946) ("And so long as the partnership in crime continues, the partners act for each other in carrying it forward"). If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. As Justice Holmes observed: "[P]lainly a person may conspire for the commission of a crime by a third person." United States v. Holte, 236 U. S. 140, 144 (1915). A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense. United States v. Rabinowich, 238 U. S. 78, 86 (1915).The point Salinas tries to make is in opposition to these principles, and is refuted by Bannon v. United States, 156 U. S. 464 (1895). There the defendants were charged with conspiring to violate the general conspiracy statute, id., at 464, which requires proof of an overt act. See supra, at 63. One defendant objected to the indictment because it did not allege he had committed an overt act. See Bannon, supra, at 468. We rejected the argument because it would erode the common-law principle that, so long as they share a common purpose, conspirators are liable for the acts of their coconspirators. We observed in Bannon: "To require an overt act to be proven against every member of the conspiracy, or a distinct act connecting him with the combination to be alleged, would not only be an innovation upon established principles, but would render most prosecutions for the offence nugatory." 156 U. S., at 469. The RICO conspiracy statute, § 1962(d), broadened conspiracy coverage by omitting the requirement of an overt act; it did not, at the same time, work the radical change of requiring the Government to prove each conspirator agreed that he would be the one to commit two predicate acts.Our recitation of conspiracy law comports with contemporary understanding. When Congress passed RICO in 1970, see Pub. L. 91-452, § 901(a), 84 Stat. 941, the American Law65Institute's Model Penal Code permitted a person to be convicted of conspiracy so long as he "agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime." Model Penal Code § 5.03(1)(a) (1962). As the drafters emphasized, "so long as the purpose of the agreement is to facilitate commission of a crime, the actor need not agree 'to commit' the crime." American Law Institute, Model Penal Code, Tent. Draft No. 10, p. 117 (1960). The Model Penal Code still uses this formulation. See Model Penal Code § 5.03(1)(a), 10 U. L. A. 501 (1974).A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, but it suffices that he adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself. See Callanan v. United States, 364 U. S. 587, 594 (1961).It makes no difference that the substantive offense under § 1962(c) requires two or more predicate acts. The interplay between subsections (c) and (d) does not permit us to excuse from the reach of the conspiracy provision an actor who does not himself commit or agree to commit the two or more predicate acts requisite to the underlying offense. True, though an "enterprise" under § 1962(c) can exist with only one actor to conduct it, in most instances it will be conducted by more than one person or entity; and this in turn may make it somewhat difficult to determine just where the enterprise ends and the conspiracy begins, or, on the other hand, whether the two crimes are coincident in their factual circumstances. In some cases the connection the defendant had to the al-66leged enterprise or to the conspiracy to further it may be tenuous enough so that his own commission of two predicate acts may become an important part of the Government's case. Perhaps these were the considerations leading some of the Circuits to require in conspiracy cases that each conspirator himself commit or agree to commit two or more predicate acts. Nevertheless, that proposition cannot be sustained as a definition of the conspiracy offense, for it is contrary to the principles we have discussed.In the case before us, even if Salinas did not accept or agree to accept two bribes, there was ample evidence that he conspired to violate subsection (c). The evidence showed that Marmolejo committed at least two acts of racketeering activity when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme. This is sufficient to support a conviction under § 1962(d).As a final matter, Salinas says his statutory interpretation is required by the rule of lenity. The rule does not apply when a statute is unambiguous or when invoked to engraft an illogical requirement to its text. See United States v. Shabani, 513 U. S. 10, 17 (1994).The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1997SyllabusSALINAS v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 96-738. Argued October 8, 1997-Decided December 2,1997This federal prosecution arose from a scheme in which a Texas county sheriff accepted money, and his deputy, petitioner Salinas, accepted two watches and a truck, in exchange for permitting women to make socalled "contact visits" to one Beltran, a federal prisoner housed in the county jail pursuant to an agreement with the Federal Government. Salinas was charged with one count of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1962(c), one count of conspiracy to violate RICO, § 1962(d), and two counts of bribery, § 666(a)(1)(B). The jury convicted him on all but the substantive RICO count, and the Fifth Circuit affirmed.Held:1. Section 666(a)(1)(B) does not require the Government to prove the bribe in question had a demonstrated effect upon federal funds. The enactment's plain language is expansive and unqualified, both as to the bribes forbidden and the entities covered, demonstrating by its reference to "any" business or transaction, § 666(a)(1)(B), that it is not confined to transactions affecting federal funds; by its application to all cases in which an "organization, government, or agency" receives a specified amount of federal benefits, § 666(b), that it reaches the scheme involved here; and by its prohibition on accepting "anything of value," § 666(a)(1)(B), that it encompasses the transfers of personal property to petitioner in exchange for his favorable treatment of Beltran. Given the statute's plain and unambiguous meaning, petitioner is not aided by the legislative history, see, e. g., United States v. Albertini, 472 U. S. 675, 680, or by the plain-statement rule set forth in Gregory v. Ashcroft, 501 U. S. 452, 460-461, and McNally v. United States, 483 U. S. 350, 360, see, e. g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 57, n. 9. Moreover, the construction he seeks cannot stand when viewed in light of the pre-§ 666 statutory framework-which limited federal bribery prohibitions to "public official[s]," defined as "officer[s] or employee[s] or person[s] acting for or on behalf of the United States, or any branch thereof," and which was interpreted by some lower courts not to include state and local officials-and the expansion prescribed by § 666(a)(1)(B), which was designed to extend coverage to bribes offered to state and local officials employed by agencies receiving federal funds. Under this53Court's construction, § 666(a)(1)(B) is constitutional as applied in this case. Its application to petitioner did not extend federal power beyond its proper bounds, since the preferential treatment accorded Beltran was a threat to the integrity and proper operation of the federal program under which the jail was managed. See Westfall v. United States, 274 U. S. 256, 259. Pp. 55-61.2. To be convicted of conspiracy to violate RICO under § 1962(d), the conspirator need not himself have committed or agreed to commit the two or more predicate acts, such as bribery, requisite for a substantive RICO offense under § 1962(c). Section 1962(d)-which forbids "any person to conspire to violate" § 1962(c)-is even more comprehensive than the general conspiracy provision applicable to federal crimes, § 371, since it contains no requirement of an overt or specific act to effect the conspiracy's object. Presuming Congress intended the "to conspire" phrase to have its ordinary meaning under the criminal law, see Morissette v. United States, 342 U. S. 246, 263, well-established principles and contemporary understanding demonstrate that, although a conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense, it suffices that he adopt the goal of furthering or facilitating the criminal endeavor, and he need not agree to undertake all of the acts necessary for the crime's completion. Salinas' contrary interpretation of § 1962(c) violates the foregoing principles and is refuted by Bannon v. United States, 156 U. S. 464, 469. Its acceptance, moreover, is not required by the rule of lenity, see United States v. Shabani, 513 U. S. 10, 17. Even if Salinas did not accept or agree to accept two bribes, there was ample evidence that the sheriff committed at least two predicate acts when he accepted numerous bribes and that Salinas knew about and agreed to facilitate the scheme, and this is sufficient to support Salinas' conviction under § 1962(d). Pp. 61-66.89 F.3d 1185, affirmed.KENNEDY, J., delivered the opinion for a unanimous Court.Francisco J. Enriquez argued the cause for petitioner.With him on the brief was Rolando Cantu. Gerald H. Goldstein and Cynthia Hujar Orr filed a brief for Brigido Marmolejo, Jr., as respondent under this Court's Rule 12.6, in support of petitioner.Paul R. Q. Wolfson argued the cause for the United States. With him on the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Keeney,54Full Text of Opinion

1982_81-897

STEVENS, J., filed a dissenting opinion,post, p. 459 U. S. 325.JUSTICE O'CONNOR delivered the opinion of the Court.In 1972, Congress amended the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1424, as Page 459 U. S. 299 amended, 33 U.S.C. § 901 et seq. (1976 ed. and Supp. V) (hereinafter LHWCA or Act). Before 1972, LHWCA coverage extended only to injuries sustained on the actual "navigable waters of the United States (including any dry dock)." 44 Stat. (part 2) 1426. As part of its 1972 Amendments of the Act, Congress expanded the "navigable waters" situs to include certain adjoining land areas, § 3(a), 86 Stat. 1251, 33 U.S.C. § 903(a). At the same time, Congress added a status requirement that employees covered by the Act must be "engaged in maritime employment" within the meaning of § 2(3) of the Act. [Footnote 1] We granted certiorari in this case, 455 U.S. 937 (1982), to consider whether a marine construction worker, who was injured while performing his job upon actual navigable waters, [Footnote 2] and who would have been covered by the Act before 1972, is "engaged in maritime employment," and thus covered by the amended Act. [Footnote 3] We hold that the worker is "engaged in maritime employment" for purposes of Page 459 U. S. 300 coverage under the amended LHWCA. Accordingly, we reverse the decision below.IThe facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 136th and 145th Streets in Manhattan. The project required that Perini place large, hollow circular pipes called caissons in the river, down to embedded rock, fill the caissons with concrete, connect the caissons together above the water with concrete beams, and place precast concrete slabs on the beams. The caissons were delivered by rail to the shore, where they were loaded onto supply barges and towed across the river to await unloading and installation.The injured worker, Raymond Churchill, was an employee of Perini in charge of all work performed on a cargo barge used to unload caissons and other materials from the supply barges and to set caissons in position for insertion into the embedded rock. Churchill was on the deck of the cargo barge giving directions to a crane operator engaged in unloading a caisson from a supply barge when a line used to keep the caissons in position snapped and struck Churchill. He sustained injuries to his head, leg, and thumb. [Footnote 4]Churchill filed a claim for compensation under the LHWCA. Perini denied that Churchill was covered by the Act, and, after a formal hearing pursuant to § 19 of the Act, 33 U.S.C. § 919 (1976 ed. and Supp. V), an Administrative Law Judge determined that Churchill was not "engaged in maritime employment" under § 2(3) of the Act because his job lacked "some relationship to navigation and commerce on navigable waters." App. to Pet. for Cert. 31a. Churchill and the Director, Office of Workers' Compensation Programs Page 459 U. S. 301 (Director), appealed to the Benefits Review Board, pursuant to § 21(b)(3) of the Act, 33 U.S.C. § 921(b)(3). The Board affirmed the Administrative Law Judge's denial of coverage on the theory that marine construction workers involved in building facilities not ultimately used in navigation or commerce upon navigable waters are not engaged in "maritime employment." 12 BRBS 929, 933 (1980). [Footnote 5] One Board Member dissented, arguing that"all injuries sustained in the course of employment by employees over 'navigable waters,' as that term was defined prior to the 1972 Amendments, are covered under the [amended] Act."Id. at 935. [Footnote 6]Churchill then sought review of the Board's decision in the Court of Appeals for the Second Circuit, under § 21(c) of the Act, 33 U.S.C. § 921(c). [Footnote 7] The Director participated as respondent, and filed a brief in support of Churchill's position. The Second Circuit denied Churchill's petition, relying on its decision in Fusco v. Perini North River Associates, 622 F.2d 1111 (1980), cert. denied, 449 U.S. 1131 (1981). According to the Second Circuit, Churchill was not in "maritime employment," because his employment lacked a "significant relationship to navigation or to commerce on navigable waters.'" Churchill v. Perini North River Associates, 652 F.2d 255, 256, n. 1 (1981). The Director now seeks review of the Second Circuit denial of Churchill's petition. The Director agrees with the position taken by the dissenting member of the Benefits Review Board: the LHWCA does not require Page 459 U. S. 302 that an employee show that his employment possesses a "significant relationship to navigation or to commerce," where, as here, the employee is injured while working upon the actual navigable waters in the course of his employment, and would have been covered under the pre-1972 LHWCA. [Footnote 8]IIBefore we consider whether Churchill is covered by the Act, we must address Perini's threshold contention that the Director does not have standing to seek review of the decision below. According to Perini, the Director's only interest in this case is in furthering a different interpretation of the Act than the one rendered by the Administrative Law Judge, the Benefits Review Board, and the Court of Appeals. [Footnote 9]Perini's claim ignores the procedural posture in which this case comes before the Court. That posture makes it unnecessary for us to consider whether the Director, as the agency Page 459 U. S. 303 official "responsible for the administration and enforcement" of the Act, [Footnote 10] has standing as an aggrieved party to seek review of the decision below. [Footnote 11] The Director is not alone in arguing that Churchill is covered under the LHWCA. Churchill, the injured employee, is before the Court as well. He has filed a brief in support of the Director's request for a writ of certiorari, and a brief addressing the merits of his claim, in which he presents the same arguments presented by the Director. But, for some reason that is not entirely clear, Churchill has not elected to seek review as a petitioner, and by virtue of the Rules of this Court, he is considered a party Page 459 U. S. 304 respondent. [Footnote 12] It is in this procedural context that Perini's challenge to Art. III standing must be considered. Perini concedes that the Director was a proper party respondent before the Court of Appeals in this litigation. [Footnote 13] As party respondent below, the Director is entitled under 28 U.S.C. § 1254(1) to petition for a writ of certiorari. Although the Director has statutory authority to seek review in this Court, he may not have Art. III standing to argue the merits of Churchill's claim, because the Director's presence does not guarantee the existence of a justiciable controversy with respect to the merits of Churchill's coverage under the LHWCA. However, the Director's petition makes Churchill an automatic respondent under our Rule 19.6, and, in that capacity, Churchill "may seek reversal of the judgment of the Court of Appeals on any ground urged in that court." O'Bannon v. Town Court Nursing Center, 447 U. S. 773, 447 U. S. 783-784, n. 14 (1980). The Director's petition, filed under 28 Page 459 U. S. 305 U.S.C. § 1254(1), brings Churchill before this Court, and there is no doubt that Churchill, as the injured employee, has a sufficient interest in this question to give him standing to urge our consideration of the merits of the Second Circuit decision.The constitutional dimension of standing theory requires, at the very least, that there be an "actual injury redressable by the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 426 U. S. 39 (1976). This requirement is meant"to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action,"as well as to assure "an actual factual setting in which the litigant asserts a claim of injury in fact." Valley Forge Christian College v. American United for Separation of Church and State, Inc., 454 U. S. 464, 454 U. S. 472 (1982). The presence of Churchill as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court.IIIThe question of Churchill's coverage is an issue of statutory construction and legislative intent. For reasons that we explain below, there is no doubt that Churchill, as a marine construction worker injured upon actual navigable waters in the course of his employment upon those waters, would have been covered by the LHWCA before Congress amended it in 1972. In deciding whether Congress intended to restrict the scope of coverage by adding the 2(3) status requirement, we must consider the scope of coverage under the pre-1972 Act and our cases construing the relevant portions of that Act. We must then focus on the legislative history and purposes of the 1972 Amendments to the LHWCA to determine their effect on preexisting coverage. Page 459 U. S. 306ABeginning with our decision in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), we held that there were certain circumstances in which States could not, consistently with Art. III, § 2, of the Constitution, provide compensation to injured maritime workers. [Footnote 14] If the employment of an injured worker was determined to have no "direct relation" to navigation or commerce, and "the application of local law [would not] materially affect" the uniformity of maritime law, then the employment would be characterized as "maritime but local," and the State could provide a compensation remedy. Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 257 U. S. 477 (1922). See also Western Fuel Co. v. Garcia, 257 U. S. 233, 257 U. S. 242 (1921). If the employment could not be characterized as "maritime but local," then the injured employee would be left without a compensation remedy.After several unsuccessful attempts to permit state compensation remedies to apply to injured maritime workers whose employment was not local, [Footnote 15] Congress passed the LHWCA in 1927, 44 Stat. (part 2) 1424. Under the original statutory scheme, a worker had to satisfy five primary conditions in order to be covered under the Act. First, the worker had to satisfy the "negative" definition of "employee" contained in § 2(3) of the 1927 Act in that he could not be a "master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net." Id. at 1425. [Footnote 16] Second, the Page 459 U. S. 307 worker had to suffer an "injury" defined by § 2(2) as "accidental injury or death arising out of and in the course of employment. . . ." Ibid. Third, the worker had to be employed by a statutory "employer," defined by § 2(4) as"an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock)."Ibid. [Footnote 17] Fourth, the worker had to meet a "situs" requirement contained in § 3(a) of the Act that limited coverage to workers whose "disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock)." Id. at 1426. Fifth, § 3(a) precluded federal compensation unless "recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law." Ibid.Federal compensation under the LHWCA did not initially extend to all maritime employees injured on the navigable waters in the course of their employment. As mentioned, § 3(a) of the 1927 Act permitted federal compensation only if compensation "may not validly be provided by State law." Ibid. This language was interpreted to exclude from LHWCA coverage those employees whose employment was "maritime but local." See, e.g., Crowell v. Benson, 285 U. S. 22 (1932). Application of the "maritime but local" doctrine required case-by-case determinations, and a worker was often required to make a perilous jurisdictional "guess" as to which of two mutually exclusive compensation schemes was applicable to cover his injury. Employers faced uncertainty as to whether their contributions to a state insurance fund would be sufficient to protect them from liability.In Davis v. Department of Labor, 317 U. S. 249 (1942), this Court recognized that, despite its many cases involving the Page 459 U. S. 308 "maritime but local" doctrine, it had "been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation. . . ." Id. at 317 U. S. 253. Employees and employers alike were thrust on "[t]he horns of [a] jurisdictional dilemma." Id. at 317 U. S. 255. [Footnote 18] Davis involved an employee Page 459 U. S. 309 who was injured while dismantling a bridge from a standing position on a barge. We upheld the application of the state compensation law in Davis not because the employee was engaged in "maritime but local" employment, but because we viewed the case as in a "twilight zone" of concurrent jurisdiction where LHWCA coverage was available and where the applicability of state law was difficult to determine. We held that doubt concerning the applicability of state compensation Acts was to be resolved in favor of the constitutionality of the state remedy. Relying in part on Davis, the Court in Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962), created further overlap between federal and state coverage for injured maritime workers. In Calbeck, we held that the LHWCA was"designed to ensure that a compensation remedy existed for all injuries sustained by employees [of statutory employers] on navigable waters, and to avoid uncertainty as to the source, state or federal, of that remedy."Id. at 370 U. S. 124. Our examination in Calbeck of the "complete legislative history" of the 1927 LHWCA revealed that Congress did not intend to incorporate the "maritime but local" doctrine in the Act. Id. at 370 U. S. 120."Congress used the phrase 'if recovery . . . may not validly be provided by State law' in a sense consistent with the delineation of coverage as reaching injuries occurring on navigable waters."Id. at 370 U. S. 126. [Footnote 19]Before 1972, there was little litigation concerning whether an employee was "in maritime employment" for purposes of being the employee of a statutory employer:"Workers who Page 459 U. S. 310 are not seamen but who nevertheless suffer injury on navigable waters are, no doubt (or so the courts have been willing to assume), engaged in 'maritime employment.'"G. Gilmore & C. Black, Law of Admiralty 428 (2d ed.1975) (Gilmore & Black). One case in which we did discuss the maritime employment requirement was Parker v. Motor Boat Sales, Inc., 314 U. S. 244 (1941). In Parker, the injured worker, hired as a janitor, was drowned while riding in one of his employer's motorboats keeping lookout for hidden objects under the water. When the employee's beneficiary sought LHWCA compensation, the employer argued that the employment was "so local in character'" that the State could validly have provided a remedy, and the § 3(a) language ("if recovery . . . may not validly be provided by State law") precluded federal relief. Id. at 314 U. S. 246. A unanimous Court rejected the employer's argument, and held that the employee was engaged in maritime employment, and that LHWCA coverage extended to an employee injured on the navigable waters in the course of his employment, without any further inquiry whether the injured worker's employment had a direct relation to navigation or commerce. [Footnote 20] In abolishing the "jurisdictional dilemma" created by the "maritime but local" doctrine, Calbeck relied heavily on Parker, see 370 U.S. at 370 U. S. 127-128. Page 459 U. S. 311It becomes clear from this discussion that the 1927 Act, as interpreted by Parker, Davis, and Calbeck, provided coverage to those employees of statutory "employers," injured while working upon navigable waters in the course of their employment. Indeed, the consistent interpretation given to the LHWCA before 1972 by the Director, the Deputy Commissioners, the courts, and the commentators was that (except for those workers specifically excepted in the statute), any worker injured upon navigable waters in the course of employment was "covered . . . without any inquiry into what he was doing (or supposed to be doing) at the time of his injury." Gilmore & Black, at 429-430. [Footnote 21] As a marine construction Page 459 U. S. 312 worker required to work upon navigable waters, and injured while performing his duties on navigable waters, there can be no doubt that Churchill would have been covered under the 1927 LHWCA. Page 459 U. S. 313BIn its "first significant effort to reform the 1927 Act and the judicial gloss that had been attached to it," Congress amended the LHWCA in 1972. Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 432 U. S. 261 (1977). The purposes of the 1972 Amendments were to raise the amount of compensation available under the LHWCA, to extend coverage of the Act to include certain contiguous land areas, to eliminate the longshoremen's strict liability seaworthiness remedy against shipowners, to eliminate shipowner's claims for indemnification from stevedores, and to promulgate certain administrative reforms. See S.Rep. No. 92-1125, p. 1 (1972) (hereinafter S.Rep.); H.R.Rep. No. 92-1441 (1972) (hereinafter H.R.Rep.).For purposes of the present inquiry, the important changes effected by the 1972 Amendments concerned the definition of "employee" in § 2(3), 33 U.S.C. § 902(3), and the description of coverage in § 3(a), 33 U.S.C. § 903(a). These amended sections provide:"The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net."§ 2(3), 33 U.S.C. § 902(3)."Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, Page 459 U. S. 314 repairing, or building a vessel). . . ."§ 3(a), as set forth in 33 U.S.C. § 903(a). [Footnote 22]"The 1972 Amendments thus changed what had been essentially only a 'situs' test of eligibility for compensation to one looking to both the 'situs' of the injury and the 'status' of the injured."Northeast Marine Terminal Co., supra, at 432 U. S. 264-265. In expanding the covered situs in § 3(a), Congress also removed the requirement, present in § 3(a) of the 1927 Act, that federal compensation would be available only if recovery "may not validly be provided by State law." The definition of "injury" remained the same, [Footnote 23] and the definition of "employer" was changed to reflect the new definition of "employee" in § 2(3). [Footnote 24] Page 459 U. S. 315The Director and Churchill claim that, when Congress added the status requirement in § 3(a), providing that a covered employee must be "engaged in maritime employment," it intended to restrict or define the scope of the increased coverage provided by the expanded situs provision in § 3(a), but that Congress had no intention to exclude from coverage workers, like Churchill, who were injured upon actual navigable waters, i.e., navigable waters as previously defined, in the course of their employment upon those waters.According to Perini, Congress intended to overrule legislatively this Court's decision in Calbeck, and the status requirement was added to ensure that both the landward coverage and seaward coverage would depend on the nature of the employee's duties at the time he was injured. Perini's theory, adopted by the court below, is that all coverage under the amended LHWCA requires employment having a "significant relationship to navigation or to commerce on navigable waters." [Footnote 25] Perini argues further that Churchill cannot meet the status test because he was injured while working on the construction of a foundation for a sewage treatment plant -- an activity not typically associated with navigation or commerce on navigable waters.We agree with the Director and Churchill. We are unable to find any congressional intent to withdraw coverage of the LHWCA from those workers injured on navigable waters in the course of their employment, and who would have been covered by the Act before 1972. As we have long held,"[t]his Act must be liberally construed in conformance with Page 459 U. S. 316 its purpose, and in a way which avoids harsh and incongruous results."Voris v. Eikel, 346 U. S. 328, 346 U. S. 333 (1953). See also Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U. S. 408, 284 U. S. 414 (1932); Northeast Marine Terminal Co., 432 U.S. at 432 U. S. 268.It is necessary to consider the context in which the 1972 Amendments were passed, especially as that context relates directly to the coverage changes that were effected. Despite the fact that Calbeck extended protection of the LHWCA to all employees injured upon navigable waters in the course of their employment, LHWCA coverage still stopped at the water's edge -- a line of demarcation established by Jensen. In Nacirema Operating Co. v. Johnson, 396 U. S. 212 (1969), we held that the LHWCA did not extend to longshoremen whose injuries occurred on the pier attached to the land. We recognized that there was much to be said for the uniform treatment of longshoremen irrespective of whether they were performing their duties upon the navigable waters (in which case they would be covered under Calbeck), or whether they were performing those same duties on a pier. We concluded, however, that, although Congress could exercise its authority to cover land-based maritime activity, "[t]he invitation to move that [Jensen] line landward must be addressed to Congress, not to this Court." 396 U.S. at 396 U. S. 224. See Victory Carriers, Inc. v. Law, 404 U. S. 202, 404 U. S. 216 (1971)."Congress responded with the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972." P.C. Pfeiffer Co. v. Ford, 444 U. S. 69, 444 U. S. 73 (1979). The 1972 Amendments were enacted after Committees in both the House and Senate prepared full Reports that summarized the general purposes of the legislation and contained an analysis of the changes proposed for each section. See S.Rep., supra; H.R.Rep., supra. These legislative Reports indicate clearly that Congress intended to "extend coverage to protect additional workers." S.Rep. at 1 (emphasis Page 459 U. S. 317 added). [Footnote 26] Although the legislative history surrounding the addition of the status requirement is not as clear as that concerning the reasons for the extended situs, it is clear that,"with the definition of 'navigable waters' expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate."Northeast Marine Terminal Co., supra, at 432 U. S. 264. This necessity gave rise to the status requirement:"The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity."S.Rep. at 13; H.R.Rep. at 11. This comment Page 459 U. S. 318 indicates that Congress intended the status requirement to define the scope of the extended landward coverage. [Footnote 27]There is nothing in these comments, or anywhere else in the legislative Reports, to suggest, as Perini claims, that Congress intended the status language to require that an employee injured upon the navigable waters in the course of his employment had to show that his employment possessed a direct (or substantial) relation to navigation or commerce in Page 459 U. S. 319 order to be covered. Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered. [Footnote 28] In discussing the added status requirement, the Senate Report states explicitly that the "maritime employment" requirement in § 3(a) was not meant to "exclude other employees traditionally covered." S.Rep. at 16. We may presume "that our elected representatives, like other citizens, know the law," Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 696-697 (1979), and that their use of "employees traditionally Page 459 U. S. 320 covered" was intended to refer to those employees included in the scope of coverage under Parker, Davis, and Calbeck. [Footnote 29]Other aspects of the statutory scheme support our understanding of the "maritime employment" status requirement. Congress removed from § 3(a) the requirement that, as a prerequisite to federal coverage, there can be no valid recovery under state law. [Footnote 30] As we noted in our discussion in Part Page 459 U. S. 321 459 U. S. supra, the continued use of the "maritime but local" doctrine occurred after passage of the 1927 Act, because the original coverage section contained this requirement that Congress explicitly deleted in 1972. Surely, if Congress wished to repeal Calbeck and other cases legislatively, it would do so by clear language, and not by removing from the statute the exact phrase that Calbeck found was responsible for continued emphasis on the "maritime but local" doctrine. [Footnote 31]Congressional intent to adhere to Calbeck is also indicated by the fact that the legislative Reports clearly identified those decisions that Congress wished to overrule by the 1972 Amendments. As mentioned above, the 1972 Amendments had other purposes apart from an expansion of coverage to shoreside areas. Two other purposes involved the elimination of a strict liability unseaworthiness remedy against a vessel owner afforded to longshoremen by Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), and an indemnity claim against the stevedore by the vessel owner afforded by Ryan Page 459 U. S. 322 Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956). The legislative Reports explicitly identified these decisions as intended to be overruled legislatively by the 1972 Amendments. See S.Rep. at 8-12; H.R.Rep. at 4-8. It is, therefore, highly unlikely that Congress would have intended to return to the "jurisdictional monstrosity" that Calbeck sought to lay to rest without at least some indication of its intent to do so.In considering the scope of the status test as applied to land-based employees in Northeast Marine Terminal Co., we rejected the "point of rest" theory proposed by the employer, under which landward coverage under the 1972 Amendments would include only the portion of the unloading process that takes place before longshoremen place the cargo onto the dock. We reasoned that the "point of rest" concept is"[a] theory that nowhere appears in the Act, that was never mentioned by Congress during the legislative process, that does not comport with Congress' intent, and that restricts the coverage of a remedial Act designed to extend coverage. . . ."The absence of the concept, "claimed to be so well known in the industry is both conspicuous and telling." 432 U.S. at 432 U. S. 278-279, 432 U. S. 275. In the same sense, the absence of even the slightest congressional allusion to the "maritime but local" doctrine, a concept that plagued maritime compensation law for over 40 years and that would have the effect of restricting coverage in the face of congressional intent not to "exclude other employees traditionally covered," is equally conspicuous and telling.Finally, we note that our conclusion concerning the continued coverage of employees injured on actual navigable waters in the course of their employment is consistent with, and supported by, our recent decision in Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980). In Sun Ship, the issue before the Court was whether extended shoreside coverage under the 1972 Amendments had the effect of displacing concurrent Page 459 U. S. 323 state remedies for landward injuries. After a review of the development of the "maritime but local" doctrine, and review of certain portions of the legislative history of the 1972 Amendments, we concluded that those Amendments were not intended to resurrect the dilemma, created by mutually exclusive spheres of jurisdiction, that Calbeck and Davis eliminated. Our reasoning was based, in part, on the removal by Congress of the language in the 1927 Act that made federal compensation available if recovery could not validly be provided by state law: "[T]he deletion of that language in 1972 -- if it indicates anything -- may logically only imply acquiescence in Calbec[k]. . . ." 447 U.S. at 447 U. S. 721.Sun Ship held that, with respect to land-based injuries, "the . . . extension of federal jurisdiction supplements, rather than supplants, state compensation law." Id. at 447 U. S. 720. If we were to hold that the addition of the status requirement was meant to exclude from coverage some employees injured on the actual navigable waters in the course of their employment, a most peculiar result would follow. Concurrent jurisdiction will exist with respect to the class of employees to whom Congress extended protection in 1972, while employees "traditionally covered" before 1972 would be faced with a hazardous pre-Davis choice of two exclusive jurisdictions from which to seek compensation. Such an anomalous result could not have been intended by Congress. We also note that a return to exclusive spheres of jurisdiction for workers injured upon the actual navigable waters would be inconsistent with express congressional desire to extend LHWCA jurisdiction landward in light of the inadequacy of most state compensation systems. See S.Rep. at 12; H.R.Rep. at 10.In holding that we can find no congressional intent to affect adversely the pre-1972 coverage afforded to workers injured upon the actual navigable waters in the course of their employment, we emphasize that we in no way hold that Congress Page 459 U. S. 324 meant for such employees to receive LHWCA coverage merely by meeting the situs test, and without any regard to the "maritime employment" language. [Footnote 32] We hold only that, when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement in § 2(3), and is covered under the LHWCA, providing, of course, that he is the employee of a statutory "employer," and is not excluded by any other provision of the Act. [Footnote 33] We consider these employees to be "engaged in maritime employment" not simply because they are injured in a historically maritime locale, but because they are required to perform their employment duties upon navigable waters. [Footnote 34] Page 459 U. S. 325IVIn conclusion, we are unable to find anything in the legislative history or in the 1972 Amendments themselves that indicate that Congress intended to withdraw coverage from employees injured on the navigable waters in the course of their employment as that coverage existed before the 1972 Amendments. On the contrary, the legislative history indicates that Congress did not intend to "exclude other employees traditionally covered." Moreover, Congress explicitly deleted the language from § 3(a) that we found in Calbeck to be responsible for the "jurisdictional dilemma" caused by two mutually exclusive spheres of jurisdiction over maritime injuries. Accordingly, the decision of the Court of Appeals is hereby reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtDirector, OWCP v. Perini North River Assocs., 459 U.S. 297 (1983)Director, Office of Workers' Compensation Programsv. Perini North River AssociatesNo. 81-897Argued October 4, 1982Decided January 11, 1983459 U.S. 297SyllabusBefore 1972, coverage under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA or Act) extended only to injuries sustained by workers on the actual "navigable waters of the United States (including any dry dock)." In 1972, the Act was amended by expanding the "navigable waters" situs to include certain adjoining land and by adding a status requirement that employees covered by the Act be "engaged in maritime employment" within the meaning of § 2(3) of the Act. In this case, an employee (Churchill) of respondent construction firm was injured while performing his job on the deck of a cargo barge being used in the construction of a sewage treatment plant extending over the Hudson River in New York. Churchill's claim for compensation under the LHWCA was administratively denied on the ground that he was not "engaged in maritime employment" under § 2(3). On Churchill's petition for review, in which the Director of the Office of Workers' Compensation Programs (Director) (petitioner here) participated as respondent in support of Churchill, the Court of Appeals held that Churchill was not in "maritime employment" because his employment lacked a "significant relationship to navigation or to commerce on navigable waters."Held:1. Where Churchill is a party respondent under this Court's Rule 19.6 and has filed a brief arguing for his coverage under the Act, there is a justiciable controversy before the Court. Accordingly, it is unnecessary to consider whether the Director, as the official responsible for administration and enforcement of the Act, has Art. III standing as an aggrieved party to seek review of the decision below. The Director's petition under 28 U.S.C. § 1254(1) brings Churchill before the Court, and he, as the injured employee, has a sufficient interest in the question at issue to give him standing to urge consideration of the merits of the Court of Appeals' decision. Pp. 459 U. S. 302-305.2. Churchill, as a marine construction worker injured while performing his job upon actual navigable waters, was "engaged in maritime employment" Page 459 U. S. 298 within the meaning of § 2(3), and thus was covered by the amended Act. Pp. 459 U. S. 305-325.(a) There is no doubt that Churchill would have been covered by the Act before it was amended in 1972. Pp. 459 U. S. 305-312.(b) There is nothing in the legislative history or in the 1972 Amendments themselves to indicate that Congress intended to withdraw coverage from employees injured on navigable waters in the course of their employment as that coverage existed before the 1972 Amendments, or that it intended the status language of § 2(3) to require that such an employee show that his employment possessed a direct or substantial relation to navigation or commerce in order to be covered. On the contrary, the legislative history indicates that Congress did not intend to "exclude employees traditionally covered." Moreover, Congress explicitly deleted language from the Act that was found in Calbeck v. Travelers Insurance Co., 370 U. S. 114, to be responsible for the "jurisdictional dilemma" created by the "maritime but local" doctrine whereby a maritime worker was often required to make a perilous jurisdictional "guess" as to which of the two mutually exclusive compensation schemes, i.e., the federal or the state scheme, was applicable to cover his injury. Pp. 459 U. S. 313-325.652 F.2d 255, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 459 U. S. 325. STEVENS, J., filed a dissenting opinion,post, p. 459 U. S. 325.

1959_229

MR. JUSTICE BLACK delivered the opinion of the Court.The single issue presented for decision in this case is whether the United States District Court in New Orleans, acting under 28 U.S.C. § 1404(a), erred in ordering that this action for damages to cargo from alleged unseaworthiness be transferred for trial, "in the interest of justice," to the United States District Court at Memphis, Tennessee, where the sinking of the barge occurred. The Court of Appeals affirmed the District Court's transfer order. 268 F.2d 240. We granted certiorari to consider this important question. 361 U.S. 811.The facts and circumstances on which the District Court transferred this case are these. Barge FBL-585, a respondent here under an ancient admiralty fiction, is owned by Federal Barge Lines, Inc., the other respondent. After the barge was partially loaded by petitioner, Continental Grain Co., with its soybeans at its wharf in Memphis, the barge sank, causing damage both to the barge and to the soybeans. A dispute arose over what caused it to sink. The barge owner, Federal Barge Lines, Inc., brought an action for damages in a Tennessee state court charging that the barge sank because the cargo owner, Continental Grain Co., had been negligent in loading it. The cargo owner later brought this action in the United States District Court in New Orleans against the barge and its owner, in a single complaint, charging that the vessel had sunk because of its defects and unseaworthiness, and claiming damages for injury to the cargo. In the meantime, the damage case against the grain company had been removed from the Tennessee state court to the United States District Court at Memphis. While the litigation arising out of this single occurrence was in this posture in the New Orleans and Memphis courts, the barge owner defendant at New Orleans filed a motion and accompanying affidavits under Page 364 U. S. 21 § 1404(a) to transfer "this action" to the United States District Court at Memphis, alleging that such transfer was "necessary for the convenience of the parties and witnesses and in the interest of justice. . . ." This followed the language of § 1404(a), which provides:"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."The New Orleans District Court found that the issue in the Memphis case,"that is, the cause of the casualty, is precisely the issue in the case at bar. The convenience of the great majority of witnesses in this case dictates that this case be tried in Memphis. The efficient administration of justice requires that this claim for cargo damage be tried by the same court which is trying the claim for hull damage, both claims being between the same parties, and relate to the same incident."These findings were well supported by evidence, were approved by the Court of Appeals, are not challenged here, and we accept them. The case, therefore, if tried in New Orleans, will bring about exactly the kind of mischievous consequences against "the interest of justice" that § 1404(a) was designed to prevent -- that is, unnecessary inconvenience and expense to parties, witnesses, and the public.The grain company argues that this frustration of the basic purpose of Congress in passing § 1404(a) is compelled by the language of the section that prevents the transfer of a "civil action" by a District Court to any District Court other than one "where it might have been brought." Two weeks ago, this Court decided in Hoffman Page 364 U. S. 22 v. Blaski and Sullivan v. Behimer, 363 U. S. 335, that this language bars transfer of a "civil action" properly pending in one District Court to another in which that "civil action" could not have been brought because the defendant legally could not have been subjected to suit there at the time when the case was originally filed. Those cases involved transfers in which the plaintiffs filing the suits would have had no right whatever to proceed originally against the defendants on the "civil actions" in the District Courts to which transfer was sought without the defendants, consent. But, in this case, there was admittedly a right on the part of the grain company to subject the owner of the barge, with or without its consent, to a "civil action" in Memphis at the time the New Orleans action was brought. Under these circumstances, it would plainly violate the express command of § 1404(a), as construed in our two prior cases, to reverse the District Court's judgment ordering this single civil action to be transferred to Memphis, unless transfer is barred by the joinder of the in rem claim against the barge with the claim against the owner itself. The grain company takes this view of the effect of joinder, arguing that, since the barge was in New Orleans when this "civil action" was brought, and the admiralty in rem claim therefore could not have been brought in Memphis at that time, the entire civil action must remain in the inconvenient New Orleans forum. This view is reached by labeling this single civil action as two, one against the barge and one against the owner. It asserts this view despite the fact that the grain company's suit against the barge and its suit against the owner are in the same complaint for the loss of the same cargo in the same sinking of the same barge producing the same damages. The basis of this view that there are two distinct civil actions for § 1404(a) purposes is a longstanding admiralty fiction that a vessel Page 364 U. S. 23 may be assumed to be a person for the purpose of filing a lawsuit and enforcing a judgment. [Footnote 1]The fiction relied upon has not been without its critics even in the field it was designed to serve. It has been referred to as "archaic," "an animistic survival from remote times," "irrational" and "atavistic." [Footnote 2] Perhaps this is going too far, since the fiction is one that certainly had real cause for its existence in its context and in the day and generation in which it was created. A purpose of the fiction, among others, has been to allow actions against ships where a person owning the ship could not be reached, and it can be very useful for this purpose still. We are asked here, however, to transplant this ancient saltwater admiralty fiction into the dry land context of forum non conveniens, where its usefulness and possibilities for good are questionable, at best. In fact, the fiction appears to have no relevance whatever in a District Court's determination of where a case can most conveniently be tried. A fiction born to provide convenient forums should not be transferred into a weapon to defeat that very purpose.This Court has not hesitated in the past to refuse to apply this same admiralty fiction in a way that would cut Page 364 U. S. 24 down, as it would here, the scope of congressional enactments. In fact, Mr. Justice Bradley, speaking for the Court, said at one time, in construing a statute which had limited a shipowner's liability but had failed to refer to the "personal" liability of the vessel:"To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man's liability for a demand against him is measured by the amount of the property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated. . . ."The City of Norwich, 118 U. S. 468, 118 U. S. 503. Fifty-seven years later, this Court was confronted with a similar argument about another section of the same statute, and, after referring to the analysis in The City of Norwich, concluded,"The riddle after more than half a century repeated to us in different context does not appear to us to have improved with age. . . . Congress has said that the owner shall not 'answer for' this loss in question. Claimant says this means in effect that he shall answer only with his ship. But the owner would never answer for a loss except with his property, since execution against the body was not at any time in legislative contemplation. There could be no practical exoneration of the owner that did not at the same time exempt his property."Consumers Import Co. v. Kabushiki Kaisha Kawasaki Zosenjo, 320 U. S. 249, 320 U. S. 253-254.We follow the common sense approach of these two cases in interpreting § 1404(a). Failure to do so would practically scuttle the forum non conveniens statute so far as admiralty actions are concerned. All a plaintiff would need to do to escape from it entirely would be to Page 364 U. S. 25 bring his action against both the owner and the ship, as was done here. This would be all the more unfortunate, since courts have long recognized "admiralty's approach to do justice with slight regard to formal matters," [Footnote 3] and, as this Court has recently observed,"Admiralty practice, which has served as the origin of much of our modern federal procedure, should not be tied to the mast of legal technicalities it has been the forerunner in eliminating from other federal practices."British Transport Comm'n v. United States, 354 U. S. 129, 354 U. S. 139.It is relevant that the law of admiralty itself is unconcerned about the technical distinctions between in rem and in personam actions for purposes of transferring admiralty actions from one court to a more convenient forum. This Court's Admiralty Rule 54, which prescribes the procedures for owners' limiting their liability after vessels have been libeled, provides in language broader than § 1404(a): "The District Court may, in its discretion, transfer the proceedings to any district for the convenience of the parties." And it may be further observed that courts have not felt themselves bound by this fiction when confronted with the argument that, because in rem and in personam actions involve different parties, therefore res judicata does not apply from an in personam action against an owner to an in rem action against his ship. [Footnote 4] It is interesting in this connection to take note of the fact that, according to the Court of Page 364 U. S. 26 Appeals opinion, the case at Memphis has already been tried. [Footnote 5] To permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent. Moreover, such a situation is conductive to a race of diligence among litigants for a trial in the District Court each prefers. These are additional reasons why § 1404(a) should not be made ambiguous by the importation of irrelevant fictions.The idea behind § 1404(a) is that, where a "civil action" to vindicate a wrong -- however brought in a court -- presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court. That situation exists here. Although the action in New Orleans was technically brought against the barge itself, as well as its owner, the obvious fact is that, whatever other advantages may result, this is an alternative way of bringing the owner into court. And although any judgment for the cargo owner will be technically enforceable against the barge as an entity as well as its owner, the practical economic fact of the matter is that the money paid in satisfaction of it will have to come out of the barge owner's pocket -- including the possibility of a levy upon the barge even had the cargo owner not prayed for "personified" in rem relief. The crucial issues about fault and damages suffered were identical, whether considered as a claim against the ship or its owner. The witnesses were identical. Thus, while two methods were invoked to bring the owner into court and enforce any judgment against it, the substance of what had to be done to adjudicate the rights of the parties was not different at all. Page 364 U. S. 27 Treating both methods for § 1404(a) purposes for what they are in a case like this -- inseparable parts of one single "civil action" -- merely permits or requires parties to try their issues in a single "civil action" in a court where it "might have been brought." To construe § 1404(a) this way merely carries out its design to protect litigants, witnesses and the public against unnecessary inconvenience and expense, not to provide a shelter for in rem admiralty proceedings in costly and inconvenient forums.For the reasons stated here, the judgment isAffirmed

U.S. Supreme CourtContinental Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960)Continental Grain Co. v. Barge FBL-585No. 229Argued April 20, 1960Decided June 27, 1960364 U.S. 19SyllabusWhile a barge was being loaded at Memphis, it sank, with resulting damage to both the barge and the cargo. The barge owner sued the cargo owner in a Tennessee State Court for damages alleged to have resulted from negligence in loading it, and that case was removed to the Federal District Court at Memphis. The cargo owner then brought this action in the Federal District Court at New Orleans against the barge and its owner, claiming damages to the cargo resulting from unseaworthiness. The barge owner then moved under 28 U.S.C. § 1404(a) for transfer of this case to the Federal District Court at Memphis, alleging that such transfer was "necessary for the convenience of the parties and witnesses and in the interest of justice." Finding these allegations to be true, the District Court at New Orleans transferred the case to the District Court at Memphis.Held: it did not err in doing so. Pp. 364 U. S. 20-27.(a) Insofar as this is a "civil action" against the barge owner, it clearly was transferable to the District Court at Memphis, since the plaintiff could have brought this action in that court. Hoffman v. Blaski, 363 U. S. 335, distinguished. P. 364 U. S. 22.(b) Transfer of this action to the District Court at Memphis is not barred by the fact that fictionally it is also an in rem proceeding against the barge itself, which was not within the jurisdiction of the District Court at Memphis when this action was brought. Pp. 364 U. S. 22-27.268 F.2d 240, affirmed. Page 364 U. S. 20

1999_98-1170

General Robinson, Deputy Solicitor General Dreeben, and Deborah Watson.Beverly Van Ness argued the cause and filed a brief for respondent. *JUSTICE SCALIA delivered the opinion of the Court.In this case we consider whether it was constitutional for a prosecutor, in her summation, to call the jury's attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly.IRespondent's trial on 19 sodomy and assault counts and 3 weapons counts ultimately came down to a credibility determination. The alleged victim, Nessa Winder, and her friend, Breda Keegan, testified that respondent physically assaulted, raped, and orally and anally sodomized Winder, and that he threatened both women with a handgun. Respondent testified that he and Winder had engaged in consensual vaginal intercourse. He further testified that during an argument he had with Winder, he struck her once in the face. He denied raping her or threatening either woman with a handgun.During summation, defense counsel charged Winder and Keegan with lying. The prosecutor similarly focused on the credibility of the witnesses. She stressed respondent's interest in the outcome of the trial, his prior felony conviction, and his prior bad acts. She argued that respondent was a "smooth slick character ... who had an answer for every-*Briefs of amici curiae urging reversal were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the New York State District Attorneys Association by William J. Fitzpatrick, Steven A. Hovani, and Michael J. Miller.Deanne E. Maynard and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.64thing," App. 45, and that part of his testimony "sound[ed] rehearsed," id., at 48. Finally, over defense objection, the prosecutor remarked:"You know, ladies and gentlemen, unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies."That gives you a big advantage, doesn't it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence?"He's a smart man. I never said he was stupid ....He used everything to his advantage." Id., at 49.The trial court rejected defense counsel's claim that these last comments violated respondent's right to be present at trial. The court stated that respondent's status as the last witness in the case was simply a matter of fact, and held that his presence during the entire trial, and the advantage that this afforded him, "may fairly be commented on." Id., at 54.Respondent was convicted of one count of anal sodomy and two counts of third-degree possession of a weapon. On direct appeal, the New York Supreme Court reversed one of the convictions for possession of a weapon but affirmed the remaining convictions. People v. Agard, 199 App. Div. 2d 401, 606 N. Y. S. 2d 239 (2d Dept. 1993). The New York Court of Appeals denied leave to appeal. People v. Agard, 83 N. Y. 2d 868, 635 N. E. 2d 298 (1994).Respondent then filed a petition for habeas corpus relief in federal court, claiming, inter alia, that the prosecutor's comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers. He further claimed that the comments violated his Fourteenth Amend-65ment right to due process. The District Court denied the petition in an unpublished order. A divided panel of the Second Circuit reversed, holding that the prosecutor's comments violated respondent's Fifth, Sixth, and Fourteenth Amendment rights. 117 F.3d 696 (1997), rehearing denied, 159 F.3d 98 (1998). We granted certiorari. 526 U. S. 1016 (1999).IIRespondent contends that the prosecutor's comments on his presence and on the ability to fabricate that it afforded him unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against him, see Illinois v. Allen, 397 U. S. 337 (1970); Pointer v. Texas, 380 U. S. 400 (1965), and his Fifth and Sixth Amendment rights to testify on his own behalf, see Rock v. Arkansas, 483 U. S. 44 (1987). Attaching the cost of impeachment to the exercise of these rights was, he asserts, unconstitutional.Respondent's argument boils down to a request that we extend to comments of the type the prosecutor made here the rationale of Griffin v. California, 380 U. S. 609 (1965), which involved comments upon a defendant's refusal to testify. In that case, the trial court instructed the jury that it was free to take the defendant's failure to deny or explain facts within his knowledge as tending to indicate the truth of the prosecution's case. This Court held that such a comment, by "solemniz[ing] the silence of the accused into evidence against him," unconstitutionally "cuts down on the privilege [against self-incrimination] by making its assertion costly." Id., at 614.We decline to extend Griffin to the present context. As an initial matter, respondent's claims have no historical foundation, neither in 1791, when the Bill of Rights was adopted, nor in 1868 when, according to our jurisprudence, the Fourteenth Amendment extended the strictures of the Fifth and Sixth Amendments to the States. The process by which66criminal defendants were brought to justice in 1791 largely obviated the need for comments of the type the prosecutor made here. Defendants routinely were asked (and agreed) to provide a pretrial statement to a justice of the peace detailing the events in dispute. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination 109, 112, 114 (R. Helmholz et al. eds. 1997). If their story at trial-where they typically spoke and conducted their defense personally, without counsel, see J. Goebel & T. Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776), p. 574 (1944); A. Scott, Criminal Law in Colonial Virginia 79 (1930)-differed from their pretrial statement, the contradiction could be noted. See Levy, Origins of the Fifth Amendment and Its Critics, 19 Cardozo L. Rev. 821, 843 (1997). Moreover, what they said at trial was not considered to be evidence, since they were disqualified from testifying under oath. See 2 J. Wigmore, Evidence § 579 (3d ed. 1940).The pretrial statement did not begin to fall into disuse until the 1830's, see Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against SelfIncrimination, supra, at 198, and the first State to make defendants competent witnesses was Maine, in 1864, see 2 Wigmore, supra, § 579, at 701. In response to these developments, some States attempted to limit a defendant's opportunity to tailor his sworn testimony by requiring him to testify prior to his own witnesses. See 3 J. Wigmore, Evidence §§ 1841, 1869 (1904); Ky. Stat., ch. 45, § 1646 (1899); Tenn. Code Ann., ch. 4, § 5601 (1896). Although the majority of States did not impose such a restriction, there is no evidence to suggest they also took the affirmative step of forbidding comment upon the defendant's opportunity to tailor his testimony. The dissent faults us for "call[ing] up no instance of an 18th- or 19th-century prosecutor's urging that a defendant's presence at trial facilitated tailored testimony." Post,67at 84 (opinion of GINSBURG, J.). We think the burden is rather upon respondent and the dissent, who assert the unconstitutionality of the practice, to come up with a case in which such urging was held improper. They cannot even produce one in which the practice was so much as challenged until after our decision in Griffin. See, e. g., State v. Cassidy, 236 Conn. 112, 126-127, 672 A. 2d 899, 907-908 (1996); People v. Buckey, 424 Mich. 1, 8-15, 378 N. W. 2d 432, 436439 (1985); Jenkins v. United States, 374 A. 2d 581, 583-584 (D. C. 1977). This absence cuts in favor of respondent (as the dissent asserts) only if it is possible to believe that after reading Griffin prosecutors suddenly realized that commenting on a testifying defendant's unique ability to hear prior testimony was a good idea. Evidently, prosecutors were making these comments all along without objection; Griffin simply sparked the notion that such commentary might be problematic.Lacking any historical support for the constitutional rights that he asserts, respondent must rely entirely upon our opinion in Griffin. That case is a poor analogue, however, for several reasons. What we prohibited the prosecutor from urging the jury to do in Griffin was something the jury is not permitted to do. The defendant's right to hold the prosecution to proving its case without his assistance is not to be impaired by the jury's counting the defendant's silence at trial against him-and upon request the court must instruct the jury to that effect. See Carter v. Kentucky, 450 U. S. 288 (1981). It is reasonable enough to expect a jury to comply with that instruction since, as we observed in Griffin, the inference of guilt from silence is not always "natural or irresistible." 380 U. S., at 615. A defendant might refuse to testify simply out of fear that he will be made to look bad by clever counsel, or fear "'that his prior convictions will prejudice the jury.'" Ibid. (quoting People v. Modesto, 62 Cal. 2d 436, 453, 398 P. 2d 753, 763 (1965) (en banc)). By contrast, it is natural and irresistible for a jury, in evaluating68the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him. It is one thing (as Griffin requires) for the jury to evaluate all the other evidence in the case without giving any effect to the defendant's refusal to testify; it is something else (and quite impossible) for the jury to evaluate the credibility of the defendant's testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses. Thus, the principle respondent asks us to adopt here differs from what we adopted in Griffin in one or the other of the following respects: It either prohibits inviting the jury to do what the jury is perfectly entitled to do; or it requires the jury to do what is practically impossible.11 The dissent seeks to place us in the position of defending the proposition that inferences that the jury is free to make are inferences that the prosecutor must be free to invite. Post, at 86-87. Of course we say no such thing. We simply say (in the sentence to which this note is appended) that forbidding invitation of a permissible inference is one of two alternative respects in which this case is substantially different from respondent's sole source of support, Griffin. Similarly, the dissent seeks to place us in the position of defending the proposition that it is more natural to infer tailoring from presence than to infer guilt from silence. Post, at 84-86. The quite different point we do make is that inferring opportunity to tailor from presence is inevitable, and prohibiting that inference (while simultaneously asking the jury to evaluate the veracity of the defendant's testimony) is demanding the impossible-producing the other alternative respect in which this case differs from Griffin.The dissent seeks to rebut this point by asserting that in the present case the prosecutorial comments went beyond pointing out the opportunity to tailor and actually made an accusation of tailoring. It would be worth inquiring into that subtle distinction if the dissent proposed to permit the former while forbidding the latter. It does not, of course; nor, as far as we know, does any other authority. Drawing the line between pointing out the availability of the inference and inviting the inference would be neither useful nor practicable. Thus, under the second alternative described above, the jury must be prohibited from taking into account the opportunity of tailoring.69Second, Griffin prohibited comments that suggest a defendant's silence is "evidence of guilt." 380 U. S., at 615 (emphasis added); see also United States v. Robinson, 485 U. S. 25, 32 (1988) (" 'Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt'" (quoting Baxter v. Palmigiano, 425 U. S. 308, 319 (1976))). The prosecutor's comments in this case, by contrast, concerned respondent's credibility as a witness, and were therefore in accord with our longstanding rule that when a defendant takes the stand, "his credibility may be impeached and his testimony assailed like that of any other witness." Brown v. United States, 356 U. S. 148, 154 (1958). "[W]hen [a defendant] assumes the role of a witness, the rules that generally apply to other witnesses-rules that serve the truthseeking function of the trial-are generally applicable to him as well." Perry v. Leeke, 488 U. S. 272, 282 (1989). See also Reagan v. United States, 157 U. S. 301, 305 (1895).Respondent points to our opinion in Geders v. United States, 425 U. S. 80, 87-91 (1976), which held that the defendant must be treated differently from other witnesses insofar as sequestration orders are concerned, since sequestration for an extended period of time denies the Sixth Amendment right to counsel. With respect to issues of credibility, however, no such special treatment has been accorded. Jenkins v. Anderson, 447 U. S. 231 (1980), illustrates the point. There the prosecutor in a first-degree murder trial, during cross-examination and again in closing argument, attempted to impeach the defendant's claim of self-defense by suggesting that he would not have waited two weeks to report the killing if that was what had occurred. In an argument strikingly similar to the one presented here, the defendant in Jenkins claimed that commenting on his prearrest silence violated his Fifth Amendment privilege against selfincrimination because "a person facing arrest will not remain silent if his failure to speak later can be used to impeach70him." Id., at 236. The Court noted that it was not clear whether the Fifth Amendment protects prearrest silence, id., at 236, n. 2, but held that, assuming it does, the prosecutor's comments were constitutionally permissible. "[T]he Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.''' Id., at 236 (quoting Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973)). Once a defendant takes the stand, he is "'subject to crossexamination impeaching his credibility just like any other witness.''' Jenkins, supra, at 235-236 (quoting GrunewaldIndeed, in Brooks v. Tennessee, 406 U. S. 605 (1972), the Court suggested that arguing credibility to the jury-which would include the prosecutor's comments here-is the preferred means of counteracting tailoring of the defendant's testimony. In that case, the Court found unconstitutional Tennessee's attempt to defeat tailoring by requiring defendants to testify at the outset of the defense or not at all. This requirement, it said, impermissibly burdened the defendant's right to testify because it forced him to decide whether to do so before he could determine that it was in his best interest. Id., at 610. The Court expressed its awareness, however, of the danger that tailoring presented. The antidote, it said, was not Tennessee's heavy-handed rule, but the more nuanced "adversary system[, which] reposes judgment of the credibility of all witnesses in the jury." Id., at 611. The adversary system surely envisions-indeed, it requiresthat the prosecutor be allowed to bring to the jury's attention the danger that the Court was aware of.Respondent and the dissent also contend that the prosecutor's comments were impermissible because they were "generic" rather than based upon any specific indication of tailoring. Such comment, the dissent claims, is unconstitutional because it "does not serve to distinguish guilty defendants from innocent ones." Post, at 77. But this Court has71approved of such "generic" comment before. In Reagan, for example, the trial court instructed the jury that "[t]he deep personal interest which [the defendant] may have in the result of the suit should be considered ... in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit." 157 U. S., at 304. The instruction did not rely on any specific evidence of actual fabrication for its application; nor did it, directly at least, delineate the guilty and the innocent. Like the comments in this case, it simply set forth a consideration the jury was to have in mind when assessing the defendant's credibility, which, in turn, assisted it in determining the guilt of the defendant. We deemed that instruction perfectly proper. Thus, that the comments before us here did not, of their own force, demonstrate the guilt of the defendant, or even distinguish among defendants, does not render them infirm.2Finally, the Second Circuit held, and the dissent contends, that the comments were impermissible here because they were made, not during cross-examination, but at summation,2 The dissent's stern disapproval of generic comment (it "tarnishes the innocent no less than the guilty," post, at 77-78; it suffers from an "incapacity to serve the individualized truth-finding function of trials," post, at 80; so that "when a defendant's exercise of a constitutional fair trial right is 'insolubly ambiguous' as between innocence and guilt, the prosecutor may not urge the jury to construe the bare invocation of the right against the defendant," post, at 78) hardly comports with its praising the Court of Appeals for its "carefully restrained and moderate position" in forbidding this monstrous practice only on summation and allowing it during the rest of the trial, ibid. The dissent would also allow a prosecutor to remark at any time-even at summation--on the convenient "fit" between specific elements of a defendant's testimony and the testimony of others. Ibid. It is only a "general accusation of tailoring" that is forbidden. Ibid. But if the dissent believes that comments which "invite the jury to convict on the basis of conduct as consistent with innocence as with guilt" should be out of bounds, post, at 79-or at least should be out of bounds in summation-comments focusing on such "fit" must similarly be forbidden. As the dissent acknowledges, "fit" is as likely to result from the defendant's "sheer innocence" as from anything else. Post, at 85.72leaving the defense no opportunity to reply. 117 F. 3d, at 708, and n. 6. That this is not a constitutionally significant distinction is demonstrated by our decision in Reagan. There the challenged instruction came at the end of the case, after the defense had rested, just as the prosecutor's comments did here.3Our trial structure, which requires the defense to close before the prosecution, regularly forces the defense to predict what the prosecution will say. Indeed, defense counsel in this case explained to the jury that it was his job in "closing argument here to try and anticipate as best [he could] some of the arguments that the prosecution [would] be making." App. 25-27. What Reagan permitted-a generic3 The dissent maintains that Reagan v. United States, 157 U. S. 301 (1895), is inapposite to the question presented in this case because it considered the effect of an interested-witness instruction on a defendant's statutory right to testify, rather than on his constitutional right to testify. See id., at 304 (citing Act of Mar. 16, 1878, ch. 37,20 Stat. 30, as amended, 18 U. S. C. § 3481). That is a curious position for the dissent to take. Griffin-the case the dissent claims controls the outcome here-relied almost exclusively on the very statute at issue in Reagan in defining the contours of the Fifth Amendment right prohibiting comment on the failure to testify. After quoting the Court's description, in an earlier case, of the reasons for the statutory right, see Wilson v. United States, 149 U. S. 60 (1893), the Griffin Court said: "If the words 'Fifth Amendment' are substituted for 'act' and for 'statute,' the spirit of the Self-Incrimination Clause is reflected." 380 U. S., at 613-614. It is eminently reasonable to consider that a questionable manner of constitutional exegesis, see Mitchell v. United States, 526 U. S. 314, 336 (1999) (SCALIA, J., dissenting); it is not reasonable to make Griffin the very centerpiece of one's case while simultaneously denying that the statute construed in Reagan (and Griffin) has anything to do with the meaning of the Constitution. The interpretation of the statute in Reagan is in fact a much more plausible indication of constitutional understanding than the application of the statute in Griffin: The Constitution must have allowed what Reagan said the statute permitted, because otherwise the Court would have been interpreting the statute in a manner that rendered it void. Griffin, on the other hand, relied upon the much shakier proposition that a practice which the statute prohibited must be prohibited by the Constitution as well.73interested-witness instruction, after the defense has closedis in a long tradition that continues to the present day. See, e. g., United States v. Jones, 587 F.2d 802 (CAS 1979); United States v. Hill, 470 F.2d 361 (CADC 1972); 2 C. Wright, Federal Practice and Procedure § 501, and n. 1 (1982). Indeed, the instruction was given in this very case. See Tr. 834 ("A defendant is of course an interested witness since he is interested in the outcome of the trial. You may as jurors wish to keep such interest in mind in determining the credibility and weight to be given to the defendant's testimony").4 There is absolutely nothing to support the dissent's contention that for purposes of determining the validity of generic attacks upon credibility "the distinction between crossexamination and summation is critical," post, at 87.In sum, we see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate-and indeed, given the inability to sequester the defendant, sometimes essential-to the central function of the trial, which is to discover the truth.4 It is hard to understand how JUSTICE STEVENS reconciles the unquestionable propriety of the standard interested-witness instruction with his conclusion that comment upon the opportunity to tailor, although it is constitutional, "demean[s] [the adversary] process" and "should be discouraged." Post, at 76 (opinion concurring in judgment). Our decision, in any event, is addressed to whether the comment is permissible as a constitutional matter, and not to whether it is always desirable as a matter of sound trial practice. The latter question, as well as the desirability of putting prosecutorial comment into proper perspective by judicial instruction, are best left to trial courts, and to the appellate courts which routinely review their work.74IIIFinally, we address the Second Circuit's holding that the prosecutor's comments violated respondent's Fourteenth Amendment right to due process. Of course to the extent this claim is based upon alleged burdening of Fifth and Sixth Amendment rights, it has already been disposed of by our determination that those Amendments were not infringed. Cf. Graham v. Connor, 490 U. S. 386, 395 (1989) (where an Amendment "provides an explicit textual source of constitutional protection ... that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing [the] claims").Respondent contends, however, that because New York law required him to be present at his trial, see N. Y. Crim. Proc. Law § 260.20 (McKinney 1993); N. Y. Crim. Proc. Law § 340.50 (McKinney 1994), the prosecution violated his right to due process by commenting on that presence. He asserts that our decision in Doyle v. Ohio, 426 U. S. 610 (1976), requires such a holding. In Doyle, the defendants, after being arrested for selling marijuana, received their Miranda warnings and chose to remain silent. At their trials, both took the stand and claimed that they had not sold marijuana, but had been "framed." 426 U. S., at 613. To impeach the defendants, the prosecutors asked each why he had not related this version of events at the time he was arrested. We held that this violated the defendants' rights to due process because the Miranda warnings contained an implicit "assurance that silence will carry no penalty." 426 U. S., at 618.Although there might be reason to reconsider Doyle, we need not do so here. "[WJe have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." Fletcher v. Weir, 455 U. S. 603, 606 (1982) (per curiam). The Miranda warnings had, after all, specifically given the defendant both the option of speaking and the option of remaining silent-and had then gone75on to say that if he chose the former option what he said could be used against him. It is possible to believe that this contained an implicit promise that his choice of the option of silence would not be used against him. It is not possible, we think, to believe that a similar promise of impunity is implicit in a statute requiring the defendant to be present at trial.Respondent contends that this case contains an element of unfairness even worse than what existed in Doyle: Whereas the defendant in that case had the ability to avoid impairment of his case by choosing to speak rather than remain silent, the respondent here (he asserts) had no choice but to be present at the trial. Though this is far from certain, see, e. g., People v. Aiken, 45 N. Y. 2d 394, 397, 380 N. E. 2d 272, 274 (1978) ("[A] defendant charged with a felony not punishable by death may, by his voluntary and willful absence from trial, waive his right to be present at every stage of his trial"), we shall assume for the sake of argument that it is true. There is, however, no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. If the ability to avoid the accusation (or suspicion) of tailoring were as crucial a factor as respondent contends, one would expect criminal defendants-in jurisdictions that do not have compulsory attendance requirements-frequently to absent themselves from trial when they intend to give testimony. But to our knowledge, a criminal trial without the defendant present is a rarity. Many long established elements of criminal procedure deprive a defendant of advantages he would otherwise possess-for example, the requirement that he plead to the charge before, rather than after, all the evidence is in. The consequences of the requirement that he be present at trial seem to us no worse.***For the foregoing reasons, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case76is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusPORTUONDO, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY v. AGARDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 98-1170. Argued November 1, 1999-Decided March 6, 2000Respondent was convicted on New York criminal charges after a trial that required the jury to decide whether it believed the testimony of the victim and her friend or the conflicting testimony of respondent. The prosecutor challenged respondent's credibility during summation, calling the jury's attention to the fact that respondent had the opportunity to hear all other witnesses testify and to tailor his own testimony accordingly. The trial court rejected respondent's objection that these comments violated his right to be present at trial. After exhausting his state appeals, respondent filed a petition for habeas corpus in federal court claiming, inter alia, that the prosecutor's comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers, and his Fourteenth Amendment right to due process. The District Court denied his petition, but the Second Circuit reversed.Held:1. The prosecutor's comments did not violate respondent's Fifth and Sixth Amendment rights. The Court declines to extend to such comments the rationale of Griffin v. California, 380 U. S. 609, in which it held that a trial court's instruction about a defendant's refusal to testify unconstitutionally burdened his privilege against self-incrimination. As a threshold matter, respondent's claims find no historical support. Griffin, moreover, is a poor analogue for those claims. Griffin prohibited the prosecution from urging the jury to do something the jury is not permitted to do, and upon request a court must instruct the jury not to count a defendant's silence against him. It is reasonable to expect a jury to comply with such an instruction because inferring guilt from silence is not always "natural or irresistible," id., at 615; but it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he has heard the testimony of those who preceded him. In contrast to the comments in Griffin, which suggested that a defendant's silence is "evidence of guilt," ibid., the prosecutor's comments in this case concerned respondent's credibility as a witness. They were therefore in accord with the Court's longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any62Syllabusother witness-a rule that serves the trial's truth-seeking function, Perry v. Leeke, 488 U. S. 272, 282. That the comments here were generic rather than based upon a specific indication of tailoring does not render them infirm. Nor does the fact that they came at summation rather than at a point earlier in the trial. In Reagan v. United States, 157 U. S. 301, 304, the Court upheld the trial court's recitation of an interested-witness instruction that directed the jury to consider the defendant's deep personal interest in the case when evaluating his credibility. The instruction in Reagan, like the prosecutor's comments in this case, did not rely on any specific evidence of actual fabrication for its application, nor did it come at a time when the defendant could respond. Nevertheless, the Court considered the instruction to be perfectly proper. Pp. 65-73.2. The prosecutor's comments also did not violate respondent's right to due process. To the extent his due process claim is based upon an alleged burdening of his Fifth and Sixth Amendment rights, it has been disposed of by the determination that those Amendments were not directly infringed. Respondent also argues, however, that it was improper to comment on his presence at trial because New York law requires him to be present. Respondent points to the Court's decision in Doyle v. Ohio, 426 U. S. 610, for support. The Court held in Doyle that the prosecution may not impeach a defendant with his post-Miranda warnings silence because those warnings carry an implicit "assurance that silence will carry no penalty." Id., at 618. No promise of impunity is implicit in a statute requiring a defendant to be present at trial, and there is no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. Pp.74-75.117 F.3d 696, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BREYER, J., joined, post, p. 76. GINSBURG, J., filed a dissenting opinion, in which SOUTER, J., joined, post, p. 76.Andrew A. Zwerling argued the cause for petitioner.With him on the briefs were Richard A. Brown, John M. Castellano, and Ellen C. Abbot.Jonathan E. Nuechterlein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney63Full Text of Opinion

1984_83-832

JUSTICE REHNQUIST delivered the opinion of the Court.Commerce Savings and Loan Association of Tacoma, Wash., merged into Citizens Federal Savings and Loan Association of Seattle in July 1976. Petitioners Harold and Marie Paulsen sought to treat their exchange of stock in Commerce for an interest in Citizens as a tax-free reorganization under 26 U.S.C. §§ 354(a)(1) and 368(a)(1)(A). The Court of Appeals for the Ninth Circuit, disagreeing with the Court of Page 469 U. S. 133 Claims and other Courts of Appeals, * reversed a decision of the Tax Court in favor of petitioners. 716 F.2d 563 (1983). We granted certiorari, 465 U.S. 1021 (1984), to resolve these conflicting interpretations of an important provision of the Internal Revenue Code.At the time of the merger, petitioner Harold T. Paulsen was president and a director of Commerce. He and his wife, petitioner Marie B. Paulsen, held as community property 17,459 shares of "guaranty stock" in Commerce. In exchange for this stock petitioners received passbook savings accounts and time certificates of deposit in Citizens. Relying on 26 U.S.C. §§ 354(a)(1) and 368(a)(1)(A), they did not report the gain they realized on their 1976 federal income tax return because they considered the merger to be a tax-free reorganization.Before it ceased to exist, Commerce was a state-chartered savings and loan association incorporated and operated under Washington State law. It was authorized to issue "guaranty stock," to offer various classes of savings accounts, and to make loans. Each stockholder, savings account holder, and borrower was a member of the association. Each share of stock and every $100, or fraction thereof, on deposit in a savings account carried with it one vote. Each borrower also had one vote.The "guaranty stock" had all of the characteristics normally associated with common stock issued by a corporation. Under the bylaws, a certain amount of guaranty stock was required to be maintained as the fixed and nonwithdrawable capital of Commerce. In accordance with Wash.Rev.Code Ann. § 33.48.080 (Supp.1981), holders of guaranty stock, but no other members, had a proportionate proprietary interest in its assets and net earnings, subordinate to the claims of Page 469 U. S. 134 creditors. Dividends could not be declared or paid on the guaranty stock unless certain reserves had been accumulated and dividends had been declared and paid on withdrawable savings accounts.Citizens is a federally chartered mutual savings and loan association under the jurisdiction of the Federal Home Loan Bank Board. 12 U.S.C. § 1461 et seq. It offers savings accounts and makes loans, but has no capital stock. Its members are its depositors and borrowers. Each savings account holder has one vote for each $100, or fraction thereof, of the withdrawal value of his savings account up to a maximum of 400 votes. Each borrower has one vote.Citizens is owned by its depositors. Twice each year its net earnings and any surplus are to be distributed to its savings account holders pro rata to the amounts on deposit. Its net assets would similarly be distributed if liquidation or dissolution should occur. It is obligated to pay written withdrawal requests within 30 days, and may redeem any of its accounts at any time by paying the holder the withdrawal value.The merger was effected pursuant to a "Plan of Merger," under which Commerce's stockholders exchanged all their stock for passbook savings accounts and certificates of deposit in Citizens. The plan was designed to conform to the requirements of Wash.Rev.Code § 33.40.010 (1983), which provides for mergers between business entities, and to qualify as a tax-free reorganization under the terms of §§ 354(a)(1) and 368(a)(1)(A). Under the plan, Commerce stockholders received for each share a $12 deposit in a Citizens passbook savings account, subject only to the restriction that such deposits could not be withdrawn for one year. They also had the alterative of receiving time certificates of deposit in Citizens with maturities ranging from 1 to 10 years at the same $12-per-share exchange rate. The plan further provided that former Commerce stockholders could borrow against their deposits resulting from the exchange at 1.5% Page 469 U. S. 135 above the passbook rate as opposed to a 2% differential for other depositors. Following the exchange, the merged entity continued to operate under the Citizens name.Petitioners had a cost basis in their Commerce stock of $56,802; in the exchange they received passbook accounts and certificates of deposit worth $209,508. In 1976, 26 U.S.C. § 1002 (1970 ed.) required that "on the sale or exchange of property the entire amount of the gain or loss . . . shall be recognized." Accordingly, petitioners were required to declare as income on their 1976 return the $152,706 profit unless one of the exceptions incorporated by reference in § 1002 applied.Included among the exceptions to § 1002 were the corporate reorganization provisions set out in §§ 354 to 368. As already noted, petitioners have attempted to rely on § 354(a)(1), which provides:"No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization."Section 368(a)(1)(A) defines a "reorganization" to include "a statutory merger or consolidation," and §§ 7701(a)(3), 7701(a)(7), and 7701(a)(8) further define the terms "corporation" to include "associations," "stock" to include "shares in an association," and "shareholder" to include a "member in an association." There is no dispute that at the time of the merger Commerce and Citizens qualified as associations, petitioners qualified as shareholders, Commerce's guaranty stock and Citizens' passbook accounts and certificates of deposit qualified as stock, and the merger qualified as a statutory merger within these provisions of the Code. Accordingly, under the literal terms of the Code the transaction would qualify as a tax-free "reorganization" exchange rather Page 469 U. S. 136 than a sale or exchange on which gain must be recognized and taxes paid.Satisfying the literal terms of the reorganization provisions, however, is not sufficient to qualify for nonrecognition of gain or loss. The purpose of these provisions is""to free from the imposition of an income tax purely paper profits or losses' wherein there is no realization of gain or loss in the business sense but merely the recasting of the same interests in a different form."" Southwest Natural Gas Co. v. Commissioner, 189 F.2d 332, 334 (CA5), cert. denied, 342 U.S. 860 (1951) (quoting Commissioner v. Gilmore's Estate, 130 F.2d 791, 794 (CA3 1942)). See Treas.Reg. § 1.368-1(b), 26 CFR § 1.368-1(b) (1984). In order to exclude sales structured to satisfy the literal terms of the reorganization provisions but not their purpose, this Court has construed the statute to also require that the taxpayer's ownership interest in the prior organization must continue in a meaningful fashion in the reorganized enterprise. Pinellas Ice & Cold Storage Co. v. Commissioner, 287 U. S. 462, 287 U. S. 468-470 (1933). In that case we held that"the seller must acquire an interest in the affairs of the purchasing company more definite than that incident to ownership of its short-term purchase-money notes."Id. at 287 U. S. 470. We soon added the requirement that "this interest must be definite and material; it must represent a substantial part of the value of the thing transferred." Helvering v. Minnesota Tea Co., 296 U. S. 378, 296 U. S. 385 (1935). Compare LeTulle v. Scofield, 308 U. S. 415, 308 U. S. 420-421 (1940) (no retained property interest where transferor received transferee's bonds), with John A. Nelson Co. v. Helvering, 296 U. S. 374, 296 U. S. 377 (1935) (continuity of interest satisfied where nonvoting preferred stock received). Known as the "continuity-of-interest" doctrine, this requirement has been codified in Treas. Regs. §§ 1.368-1(b), 1.368-2(a).The present case turns on whether petitioners' exchange of their guaranty stock in Commerce for their passbook savings Page 469 U. S. 137 accounts and certificates of deposit in Citizens satisfies this continuity-of-interest requirement. More generally, we must decide whether a merger of a stock savings and loan association into a mutual savings and loan association qualifies as a tax-free reorganization. Following his ruling in Rev.Rul. 69-6, 1969-1 Cum.Bull. 104, which itself apparently was at odds with his earlier policy expressed in Rev.Rul. 54-624, 1954-2 Cum.Bull. 16, the Commissioner rejected petitioners' treatment of the Commerce-Citizens merger as a tax-free reorganization under §§ 354(a)(1) and 368(a)(1)(A) and issued a statutory notice of deficiency finding petitioners liable for tax on their entire $152,706 gain.Petitioners sought redetermination of the deficiency in the Tax Court, which found that the Commissioner's position had been uniformly rejected by the courts. Following Capital Savings and Loan Assn. v. United States, 221 Ct.Cl. 557, 607 F.2d 970 (1979); West Side Federal Savings and Loan Assn. v. United States, 494 F.2d 404 (CA6 1974); Everett v. United States, 448 F.2d 357 (CA10 1971), the Tax Court reasoned that the savings accounts and certificates of deposit were the only forms of equity in Citizens, and it held that the requisite continuity of interest existed. 78 T.C. 291 (1982).The Commissioner appealed to the Court of Appeals for the Ninth Circuit, which declined to follow the cases cited by the Tax Court and reversed. 716 F.2d 563 (1983). It reasoned that "despite certain formal equity characteristics" the passbook savings accounts and time certificates of deposit "are in reality indistinguishable from ordinary savings accounts and are essentially the equivalent of cash." Id. at 569. For the reasons that follow we affirm the decision of the Court of Appeals.Citizens is organized pursuant to Charter K (Rev.), 12 CFR § 544. 1(b) (as of July 1, 1976), which provides for raising capital "by accepting payments on savings accounts representing share interests in the association." These shares are Page 469 U. S. 138 the association's only means of raising capital. Here they are divided into passbook accounts and certificates of deposit. In reality, these shares are hybrid instruments having both equity and debt characteristics. They combine in one instrument the separate characteristics of the guaranty stock and the savings accounts of stock associations like Commerce.The Citizens shares have several equity characteristics. The most important is the fact that they are the only ownership instrument of the association. Each share carries in addition to its deposit value a part ownership interest in the bricks and mortar, the goodwill, and all the other assets of Citizens. Another equity characteristic is the right to vote on matters for which the association's management must obtain shareholder approval. The shareholders also receive dividends rather than interest on their accounts; the dividends are paid out of net earnings, and the shareholders have no legal right to have a dividend declared or to have a fixed return on their investment. The shareholders further have a right to a pro rata distribution of any remaining assets after a solvent dissolution.These equity characteristics, however, are not as substantial as they appear on the surface. Unlike a stock association where the ownership of the assets is concentrated in the stockholders, the ownership interests here are spread over all of the depositors. The equity interest of each shareholder in relation to the total value of the share, therefore, is that much smaller than in a stock association. The right to vote is also not very significant. A shareholder is limited to 400 votes; thus any funds deposited in excess of $40,000 do not confer any additional votes. The vote is also diluted each time a loan is made, as each borrower is entitled to one vote. In addition the Commissioner asserts, and petitioners do not contest, that in practice, when depositors open their accounts, they usually sign proxies giving management their votes.The fact that dividends rather than interest are paid is by no means controlling. Petitioners have not disputed the Page 469 U. S. 139 Commissioner's assertion that in practice Citizens pays a fixed, preannounced rate on all accounts. As the Court of Appeals observed, Citizens would not be able to compete with stock savings and loan associations and commercial banks if it did not follow this practice. Potential depositors are motivated only by the rate of return on their accounts and the security of their deposits. In this latter respect, the Citizens accounts are insured by the Federal Savings and Loan Insurance Corporation (FSLIC), up to $40,000 in 1976 and now up to $100,000. 12 U.S.C. § 1728(a). The Code treats these dividends just like interest on bank accounts rather than like dividends on stock in a corporation. The dividends are deductible to Citizens, 26 U.S.C. § 591, and they do not qualify for dividend exclusion by the Citizens shareholders under § 116.The right to participate in the net proceeds of a solvent liquidation is also not a significant part of the value of the shares. Referring to the possibility of a solvent liquidation of a mutual savings association, this Court observed:"It stretches the imagination very far to attribute any real value to such a remote contingency, and when coupled with the fact that it represents nothing which the depositor can readily transfer, any theoretical value reduces almost to the vanishing point."Society for Savings v. Bowers, 349 U. S. 143, 349 U. S. 150 (1955).In contrast, there are substantial debt characteristics to the Citizens shares that predominate. Petitioners' passbook accounts and certificates of deposit are not subordinated to the claims of creditors, and their deposits are not considered permanent contributions to capital. Shareholders have a right on 30 days' notice to withdraw their deposits, which right Citizens is obligated to respect. While petitioners were unable to withdraw their funds for one year following the merger, this restriction can be viewed as akin to a delayed payment rather than a material alteration in the nature of the instruments received as payment. In this case petitioners were immediately able to borrow against their Page 469 U. S. 140 deposits at a more favorable rate than Citizens' depositors generally. As noted above, petitioners were also in effect guaranteed a fixed, preannounced rate of return on their deposits competitive with stock savings and loan associations and commercial banks.In our view, the debt characteristics of Citizens' shares greatly outweigh the equity characteristics. The face value of petitioners' passbook accounts and certificates of deposit was $210,000. Petitioners have stipulated that they had a right to withdraw the face amount of the deposits in cash, on demand after one year or at stated intervals thereafter. Their investment was virtually risk free and the dividends received were equivalent to prevailing interest rates for savings accounts in other types of savings institutions. The debt value of the shares was the same as the face value, $210,000; because no one would pay more than this for the shares, the incremental value attributable to the equity features was, practically, zero. Accordingly, we hold that petitioners' passbook accounts and certificates of deposit were cash equivalents.Petitioners have failed to satisfy the continuity-of-interest requirement to qualify for a tax-free reorganization. In exchange for their guaranty stock in Commerce, they received essentially cash with an insubstantial equity interest. Under Minnesota Tea Co., their equity interest in Citizens would have to be "a substantial part of the value of the thing transferred." 296 U.S. at 296 U. S. 385. Assuming an arm's-length transaction in which what petitioners gave up and what they received were of equivalent worth, their Commerce stock was worth $210,000 in withdrawable deposits and an unquantifiably small incremental equity interest. This retained equity interest in the reorganized enterprise, therefore, is not a "substantial" part of the value of the Commerce stock which was given up. We agree with the Commissioner that the equity interests attached to the Citizens shares are too insubstantial to satisfy Minnesota Tea Co. The Citizens shares are not significantly different from the notes that this Page 469 U. S. 141 Court found to be the mere "equivalent of cash" in Pinellas & Cold Storage Ice Co., 287 U.S. at 287 U. S. 468-469. The ownership interest of the Citizens shareholders is closer to that of the secured bondholders in LeTulle v. Scofield, 308 U.S. at 308 U. S. 420-421, than to that of the preferred stockholders in John A. Nelson Co. v. Helvering, 296 U.S. at 296 U. S. 377. The latter case involved a classic ownership instrument -- preferred stock carrying voting rights only in the event of a dividend default -- which we held to represent "a definite and substantial interest in the affairs of the purchasing corporation." Ibid.Petitioners argue that the decision below erroneously turned on the relative change in the nature and extent of the equity interest, contrary to the holding in Minnesota Tea Co. that "the relationship of the taxpayer to the assets conveyed [could] substantially chang[e]," and only a "material part of the value of the transferred assets" need be retained as an equity interest. 296 U.S. at 296 U. S. 386. In that case, taxpayers received voting trust certificates representing $540,000 of common stock and $425,000 cash; 56% of the value of the assets given up was retained as an equity interest in the transferee. In John A. Nelson Co., supra, the taxpayer received consideration consisting of 38% preferred stock and 62% cash. Here, in contrast, the retained equity interest had almost no value. It did not amount to a "material part" of the value of the Commerce stock formerly held by petitioners. See Southwest Natural Gas Co. v. Commissioner, 189 F.2d at 335 (insufficient continuity of interest where stock received represented less than l% of the consideration).Petitioners' real complaint seems to be our willingness to consider the equity and debt aspects of their shares separately. Clearly, if these interests were represented by separate pieces of paper -- savings accounts on the one hand and equity instruments of some kind on the other -- the value of the latter would be so small that we would not find a continuity of proprietary interest. In order not "to exalt artifice above reality and to deprive the statutory provision Page 469 U. S. 142 in question of all serious purpose," Gregory v. Helvering, 293 U. S. 465, 293 U. S. 469-470 (1935), it is necessary in the present case to consider the debt and equity aspects of a single instrument separately. See Rev.Rul. 69-265, 1969-1 Cum.Bull. 109, 109-110, which treats the conversion rights incorporated in convertible preferred stock as "property other than voting stock" for purposes of § 368(a)(1)(C).Petitioners also complain that the result reached by the court below is inconsistent with the Commissioner's position that a merger of one mutual savings and loan institution into another mutual association or into a stock association would still qualify as a tax-free reorganization. See Rev.Rul. 69-3, 1969-1 Cum.Bull. 103. If the continuity-of-interest test turns on the nature of the thing received, and not on the relative change in proprietary interest, argue petitioners, the interest received in the merger of two mutual associations is no different from the interest received in the instant case.As already indicated, shares in a mutual association have a predominant cash-equivalent component and an insubstantial equity component. When two mutual associations merge, the shares received are essentially identical to the shares given up. As long as the cash value of the shares on each side of the exchange is the same, the equity interest represented by the shares received -- though small -- is equivalent to the equity interest represented by the shares given up. Therefore, to the extent that a mutual association share reflects an equity interest, the continuity-of-interest requirement, as defined in Minnesota Tea Co., is satisfied in an exchange of this kind. The fact that identical cash deposits are also exchanged does not affect the equity aspect of the exchange. In the case of a merger of a mutual association into a stock association, the continuity-of-interest requirement is even more clearly satisfied because the equity position of the exchanging shareholders is not only equivalent before and after the exchange, but it is enhanced. Page 469 U. S. 143Finally, petitioners argue that the characterization of their mutual association shares as debt conflicts with this Court's decision in Tcherepnin v. Knight, 389 U. S. 332 (1967), holding that a withdrawable mutual association share indistinguishable from Citizens' shares was a "security" within the meaning of § 3(a)(10) of the Securities Exchange Act of 1934. Cf. Marine Bank v. Weaver, 455 U. S. 551, 455 U. S. 557 (1982) (distinguishing Tcherepnin because the withdrawable capital shares there did not pay a fixed rate of return and "were much more like ordinary shares of stock and the ordinary concept of a security' . . . than a certificate of deposit" [in a bank]); Wisconsin Bankers Assn. v. Robertson, 111 U.S.App.D.C. 85, 294 F.2d 714, 717 (Burger, J., concurring), cert. denied, 368 U.S. 938 (1961). The purpose of the Securities Acts is different from the purpose of the Tax Code. The focus in Tcherepnin was on the investment character of the shares, specifically whether they satisfied the test in SEC v. W. J. Howey Co., 328 U. S. 293, 328 U. S. 301 (1946), for an investment contract, namely the "investment of money in a common enterprise with profits to come solely from the efforts of others." Unlike the instant case, there is no requirement that the investors have a substantial proprietary interest in the enterprise. Moreover, in Howey as in this case, we disregarded the formal terms of the instruments in question and looked to their economic substance. Any remaining tension between the instant decision and Tcherepnin and Weaver can be explained by the fact that this Court has in cases such as Tcherepnin liberally construed the definition of "security" in the Securities Acts, while such liberality is not warranted in construing the scope of the reorganization provisions.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtPaulsen v. Commissioner, 469 U.S. 131 (1985)Paulsen v. CommissionerNo. 83-832Argued October 29, 1984Decided January 8, 1985469 U.S. 131SyllabusPursuant to a merger plan whereby Commerce Savings and Loan Association, a state-chartered stock savings and loan association, was merged in 1976 into Citizens Federal Savings and Loan Association, a federally chartered mutual savings and loan association, petitioners, husband and wife, exchanged their "guaranty stock" in Commerce for passbook savings accounts and time certificates of deposit in Citizens representing share interests in Citizens. Relying on §§ 354(a)(1) and 368(a)(1)(A) of the Internal Revenue Code, which provide an exception to recognizing a gain on the sale or exchange of property for corporate reorganizations, petitioners did not report on their 1976 income tax return the gain they realized on the exchange, because they considered the merger to be a tax-free reorganization. The Commissioner of Internal Revenue, however, issued a notice of deficiency and found petitioners liable for tax on the entire gain. Petitioners then sought redetermination of the deficiency in the Tax Court, which rendered a decision in petitioners' favor. The court reasoned that the savings accounts and certificates of deposit were the only forms of equity in Citizens, and held that the requisite continuity of interest existed under the rule that, even though the literal terms of the reorganization provisions of the statute are satisfied, the statute also requires that the taxpayer's ownership interest in the prior organization must continue in a meaningful fashion in the reorganized enterprise, and the retained interest must represent a substantial part of the value of the thing transferred, Helvering v. Minnesota Tea Co., 296 U. S. 378. The Court of Appeals reversed, holding that, despite certain equity characteristics, the Citizens savings accounts and certificates of deposit were indistinguishable from ordinary savings accounts and were essentially the equivalent of cash.Held: Petitioners were not entitled to treat the Commerce-Citizens merger as a tax-free reorganization under §§ 354(a)(1) and 368(a)(1)(A), and thus are taxable on the gain they realized on the exchange in question. Pp. 469 U. S. 137-143.(a) Petitioners' Citizens passbook accounts and certificates of deposit were cash equivalents. The debt characteristics of Citizens' shares (the passbook accounts and certificates of deposit are not subordinated to Page 469 U. S. 132 creditors' claims, the deposits are not considered permanent contributions to capital, the shareholders have a right to withdraw the face amount of their deposits in cash, and in practice Citizens pays a fixed, preannounced rate on all accounts) greatly outweigh their equity characteristics (the shares are the only ownership instruments in the association, the shareholders have the right to vote, and they receive dividends rather than interest on their accounts and pro rata distribution of assets in the event of a solvent dissolution). Pp. 469 U. S. 137-140.(b) Petitioners have failed to satisfy the continuity of interest required to qualify the merger as a tax-free reorganization. The debt value of the Citizens shares was the same as the face value; because no one would pay more than this for the shares, the incremental value attributable to the equity features was, practically, zero. Thus, this retained equity interest in the reorganized enterprise was not a "substantial" part of the value of the Commerce stock that was given up. Pp. 469 U. S. 140-142.(c) To characterize petitioners' Citizen shares as debt does not conflict with Tcherepnin v. Knight, 389 U. S. 332. P. 469 U. S. 143.716 F.2d 563, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, 469 U. S. 144. POWELL, J., took no part in the decision of the case.

1999_98-1993

JUSTICE GINSBURG delivered the opinion of the Court. The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person. We hold that it is not.IOn October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. App. to Pet. for Cert. A-40 to A-41. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip-the record does not say how longtwo officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males "just hanging out [there]." Id., at A-42. One of the three, respondent J. L., was wearing a plaid shirt. Id., at A-41. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J. L. made no threatening or otherwise unusual movements. Id., at A-42 to A-44. One of the officers approached J. L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J. L.'s pocket. The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing.Pennsylvania, Jose A. Fuentes Agostini of Puerto Rico, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming.Briefs of amici curiae urging affirmance were filed for the Congress of Racial Equality, Inc., by Stefan B. Tahmassebi; for the National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz and Barbara E. Bergman; for the National Rifle Association of America et al. by Robert Dowlut and David B. Kopel; and for the Rutherford Institute by John W Whitehead and Steven H. Aden.269J. L., who was at the time of the frisk "10 days shy of his 16th birth[day]," Tr. of Oral Arg. 6, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment. 727 So. 2d 204 (1998).Anonymous tips, the Florida Supreme Court stated, are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability, for example, the correct forecast of a subject's "'not easily predicted'" movements. Id., at 207 (quoting Alabama v. White, 496 U. S. 325, 332 (1990)). The tip leading to the frisk of J. L., the court observed, provided no such predictions, nor did it contain any other qualifying indicia of reliability. 727 So. 2d, at 207-208. Two justices dissented. The safety of the police and the public, they maintained, justifies a "firearm exception" to the general rule barring investigatory stops and frisks on the basis of bare-boned anonymous tips. Id., at 214-215.Seeking review in this Court, the State of Florida noted that the decision of the State's Supreme Court conflicts with decisions of other courts declaring similar searches compatible with the Fourth Amendment. See, e. g., United States v. DeBerry, 76 F.3d 884, 886-887 (CA7 1996); United States v. Clipper, 973 F.2d 944, 951 (CADC 1992). We granted certiorari, 528 U. S. 963 (1999), and now affirm the judgment of the Florida Supreme Court.IIOur "stop and frisk" decisions begin with Terry v. Ohio, 392 U. S. 1 (1968). This Court held in Terry:"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his270experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Id., at 30.In the instant case, the officers' suspicion that J. L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U. S. 143, 146-147 (1972), "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," Alabama v. White, 496 U. S., at 329. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Id., at 327. The question we here confront is whether the tip pointing to J. L. had those indicia of reliability.In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Ibid. Standing alone, the tip would not have justified a Terry stop. 496 U. S., at 329. Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.271Id., at 332. Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline. Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. We accordingly classified White as a "close case." Ibid.The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J. L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J. L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.Florida contends that the tip was reliable because its description of the suspect's visible attributes proved accurate:There really was a young black male wearing a plaid shirt at the bus stop. Brief for Petitioner 20-21. The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should be permitted "when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip .... " Brief272for United States 16. These contentions misapprehend the reliability needed for a tip to justify a Terry stop.An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U. S., at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms.273Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. See, e. g., United States v. Sakyi, 160 F. 3d 164, 169 (CA4 1998); United States v. Dean, 59 F.3d 1479, 1490, n. 20 (CA5 1995); United States v. Odom, 13 F.3d 949, 959 (CA6 1994); United States v. Martinez, 958 F.2d 217, 219 (CA8 1992). If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied. Cf. Richards v. Wisconsin, 520 U. S. 385, 393-394 (1997) (rejecting a per se exception to the "knock and announce" rule for narcotics cases partly because "the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others," thus allowing the exception to swallow the rule). *The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the* At oral argument, petitioner also advanced the position that J. L.'s youth made the stop and frisk valid, because it is a crime in Florida for persons under the age of 21 to carry concealed firearms. See Fla. Stat. § 790.01 (1997) (carrying a concealed weapon without a license is a misdemeanor), § 790.06(2)(b) (only persons aged 21 or older may be licensed to carry concealed weapons). This contention misses the mark. Even assuming that the arresting officers could be sure that J. L. was under 21, they would have had reasonable suspicion that J. L. was engaged in criminal activity only if they could be confident that he was carrying a gun in the first place. The mere fact that a tip, if true, would describe illegal activity does not mean that the police may make a Terry stop without meeting the reliability requirement, and the fact that J. L. was under 21 in no way made the gun tip more reliable than if he had been an adult.274indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U. S. 1 (1984) (per curiam), and schools, see New Jersey v. T. L. 0., 469 U. S. 325 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer's prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in to day's decision only of cases in which the officer's authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.The judgment of the Florida Supreme Court is affirmed.It is so ordered

OCTOBER TERM, 1999SyllabusFLORIDA v. J. L.CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 98-1993. Argued February 29, 2000-Decided March 28, 2000After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any unusual movements. One of the officers frisked J. L. and seized a gun from his pocket. J. L., who was then almost 16, was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. The trial court granted his motion to suppress the gun as the fruit of an unlawful search. The intermediate appellate court reversed, but the Supreme Court of Florida quashed that decision and held the search invalid under the Fourth Amendment.Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U. S. 1, 30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. See Alabama v. White, 496 U. S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.'s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if267the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great--e. g., a report of a person carrying a bomb-as to justify a search even without a showing of reliability. Pp.269-274.727 So. 2d 204, affirmed.GINSBURG, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which REHNQUIST, C. J., joined, post, p.274.Michael J. Neimand, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the briefs was Robert A. Butterworth, Attorney General.Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben.Harvey J. Sepler argued the cause for respondent. With him on the brief were Bennett H. Brummer and Andrew Stanton. **Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., et al. by Wayne W Schmidt, James P. Manak, Richard Weintraub, and Bernard J. Farber; for the Justice Coalition by Scott D. Makar; for the National Association of Police Organizations by Stephen R. McSpadden; and for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, William Browers and Michael M. Glick, Assistant Attorneys General, and Dan Schweitzer, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran of Maryland, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Patricia A. Madrid of New Mexico, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of268Full Text of Opinion

1983_83-219

JUSTICE BRENNAN delivered the opinion of the Court.The question presented in this § 1983 action is whether a federal court may accord preclusive effect to an unappealed arbitration award in a case brought under that statute. [Footnote 1] In an unpublished opinion, the Court of Appeals for the Sixth Circuit held that such awards have preclusive effect. We granted certiorari, 464 U.S. 813 (1983), and now reverse.IOn November 26, 1976, petitioner Gary McDonald, then a West Branch, Mich., police officer, was discharged. McDonald Page 466 U. S. 286 filed a grievance pursuant to the collective bargaining agreement then in force between West Branch and the United Steelworkers of America (the Union), contending that there was "no proper cause" for his discharge and that, as a result, the discharge violated the collective bargaining agreement. [Footnote 2] After the preliminary steps in the contractual grievance procedure had been exhausted, the grievance was taken to arbitration. The arbitrator ruled against McDonald, however, finding that there was just cause for his discharge.McDonald did not appeal the arbitrator's decision. Subsequently, however, he filed this § 1983 action against the city of West Branch and certain of its officials, including its Chief of Police, Paul Longstreet. [Footnote 3] In his complaint, McDonald alleged that he was discharged for exercising his First Amendment rights of freedom of speech, freedom of association, and freedom to petition the government for redress of grievances. [Footnote 4] The case was tried to a jury which returned a verdict against Longstreet, but in favor of the remaining defendants.On appeal, the Court of Appeals for the Sixth Circuit reversed the judgment against Longstreet. 709 F.2d 1505 (1983). The court reasoned that the parties had agreed to settle their disputes through the arbitration process and Page 466 U. S. 287 that the arbitrator had considered the reasons for McDonald's discharge. Finding that the arbitration process had not been abused, the Court of Appeals concluded that McDonald's First Amendment claims were barred by res judicata and collateral estoppel. [Footnote 5]IIAAt the outset, we must consider whether federal courts are obligated by statute to accord res judicata or collateral estoppel effect to the arbitrator's decision. Respondents contend that the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, requires that we give preclusive effect to the arbitration award.Our cases establish that § 1738 obliges federal courts to give the same preclusive effect to a state court judgment as would the courts of the State rendering the judgment. See, e.g., Migra v. Warren City School District Board of Education, 465 U. S. 75, 465 U. S. 81 (1984); Kremer v. Chemical Construction Corp., 456 U. S. 461, 456 U. S. 466 (1982). As we explained in Kremer, however, "[a]rbitration decisions . . . are not subject to the mandate of § 1738." Id. at 456 U. S. 477. This conclusion follows from the plain language of § 1738, which provides in pertinent part that the"judicial proceedings [of any court Page 466 U. S. 288 of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State . . . from which they are taken."(Emphasis added.) [Footnote 6] Arbitration is not a "judicial proceeding." and therefore § 1738 does not apply to arbitration awards. [Footnote 7]BBecause federal courts are not required by statute to give res judicata or collateral estoppel effect to an unappealed arbitration award, any rule of preclusion would necessarily be judicially fashioned. We therefore consider the question whether it was appropriate for the Court of Appeals to fashion such a rule.On two previous occasions, this Court has considered the contention that an award in an arbitration proceeding brought pursuant to a collective bargaining agreement should preclude a subsequent suit in federal court. In both instances, we rejected the claim.Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), was an action under Title VII of the Civil Rights Act of 1964 Page 466 U. S. 289 brought by an employee who had unsuccessfully claimed in an arbitration proceeding that his discharge was racially motivated. Although Alexander protested the same discharge in the Title VII action, we held that his Title VII claim was not foreclosed by the arbitral decision against him. [Footnote 8] In addition, we declined to adopt a rule that would have required federal courts to defer to an arbitrator's decision on a discrimination claim when"(i) the claim was before the arbitrator; (ii) the collective bargaining agreement prohibited the form of discrimination charged in the suit under Title VII; and (iii) the arbitrator has authority to rule on the claim and to fashion a remedy."Id. at 415 U. S. 55-56.Similarly, in Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981), Barrentine and a fellow employee had unsuccessfully submitted wage claims to arbitration. Nevertheless, we rejected the contention that the arbitration award precluded a subsequent suit based on the same underlying facts alleging a violation of the minimum wage provisions of the Fair Labor Standards Act. Id. at 450 U. S. 745-746.Our rejection of a rule of preclusion in Barrentine and our rejection of a rule of deferral in Gardner-Denver were based in large part on our conclusion that Congress intended the statutes at issue in those cases to be judicially enforceable, and that arbitration could not provide an adequate substitute for judicial proceedings in adjudicating claims under those statutes. 450 U.S. at 450 U. S. 740-746; 415 U.S. at 415 U. S. 56-60. These considerations similarly require that we find the doctrines of res judicata and collateral estoppel inapplicable in this § 1983 action. Page 466 U. S. 290Because § 1983 creates a cause of action, there is, of course, no question that Congress intended it to be judicially enforceable. Indeed, as we explained in Mitchum v. Foster, 407 U. S. 225, 407 U. S. 242 (1972),"[t]he very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights -- to protect the people from unconstitutional action under color of state law."See also Patsy v. Florida Board of Regents, 457 U. S. 496, 457 U. S. 503 (1982). And although arbitration is well suited to resolving contractual disputes, our decisions in Barrentine and Gardner-Denver compel the conclusion that it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard. As a result, according preclusive effect to an arbitration award in a subsequent § 1983 action would undermine that statute's efficacy in protecting federal rights. We need only briefly reiterate the considerations that support this conclusion.First, an arbitrator's expertise "pertains primarily to the law of the shop, not the law of the land." Gardner-Denver, supra, at 415 U. S. 57. An arbitrator may not, therefore, have the expertise required to resolve the complex legal questions that arise in § 1983 actions. [Footnote 9]Second, because an arbitrator's authority derives solely from the contract, Barrentine, supra, at 450 U. S. 744, an arbitrator may not have the authority to enforce § 1983. As we explained in Gardner-Denver:"The arbitrator . . . has no general authority to invoke public laws that conflict with the bargain between the parties. . . . If an arbitral decision is based 'solely upon the arbitrator's view of the requirements Page 466 U. S. 291 of enacted legislation,' rather than on an interpretation of the collective bargaining agreement, the arbitrator has 'exceeded the scope of the submission,' and the award will not be enforced."415 U.S. at 415 U. S. 53, quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 363 U. S. 597 (1960). Indeed, when the rights guaranteed by § 1983 conflict with provisions of the collective bargaining agreement, the arbitrator must enforce the agreement. Gardner-Denver, 415 U.S. at 415 U. S. 43.Third, when, as is usually the case, [Footnote 10] the union has exclusive control over the "manner and extent to which an individual grievance is presented," Gardner-Denver, supra, at 415 U. S. 58, n.19, there is an additional reason why arbitration is an inadequate substitute for judicial proceedings. The union's interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee's grievance less vigorously, or make different strategic choices, than would the employee. See Gardner-Denver, supra, at 415 U. S. 58, n.19; Barrentine, supra, at 450 U. S. 742. Thus, were an arbitration award accorded preclusive effect, an employee's opportunity to be compensated for a constitutional deprivation might be lost merely because it was not in the union's interest to press his claim vigorously.Finally, arbitral factfinding is generally not equivalent to judicial factfinding. As we explained in Gardner-Denver,"[t]he record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable."415 U.S. at 415 U. S. 57-58. Page 466 U. S. 292It is apparent, therefore, that in a § 1983 action, an arbitration proceeding cannot provide an adequate substitute for a judicial trial. [Footnote 11] Consequently, according preclusive effect to arbitration awards in § 1983 actions would severely undermine the protection of federal rights that the statute is designed to provide. [Footnote 12] We therefore hold that, in a § 1983 action, a federal court should not afford res judicata or collateral estoppel effect to an award in an arbitration proceeding brought pursuant to the terms of a collective bargaining agreement. [Footnote 13] Page 466 U. S. 293The 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 CourtMcDonald v. City of West Branch, 466 U.S. 284 (1984)McDonald v. City of West Branch, MichiganNo. 83-219Argued February 27, 1984Decided April 18, 1984466 U.S. 284SyllabusWhen petitioner was discharged from respondent city's police force, he filed a grievance pursuant to the collective bargaining agreement between the city and a labor union, contending that there was "no proper cause" for his discharge. The grievance was ultimately taken to arbitration, and the arbitrator ruled against petitioner, finding that there was just cause for his discharge. Petitioner did not appeal this decision, but filed an action in Federal District Court under 42 U.S.C. § 1983 against the city and certain of its officials, including the Chief of Police, alleging that he was discharged for exercising his First Amendment rights of freedom of speech, freedom of association, and freedom to petition the government for redress of grievances. The jury returned a verdict against the Chief of Police but in favor of the other defendants. The Court of Appeals reversed the judgment against the Chief of Police, holding that petitioner's First Amendment claims were barred by res judicata and collateral estoppel.Held: In a § 1983 action, a federal court should not afford res judicata or collateral estoppel effect to an award in an arbitration proceeding brought pursuant to the terms of a collective bargaining agreement, and hence petitioner's § 1983 action was not barred by the arbitration award. 466 U. S. 287-292.(a) Title 28 U.S.C. § 1738 -- which provides that the "judicial proceedings" of any court of any State shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of such State from which they are taken -- does not require that preclusive effect be given to the arbitration award in question. Arbitration is not a "judicial proceeding" and, therefore, § 1738 does not apply to arbitration awards. Pp. 466 U. S. 287-288.(b) Although arbitration is well-suited to resolving contractual disputes, it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard. As a result, according preclusive effect to an arbitration award in a subsequent § 1983 action would undermine that statute's efficacy in protecting federal rights. This conclusion is supported by the facts that an arbitrator may not have the expertise to resolve the complex legal questions that arise in § 1983 actions or the authority to Page 466 U. S. 285 enforce § 1983; that a union's usual exclusive control over grievance procedures may result in an employee's loss of an opportunity to be compensated for a constitutional deprivation merely because it was not in the union's interest to press his grievance vigorously; and that arbitral factfinding is generally not equivalent to judicial factfinding. Pp. 466 U. S. 288-292.709 F.2d 1505, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court.

1997_96-957

review the issue on final judgment. See, e. g., Hathorn v. Lovorn, 457 U. S. 255, 261-262. The Court confines Pennsylvania v. Ritchie, 480 U. S. 39,49, n. 7, to the exceptional circumstances there presented, and rejects any construction of Ritchie that would expand the exceptions stated in Cox Broadcasting Corp. Pp. 82-84.Certiorari dismissed for want of jurisdiction. Reported below: 682 So. 2d 29.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 84.Dennis G. Pantazis argued the cause for petitioners.With him on the briefs was Brian M. Clark.John G. Roberts, Jr., argued the cause for respondent.With him on the brief were Gregory G. Garre, Wayne Morse, and John W Clark, Jr.JUSTICE GINSBURG delivered the opinion of the Court. This case, still sub judice in Alabama, was brought to this Court too soon. We granted certiorari to consider whether the Alabama Wrongful Death Act, Ala. Code § 6-5-410 (1993), governs recovery when a decedent's estate claims, under 42 U. S. C. § 1983, that the death in question resulted from a deprivation of federal rights. We do not decide that issue, however, because we conclude that we lack jurisdiction at the current stage of the proceedings. Congress has limited our review of state-court decisions to "[fJinal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U. S. C. § 1257(a). The decision we confront does not qualify as a "final judgment" within the meaning of § 1257(a). The Alabama Supreme Court decided the federal-law issue on an interlocutory certification from the trial court, then remanded the cause for further proceedings on petitioners' remaining state-law claims. The outcome of those further proceedings could moot the federal question we agreed to decide. If the federal question does not become moot, petitioners will be free78to seek our review when the state-court proceedings reach an end. We accordingly dismiss the writ for want of a final judgment.IPetitioners commenced this action against the city of Tarrant, Alabama (City), to recover damages for the death of Alberta Jefferson. Ms. Jefferson, an African-American woman, died in a fire at her Tarrant City home on December 4, 1993. Petitioners' complaint, App. 1-11, alleges that the City firefighters did not attempt to rescue Ms. Jefferson promptly after they arrived on the scene, nor did they try to revive her when they carried her from her house. The complaint further alleges that these omissions resulted from "the selective denial of fire protection to disfavored minorities," id., at 6, and proximately caused Ms. Jefferson's death. The City, however, maintains that the Tarrant Fire Department responded to the alarm call as quickly as possible and that Ms. Jefferson had already died by the time the firefighters arrived.Petitioners Melvin, Leon, and Benjamin Jefferson, as administrator and survivors of Alberta Jefferson, filed their complaint against Tarrant City in an Alabama Circuit Court on June 21, 1994. The Jeffersons asserted two claims under state law: one for wrongful death, and the other for the common-law tort of outrage. They also asserted two claims under 42 U. s. C. § 1983: one alleging that Alberta Jefferson's death resulted from the deliberate indifference of the City and its agents, in violation of the Due Process Clause of the Fourteenth Amendment, and the other alleging that Ms. Jefferson's death resulted from a practice of invidious racial discrimination, in violation of the Fourteenth Amendment's Equal Protection Clause.In June 1995, the City moved for judgment on the pleadings on the § 1983 claims and for summary judgment on all claims. In its motion for judgment on the pleadings, the79City argued that the survival remedy provided by the Alabama Wrongful Death Act governed the Jeffersons' potential recovery for the City's alleged constitutional torts.1 For this argument, the City relied on Robertson v. Wegmann, 436 U. S. 584, 588-590 (1978). In that case, we held that 42 U. S. C. § 1988(a) requires the application of state-law survival remedies in § 1983 actions unless those remedies are "'inconsistent with the Constitution and laws of the United States.'" The Alabama Supreme Court had interpreted the State's Wrongful Death Act as providing a punitive damages remedy only. See, e. g., Geohagen v. General Motors Corp., 279 So. 2d 436, 438-439 (1973). But § 1983 plaintiffs may not recover punitive damages against a municipality. See Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981). Hence, according to respondent, petitioners could obtain no damages against the City under § 1983.The Alabama trial court denied the summary judgment motion in its entirety, and it denied in part the motion for judgment on the pleadings. As to the latter motion, the court ruled that, notwithstanding the punitive-damages-only limitation in the state Wrongful Death Act, the Jeffersons could recover compensatory damages upon proof that the City violated Alberta Jefferson's constitutional rights. The trial court certified the damages question for immediate review, and the Alabama Supreme Court granted the City per-1 The Alabama Wrongful Death Act provides, in relevant part:"A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death." Ala. Code § 6-5-41O(a) (1993).80mission to appeal from the denial of its motion for judgment on the pleadings.2On the interlocutory appeal, the Alabama Supreme Court reversed. 682 So. 2d 29 (1996). Relying on its earlier opinion in Carter v. Birmingham, 444 So. 2d 373 (1983), the court held that the state Act, including its allowance of punitive damages only, governed petitioners' potential recovery on their § 1983 claims. The court remanded "for further proceedings consistent with [its] opinion." 682 So. 2d, at 31. Dissenting Justices Houston and Cook would have affirmed the trial court's ruling.We granted certiorari to resolve the following question:"Whether, when a decedent's death is alleged to have resulted from a deprivation of federal rights occurring in Alabama, the Alabama Wrongful Death Act, Ala. Code § 6-5-410 (1993), governs the recovery by the representative of the decedent's estate under 42 U. S. C. § 1983?" 520 U. S. 1154 (1997). In its brief on the merits, respondent for the first time raised a nonwaivable impediment: The City asserted that we lack jurisdiction to review the interlocutory order of the Alabama Supreme Court. We agree, and we now dismiss the writ of certiorari as improvidently granted.IIFrom the earliest days of our judiciary, Congress has vested in this Court authority to review federal-question decisions made by state courts. For just as long, Congress has limited that power to cases in which the State's judgment is final. See Judiciary Act of 1789, § 25, 1 Stat. 85. The cur-2 The courts invoked Alabama Rule of Appellate Procedure 5(a), which allows a party to petition the Alabama Supreme Court for an appeal from an interlocutory order where the trial judge certifies that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation and that the appeal would avoid protracted and expensive litigation."81rent statute regulating our jurisdiction to review state-court decisions provides:"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States." 28 U. S. C. § 1257(a).This provision establishes a firm final judgment rule. To be reviewable by this Court, a state-court judgment must be final "in two senses: it must be subject to no further review or correction in any other state tribunal; it must also be final as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein. It must be the final word of a final court." Market Street R. Co. v. Railroad Comm'n of Cal., 324 U. S. 548, 551 (1945). As we have recognized, the finality rule "is not one of those technicalities to be easily scorned. It is an important factor in the smooth working of our federal system." Radio Station WOW; Inc. v. Johnson, 326 U. S. 120, 124 (1945).The Alabama Supreme Court's decision was not a "final judgment." It was avowedly interlocutory. Far from terminating the litigation, the court answered a single certified question that affected only two of the four counts in petitioners' complaint. The court then remanded the case for further proceedings. Absent settlement or further dispositive motions, the proceedings on remand will include a trial on the merits of the state-law claims. In the relevant respect, this case is identical to O'Dell v. Espinoza, 456 U. S. 43082(1982) (per curiam), where we dismissed the writ of certiorari for want of jurisdiction. See ibid. ("Because the Colorado Supreme Court remanded this case for trial, its decision is not final 'as an effective determination of the litigation.''' (citation omitted)).Petitioners contend that this case comes within the "limited set of situations in which we have found finality as to the federal issue despite the ordering of further proceedings in the lower state courts." Ibid. We do not agree. This is not a case in which "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 480 (1975). Resolution of the state-law claims could effectively moot the federal-law question raised here. Most notably, the City maintains that its fire department responded promptly to the call reporting that Ms. Jefferson's residence was in flames, but that Ms. Jefferson was already dead when they arrived. On the City's view of the facts, its personnel could have done nothing more to save Ms. Jefferson's life. See App. 45-47. If the City prevails on this account of the facts, then any § 1983 claim will necessarily fail, however incorrect the Alabama Supreme Court's ruling, for the City will have established that its actions did not cause Ms. Jefferson's death.Nor is this an instance "where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." Cox Broadcasting Corp. v. Cohn, 420 U. S., at 481. If the Alabama Supreme Court's decision on the federal claim ultimately makes a difference to the Jeffersons-in particular, if they prevail on their state claims but recover less than they might have under federal law, or if their state claims fail for reasons that do not also dispose of their federal claims-they will be free to seek our review once the state-83court litigation comes to an end. Even if the Alabama Supreme Court adheres to its interlocutory ruling as "law of the case," that determination will in no way limit our ability to review the issue on final judgment. See, e. g., Hathorn v. Lovorn, 457 U. S. 255, 261-262 (1982); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 642 (4th ed. 1996) ("If a state court judgment is not final for purposes of Supreme Court review, the federal questions it determines will (if not mooted) be open in the Supreme Court on later review of the final judgment, whether or not under state law the initial adjudication is the law of the case on the second state review."); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 104-105 (7th ed. 1993) (citing cases).We acknowledge that one of our prior decisions might be read to support the view that parties in the Jeffersons' situation need not present their federal questions to the state courts a second time before obtaining review in this Court. See Pennsylvania v. Ritchie, 480 U. S. 39, 49, n. 7 (1987) (declining to require the petitioner "to raise a fruitless Sixth Amendment claim in the trial court, the Superior Court, and the Pennsylvania Supreme Court still another time before we regrant certiorari on the question that is now before us"). In Ritchie, we permitted immediate review of a Pennsylvania Supreme Court ruling that required the Commonwealth's Children and Youth Services (CYS) to disclose to a criminal defendant the contents of a child protective service file regarding a key witness. The Court asserted jurisdiction in that case because of the "unusual" situation presented: We doubted whether there would be any subsequent opportunity to raise the federal questions, see ibid., and we were reluctant to put the CYS in the bind of either disclosing a confidential file or being held in contempt, see id., at 49. Ritchie is an extraordinary case and we confine it to the precise circumstances the Court there confronted. We now clarify that Ritchie does not augur expansion of the excep-84tions stated in Cox Broadcasting Corp., and we reject any construction of Ritchie that would contradict this opinion.This case fits within no exceptional category. It presents the typical situation in which the state courts have resolved some but not all of petitioners' claims. Our jurisdiction therefore founders on the rule that a state-court decision is not final unless and until it has effectively determined the entire litigation. Because the Alabama Supreme Court has not yet rendered a final judgment, we lack jurisdiction to review its decision on the Jeffersons' § 1983 claims.***For the reasons stated, the writ of certiorari is dismissed for want of jurisdiction.It is so ordered

OCTOBER TERM, 1997SyllabusJEFFERSON, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JEFFERSON, DECEASED, ET AL. v.CITY OF TARRANT, ALABAMACERTIORARI TO THE SUPREME COURT OF ALABAMANo. 96-957. Argued November 4, 1997-Decided December 9,1997Petitioners commenced this action in Alabama state court to recover damages for the death of their decedent, Alberta Jefferson, an MricanAmerican woman who perished in a fire at her home in respondent city of Tarrant (City). They alleged that City firefighters failed to rescue Ms. Jefferson promptly after arriving on the scene and to revive her upon carrying her from her house. These omissions, they charged, resulted from the selective denial of fire protection to disfavored minorities and proximately caused Ms. Jefferson's death. The City maintains that the firefighters responded to the alarm call as quickly as possible and that Ms. Jefferson was already dead when they arrived. Petitioners asserted state-law wrongful-death and outrage claims. They also asserted claims under 42 U. S. C. § 1983 that Ms. Jefferson's death resulted from (1) the deliberate indifference of the City and its agents, in violation of the Fourteenth Amendment's Due Process Clause, and (2) a practice of invidious racial discrimination, in violation of that Amendment's Equal Protection Clause. In its motion for judgment on the pleadings on the § 1983 claims, the City argued that, under Robertson v. Wegmann, 436 U. S. 584, 588-590, the survival remedy provided by Alabama's Wrongful Death Act governed petitioners' potential recovery on the constitutional tort claims. The Alabama Supreme Court has interpreted the state Act as providing a punitive damages remedy only, but this Court has ruled that § 1983 plaintiffs may not recover punitive damages against a municipality, see Newport v. Fact Concerts, Inc., 453 U. S. 247. Accordingly, the City argued that it could not be held liable for damages under § 1983. The trial court denied the City's motion in part and ruled that petitioners could recover compensatory damages against the City under § 1983. It certified the damages question for immediate review. The Alabama Supreme Court reversed on interlocutory appeal, holding that the state Act, including its allowance of punitive damages only, governed petitioners' potential recovery on their § 1983 claims. The court remanded "for further proceedings consistent with [its] opinion." After this Court granted certiorari to resolve whether the state Act governed the § 1983 claims, the City asserted for76Syllabusthe first time, in its brief on the merits, that the Court lacks jurisdiction to review the Alabama Supreme Court's interlocutory order.Held: Because the Alabama Supreme Court has not yet rendered a final judgment, this Court lacks jurisdiction to review that court's decision on petitioners' § 1983 claims. pp. 80-84.(a) Congress has long vested in this Court authority to review federal-question decisions made by state courts, see Judiciary Act of 1789, §25, but has limited that power to cases in which the State's judgment is "final," see 28 U. S. C. § 1257(a). This finality rule is firm, not a technicality to be easily scorned. Radio Station WOlf, Inc. v. Johnson, 326 U. S. 120, 124. A state-court decision is not final unless and until it has effectively determined the entire litigation. Market Street R. Co. v. Railroad Comm'n of Cal., 324 U. S. 548, 551. The decision below does not qualify as a "final judgment" within § 1257(a)'s meaning. The Alabama Supreme Court decided the federal-law issue on an interlocutory certification from the trial court, then remanded the cause for further proceedings on petitioners' remaining state-law claims. Absent settlement or further dispositive motions, the proceedings on remand will include a trial on the merits of the state-law claims. In a virtually identical case, this Court has dismissed certiorari for want of jurisdiction. O'Dell v. Espinoza, 456 U. S. 430 (per curiam). Pp. 80-82.(b) This case does not come within the narrow circumstances in which the Court has found finality despite the promise of further state-court proceedings. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469. It does not involve a federal issue, finally decided by the State's highest court, that will survive and require decision regardless of the outcome of future state-court proceedings. Id., at 480. Resolution of the statelaw claims could effectively moot the federal-law question. If the City establishes, as a matter of fact, that its firefighters could have done nothing more to save Ms. Jefferson's life, any § 1983 claim will necessarily fail, however incorrect the Alabama Supreme Court's ruling. Nor is this an instance where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had whatever the ultimate outcome of the case. Id., at 481. If the decision under review ultimately makes a difference to petitioners-in particular, if they prevail on their state claims but recover less than they might have under federal law, or if their state claims fail for reasons that do not also dispose of their federal claims-they will be free to seek this Court's review once the state-court litigation comes to an end. Even if the Alabama Supreme Court adheres to its interlocutory ruling as "law of the case," that determination will in no way limit this Court's ability to77Full Text of Opinion

1971_70-5040

MR. JUSTICE BRENNAN delivered the opinion of the Court.A jury in the Circuit Court of Cook County, Illinois, convicted appellant on nonfelony charges of disorderly conduct and interference with a police officer in violation of ordinances of the city of Chicago. He was sentenced to a $250 fine on each offense; violation of each ordinance carried a maximum penalty of $500. Desiring to appeal, he petitioned the Circuit Court for a free transcript of the proceedings of his trial to support his grounds of appeal that the evidence was insufficient for conviction and that misconduct of the prosecutor denied him a fair trial. [Footnote 1] The Circuit Court Page 404 U. S. 191 found that he was indigent, but denied his application, stating "that defendant was found guilty of ordinance violations and . . . rule 607 of the Supreme Court applies to felony cases." The reference was to Illinois Supreme Court Rule 607(b), which in pertinent part provided:"In any case in which the defendant is convicted of a felony, he may petition the court in which he was convicted for a report of proceedings at his trial. [Footnote 2]"(Emphasis supplied.) Other Illinois Supreme Page 404 U. S. 192 Court rules, Rules 323(c) and 323(d), provided for alternatives to a transcript in the form of a "Settled Statement" or an "Agreed Statement of Facts." [Footnote 3] Without resorting to either alternative, appellant made a motion in the Illinois Supreme Court for an order that he be Page 404 U. S. 193 furnished a transcript of proceedings without cost. The Supreme Court denied the motion in an unreported order without filing an opinion. We noted probable jurisdiction of appellant's appeal challenging the constitutionality of the limitation of Rule 607(b) to felony cases. 401 U.S. 906 (1971).IGriffin v. Illinois, 351 U. S. 12 (1956), is the watershed of our transcript decisions. We held there that "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." Id. at 351 U. S. 19. This holding rested on the"constitutional guaranties of due process and equal protection both [of which] call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons."Id. at 351 U. S. 17. We said that "[p]lainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence . . . ," id. at 351 U. S. 17-18, and concluded that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Id. at 351 U. S. 19. Appellee city of Chicago urges that we reexamine Griffin. We decline to do so. For"it is now fundamental that, once established . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts."Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 310 (1966). [Footnote 4] Therefore,"[i]n all cases the duty of the State Page 404 U. S. 194 is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . ."Draper v. Washington, 372 U. S. 487, 372 U. S. 496 (1963). In terms of a trial record, this means that the State must afford the indigent a "record of sufficient completeness' to permit proper consideration of [his] claims." Id. at 372 U. S. 499 (quoting Coppedge v. United States, 369 U. S. 438, 369 U. S. 446 (1962)).A "record of sufficient completeness" does not translate automatically into a complete verbatim transcript. We said in Griffin that a State"may find other means [than providing stenographic transcripts for] affording adequate and effective appellate review to indigent defendants."351 U.S. at 351 U. S. 20. We considered this more fully in Draper v. Washington, supra, at 372 U. S. 495-496:"Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant, and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to Page 404 U. S. 195 this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review."We emphasize, however, that the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way. Moreover, where the grounds of appeal, as in this case, make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an "alternative" will suffice for an effective appeal on those grounds. This rationale underlies our statement in Draper, supra, at 372 U. S. 498, that:"[T]he State could have endeavored to show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners' contentions. The trial judge would have complied with . . . the constitutional mandate . . . in limiting the grant accordingly on the basis of such a showing by the State. [Footnote 5]"IIThe distinction between felony and nonfelony offenses drawn by Rule 607(b) can no more satisfy the requirements of the Fourteenth Amendment than could the like Page 404 U. S. 196 distinction in the Wisconsin law held invalid in Groppi v. Wisconsin, 400 U. S. 505 (1971), which permitted a change of venue in felony, but not in misdemeanor, trials. The size of the defendant's pocketbook bears no more relationship to his guilt or innocence in a nonfelony than in a felony case. The distinction drawn by Rule 607(b) is, therefore, an "unreasoned distinction" proscribed by the Fourteenth Amendment. Rinaldi v. Yeager, supra, at 384 U. S. 310. That conclusion follows directly from our decision in Williams v. Oklahoma City, 395 U. S. 458, 395 U. S. 459 (1969), rejecting the argument"'that an indigent person, convicted for a violation of a city ordinance, quasi criminal in nature and often referred to as a petty offense, is [not] entitled to a case-made or transcript at city expense in order to perfect an appeal. . . .' [Footnote 6]"IIIThe city of Chicago urges another distinction to set this case apart from Griffin and its progeny. The city notes that the defendants in all the transcript cases previously decided by this Court were sentenced to some term of confinement. Where the accused, as here, is not subject to imprisonment, but only a fine, the city suggests that his interest in a transcript is outweighed by the State's fiscal and other interests in not burdening the appellate process. This argument misconceives the principle of Griffin no less than does the line that Rule 607(b) expressly draws. Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against Page 404 U. S. 197 pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State's fiscal interest is, therefore, irrelevant. Cf. Shapiro v. Thompson, 394 U. S. 618, 394 U. S. 633 (1969).We add that even approaching the problem in the terms the city suggests hardly yields the answer the city tenders. The practical effects of conviction of even petty offenses of the kind involved here are not to be minimized. A fine may bear as heavily on an indigent accused as forced confinement. The collateral consequences of conviction may be even more serious, as when (as was apparently a possibility in this case) the impecunious medical student finds himself barred from the practice of medicine because of a conviction he is unable to appeal for lack of funds. Moreover, the State's long-term interest would not appear to lie in making access to appellate processes from even its most inferior courts depend upon the defendant's ability to pay. It has been aptly said:"[F]ew citizens ever have contact with the higher courts. In the main, it is the police and the lower court Bench and Bar that convey the essence of our democracy to the people.""Justice, if it can be measured, must be measured by the experience the average citizen has with the police and the lower courts. [Footnote 7]"Arbitrary denial of appellate review of proceedings of the State's lowest trial courts may save the State some Page 404 U. S. 198 dollars and cents, but only at the substantial risk of generating frustration and hostility toward its courts among the most numerous consumers of justice.IVWe conclude that appellant cannot be denied a "record of sufficient completeness" to permit proper consideration of his claims. We repeat that this does not mean that he is automatically entitled to a full verbatim transcript. He urges that his claims of insufficiency of the evidence and prejudicial prosecutorial misconduct cannot be fairly judged without recourse to the trial record. [Footnote 8] Draper suggests that these are indeed the kinds of claims that require provision of a verbatim transcript. [Footnote 9] See also Gardner v. California, 393 U. S. 367 (1969). In Draper, however, the State of Washington did not undertake to carry its burden of showing that Page 404 U. S. 199 something less than a complete transcript would suffice. Here, the City of Chicago urges that the Illinois procedures for a "Settled" or "Agreed" statement may provide adequate alternatives. The city also argues that, even if a verbatim record is required, less than a complete transcript may assure fair appellate review. We cannot address these questions, since the record before us contains only the parties' conflicting assertions; so far as appears, neither of the Illinois courts below regarded resolution of the dispute to be relevant in light of Rule 607(b). That this was the view of the Circuit Court is clear. The order of the Supreme Court, however, may not have been based on the rule, but on the ground that appellant had the burden of showing that the alternatives of a "Settled" or "Agreed" statement were inadequate. We hold today that a denial of appellant's motion, either on the basis of the rule, or, in the context of his grounds of appeal, on the basis that he did not meet the burden of showing the inadequacy of the alternatives, would constitute constitutional error.We are informed that appellant's appeal from his conviction has been docketed in the Illinois Supreme Court and that its disposition has been deferred pending our decision of this case. We therefore vacate the order of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMayer v. City of Chicago, 404 U.S. 189 (1971)Mayer v. City of ChicagoNo. 70-5040Argued October 14, 1971Decided December 13, 1971404 U.S. 189SyllabusAppellant was convicted on nonfelony charges of violating two city of Chicago ordinances and was sentenced to pay a fine of $250 on each offense. Desiring to appeal, he petitioned the trial court for a free trial transcript to support his appeal on the grounds of insufficient evidence and prosecutorial misconduct. Although the court found that he was indigent, it denied his application on the basis of an Illinois Supreme Court rule which provided for trial transcripts only in felony cases. Other rules provided alternatives to a transcript in the form of a "Settled Statement" or an "Agreed Statement of Facts." Without resorting to either alternative, appellant moved for a free transcript in the State Supreme Court. The motion was denied.Held:1. Although the State must afford the indigent defendant a trial "record of sufficient completeness' to permit proper consideration of [his] claims," Draper v. Washington, 372 U. S. 487, 372 U. S. 499, it need not necessarily furnish a complete verbatim transcript, but may provide alternatives that accord effective appellate review. Pp. 404 U. S. 193-195.2. When the defendant's grounds for appeal, as here, make out a colorable need for a complete transcript, the State has the burden of showing that only a portion thereof or an "alternative" will suffice for an effective appeal on those grounds. P. 404 U. S. 195.3. The distinction drawn by the State Supreme Court rule between felony and nonfelony offenses is an "unreasoned distinction" proscribed by the Fourteenth Amendment. Pp. 404 U. S. 195-196.4. The fact that the charges on which the appellant was convicted were punishable by a fine, rather than by confinement, does not lessen the invidious discrimination against an indigent defendant. Pp. 404 U. S. 196-198.Vacated and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. BURGER C.J., post, p. 404 U. S. 199, and BLACKMUN, J., post, p. 404 U. S. 201, filed concurring opinions. Page 404 U. S. 190

1984_84-433

JUSTICE REHNQUIST delivered the opinion of the Court.The Education of the Handicapped Act (Act), 84 Stat. 175, as amended, 20 U.S.C. § 1401 et seq., requires participating state and local educational agencies "to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education" to such handicapped children. § 1415(a). These procedures include the right of the parents to participate in the development of an "individualized education program" (IEP) for the child and to challenge in administrative and court proceedings a proposed IEP with which they disagree. §§ 1401 (19), 1415(b), (d), (e). Where, as in the present case, review of a contested IEP takes years to run its course -- years critical to the child's development -- important practical questions arise concerning interim placement of the child and financial responsibility for that placement. This case requires us to address some of those questions.Michael Panico, the son of respondent Robert Panico, was a first grader in the public school system of petitioner Town of Burlington, Mass., when he began experiencing serious difficulties in school. It later became evident that he had "specific learning disabilities," and thus was "handicapped" within the meaning of the Act, 20 U.S.C. § 1401(1). This entitled him to receive at public expense specially designed instruction to meet his unique needs, as well as related transportation. §§ 1401(16), 1401(17). The negotiations and other proceedings between the Town and the Panicos, thus far spanning more than eight years, are too involved to relate in full detail; the following are the parts relevant to the issues on which we granted certiorari.In the spring of 1979, Michael attended the third grade of the Memorial School, a public school in Burlington, Mass., under an IEP calling for individual tutoring by a reading specialist for one hour a day and individual and group counselling. Michael's continued poor performance and the fact that Page 471 U. S. 362 Memorial School was not equipped to handle his needs led to much discussion between his parents and Town school officials about his difficulties and his future schooling. Apparently the course of these discussions did not run smoothly; the upshot was that the Panicos and the Town agreed that Michael was generally of above average to superior intelligence, but had special educational needs calling for a placement in a school other than Memorial. They disagreed over the source and exact nature of Michael's learning difficulties, the Town believing the source to be emotional and the parents believing it to be neurological.In late June, the Town presented the Panicos with a proposed IEP for Michael for the 1979-1980 academic year. It called for placing Michael in a highly structured class of six children with special academic and social needs, located at another Town public school, the Pine Glen School. On July 3, Michael's father rejected the proposed IEP and sought review under § 1415(b)(2) by respondent Massachusetts Department of Education's Bureau of Special Education Appeals (BSEA). A hearing was initially scheduled for August 8, but was apparently postponed in favor of a mediation session on August 17. The mediation efforts proved unsuccessful.Meanwhile, the Panicos received the results of the latest expert evaluation of Michael by specialists at Massachusetts General Hospital, who opined that Michael's "emotional difficulties are secondary to a rather severe learning disorder characterized by perceptual difficulties" and recommended "a highly specialized setting for children with learning handicaps . . . such as the Carroll School," a state-approved private school for special education located in Lincoln, Mass. App. 26, 31. Believing that the Town's proposed placement of Michael at the Pine Glen School was inappropriate in light of Michael's needs, Mr. Panico enrolled Michael in the Carroll School in mid-August at his own expense, and Michael started there in September. Page 471 U. S. 363The BSEA held several hearings during the fall of 1979, and in January, 1980, the hearing officer decided that the Town's proposed placement at the Pine Glen School was inappropriate and that the Carroll School was "the least restrictive adequate program within the record" for Michael's educational needs. The hearing officer ordered the Town to pay for Michael's tuition and transportation to the Carroll School for the 1979-1980 school year, including reimbursing the Panicos for their expenditures on these items for the school year to date.The Town sought judicial review of the State's administrative decision in the United States District Court for the District of Massachusetts pursuant to 20 U.S.C. § 1415(e)(2) and a parallel state statute, naming Mr. Panico and the State Department of Education as defendants. In November, 1980, the District Court granted summary judgment against the Town on the state law claim under a "substantial evidence" standard of review, entering a final judgment on this claim under Federal Rule of Civil Procedure 54(b). The court also set the federal claim for future trial. The Court of Appeals vacated the judgment on the state law claim, holding that review under the state statute was preempted by § 1415(e)(2), which establishes a "preponderance of the evidence" standard of review and which permits the reviewing court to hear additional evidence. 655 F.2d 428, 431-432 (1981).In the meantime, the Town had refused to comply with the BSEA order, the District Court had denied a stay of that order, and the Panicos and the State had moved for preliminary injunctive relief. The State also had threatened outside of the judicial proceedings to freeze all of the Town's special education assistance unless it complied with the BSEA order. Apparently in response to this threat, the Town agreed in February, 1981, to pay for Michael's Carroll School placement and related transportation for the 1980-1981 term, none of which had yet been paid, and to continue Page 471 U. S. 364 paying for these expenses until the case was decided. But the Town persisted in refusing to reimburse Mr. Panico for the expenses of the 1979-1980 school year. When the Court of Appeals disposed of the state claim, it also held that, under this status quo, none of the parties could show irreparable injury, and thus none was entitled to a preliminary injunction. The court reasoned that the Town had not shown that Mr. Panico would not be able to repay the tuition and related costs borne by the Town if he ultimately lost on the merits, and Mr. Panico had not shown that he would be irreparably harmed if not reimbursed immediately for past payments which might ultimately be determined to be the Town's responsibility.On remand, the District Court entered an extensive pretrial order on the Town's federal claim. In denying the Town summary judgment, it ruled that 20 U.S.C. § 1415(e)(3) did not bar reimbursement despite the Town's insistence that the Panicos violated that provision by changing Michael's placement to the Carroll School during the pendency of the administrative proceedings. The court reasoned that § 1415(e)(3) concerned the physical placement of the child, and not the right to tuition reimbursement or to procedural review of a contested IEP. The court also dealt with the problem that no IEP had been developed for the 1980-1981 or 1981-1982 school years. It held that its power under § 1415(e)(2) to grant "appropriate" relief upon reviewing the contested IEP for the 1979-1980 school year included the power to grant relief for subsequent school years despite the lack of IEPs for those years. In this connection, however, the court interpreted the statute to place the burden of proof on the Town to upset the BSEA decision that the IEP was inappropriate for 1979-1980, and on the Panicos and the State to show that the relief for subsequent terms was appropriate.After a 4-day trial, the District Court, in August, 1982, overturned the BSEA decision, holding that the appropriate 1979-1980 placement for Michael was the one proposed by Page 471 U. S. 365 the Town in the IEP, and that the parents had failed to show that this placement would not also have been appropriate for subsequent years. Accordingly, the court concluded that the Town was "not responsible for the cost of Michael's education at the Carroll School for the academic years 1979-80 through 1981-82."In contesting the Town's proposed form of judgment embodying the court's conclusion, Mr. Panico argued that, despite finally losing on the merits of the IEP in August, 1982, he should be reimbursed for his expenditures in 1979-1980, that the Town should finish paying for the recently completed 1981-1982 term, and that he should not be required to reimburse the Town for its payments to date, apparently because the school terms in question fell within the pendency of the administrative and judicial review contemplated by § 1415(e)(2). The case was transferred to another District Judge and consolidated with two other cases to resolve similar issues concerning the reimbursement for expenditures during the pendency of review proceedings.In a decision on the consolidated cases, the court rejected Mr. Panico's argument that the Carroll School was the "current educational placement" during the pendency of the review proceedings, and thus that, under § 1415(e)(3), the Town was obligated to maintain that placement. Doe v. Anrig, 561 F. Supp. 121 (1983). The court reasoned that the Panicos' unilateral action in placing Michael at the Carroll School without the Town's consent could not "confer thereon the imprimatur of continued placement," id. at 129, n. 5, even though, strictly speaking, there was no actual placement in effect during the summer of 1979 because all parties agreed Michael was finished with the Memorial School and the Town itself proposed in the IEP to transfer him to a new school in the fall.The District Court next rejected an argument, apparently grounded at least in part on a state regulation, that the Panicos were entitled to rely on the BSEA decision upholding Page 471 U. S. 366 their placement contrary to the IEP, regardless of whether that decision were ultimately reversed by a court. With respect to the payments made by the Town after the BSEA decision, under the State's threat to cut off funding, the court criticized the State for resorting to extrajudicial pressure to enforce a decision subject to further review. Because this "was not a case where the town was legally obliged under section 1415(e)(3) to continue payments preserving the status quo," the State's coercion could not be viewed as "the basis for a final decision on liability," and could only be "regarded as other than wrongful . . . on the assumption that the payments were to be returned if the order was ultimately reversed." Id. at 130. The court entered a judgment ordering the Panicos to reimburse the Town for its payments for Michael's Carroll placement and related transportation in 1980-1981 and 1981-1982. The Panicos appealed.In a broad opinion, most of which we do not review, the Court of Appeals for the First Circuit remanded the case a second time. 736 F.2d 773 (1984). The court ruled, among other things, that the District Court erred in conducting a full trial de novo, that it gave insufficient weight to the BSEA findings, and that in other respects it did not properly evaluate the IEP. The court also considered several questions about the availability of reimbursement for interim placement. The Town argued that § 1415(e)(3) bars the Panicos from any reimbursement relief, even if on remand they were to prevail on the merits of the IEP, because of their unilateral change of Michael's placement during the pendency of the § 1415(e)(2) proceedings. The court held that such unilateral parental change of placement would not be "a bar to reimbursement of the parents if their actions are held to be appropriate at final judgment." Id. at 799. In dictum, the court suggested, however, that a lack of parental consultation with the Town or "attempt to achieve a negotiated compromise and agreement on a private placement," as Page 471 U. S. 367 contemplated by the Act, "may be taken into account in a district court's computation of an award of equitable reimbursement." Ibid. To guide the District Court on remand, the court stated that "whether to order reimbursement, and at what amount, is a question determined by balancing the equities." Id. at 801. The court also held that the Panicos' reliance on the BSEA decision would estop the Town from obtaining reimbursement "for the period of reliance, and requires that, where parents have paid the bill for the period, they must be reimbursed." Ibid.The Town filed a petition for a writ of certiorari in this Court challenging the decision of the Court of Appeals on numerous issues, including the scope of judicial review of the administrative decision and the relevance to the merits of an IEP of violations by local school authorities of the Act's procedural requirements. We granted certiorari, 469 U.S. 1071 (1984), only to consider the following two issues: whether the potential relief available under § 1415(e)(2) includes reimbursement to parents for private school tuition and related expenses, and whether § 1415(e)(3) bars such reimbursement to parents who reject a proposed IEP and place a child in a private school without the consent of local school authorities. We express no opinion on any of the many other views stated by the Court of Appeals.Congress stated the purpose of the Act in these words:"to assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of handicapped children and their parents or guardians are protected."20 U.S.C. § 1400(c). The Act defines a "free appropriate public education" to mean"special education and related services which (A) have been provided at public expense, under public supervision Page 471 U. S. 368 and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with [an] individualized education program."20 U.S.C. § 1401 (18).To accomplish this ambitious objective, the Act provides federal money to state and local educational agencies that undertake to implement the substantive and procedural requirements of the Act. See Hendrick Hudson District Bd. of Education v. Rowley, 458 U. S. 176, 458 U. S. 179-184 (1982).The modus operandi of the Act is the already mentioned "individualized educational program." The IEP is in brief a comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs. § 1401(19). The IEP is to be developed jointly by a school official qualified in special education, the child's teacher, the parents or guardian, and, where appropriate, the child. In several places, the Act emphasizes the participation of the parents in developing the child's educational program and assessing its effectiveness. See §§ 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2); 34 CFR § 300.345 (1984).Apparently recognizing that this cooperative approach would not always produce a consensus between the school officials and the parents, and that, in any disputes, the school officials would have a natural advantage, Congress incorporated an elaborate set of what it labeled "procedural safeguards" to insure the full participation of the parents and proper resolution of substantive disagreements. Section 1415(b) entitles the parents "to examine all relevant records with respect to the identification, evaluation, and educational placement of the child," to obtain an independent educational evaluation of the child, to notice of any decision to initiate or change the identification, evaluation, or educational placement Page 471 U. S. 369 of the child, and to present complaints with respect to any of the above. The parents are further entitled to "an impartial due process hearing," which in the instant case was the BSEA hearing, to resolve their complaints.The Act also provides for judicial review in state or federal court to "[a]ny party aggrieved by the findings and decision" made after the due process hearing. The Act confers on the reviewing court the following authority:"[T]he court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."§ 1415(e)(2). The first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.We conclude that the Act authorizes such reimbursement. The statute directs the court to "grant such relief as [it] determines is appropriate." The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be "appropriate." Absent other reference, the only possible interpretation is that the relief is to be "appropriate" in light of the purpose of the Act. As already noted, this is principally to provide handicapped children with "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children, but the Act also provides for placement in private schools at public expense where this is not possible. See § 1412(5); 34 CFR §§ 300.132, 300.227, 300.307(b), 300.347 Page 471 U. S. 370 (1984). In a case where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.If the administrative and judicial review under the Act could be completed in a matter of weeks, rather than years, it would be difficult to imagine a case in which such prospective injunctive relief would not be sufficient. As this case so vividly demonstrates, however, the review process is ponderous. A final judicial decision on the merits of an IEP will, in most instances, come a year or more after the school term covered by that IEP has passed. In the meantime, the parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement. If they choose the latter course, which conscientious parents who have adequate means and who are reasonably confident of their assessment normally would, it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials. If that were the case, the child's right to a free appropriate public education, the parents' right to participate fully in developing a proper IEP, and all of the procedural safeguards would be less than complete. Because Congress undoubtedly did not intend this result, we are confident that, by empowering the court to grant "appropriate" relief, Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.In this Court, the Town repeatedly characterizes reimbursement as "damages," but that simply is not the case. Reimbursement merely requires the Town to belatedly pay Page 471 U. S. 371 expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP. Such a post hoc determination of financial responsibility was contemplated in the legislative history:"If a parent contends that he or she has been forced, at that parent's own expense, to seek private schooling for the child because an appropriate program does not exist within the local educational agency responsible for the child's education and the local educational agency disagrees, that disagreement and the question of who remains financially responsible is a matter to which the due process procedures established under [the predecessor to § 1415] appl[y]."S.Rep. No. 94-168, p. 32 (1975) (emphasis added). See 34 CFR § 300.403(b) (1984) (disagreements and question of financial responsibility subject to the due process procedures).Regardless of the availability of reimbursement as a form of relief in a proper case, the Town maintains that the Panicos have waived any right they otherwise might have to reimbursement because they violated § 1415(e)(3), which provides:"During the pendency of any proceedings conducted pursuant to [§ 1415], unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child. . . ."We need not resolve the academic question of what Michael's "then current educational placement" was in the summer of 1979, when both the Town and the parents had agreed that a new school was in order. For the purposes of our decision, we assume that the Pine Glen School, proposed in the IEP, was Michael's current placement and, therefore, that the Panicos did "change" his placement after they had rejected the IEP and had set the administrative review in motion. In Page 471 U. S. 372 so doing, the Panicos contravened the conditional command of § 1415(e)(3) that "the child shall remain in the then current educational placement."As an initial matter, we note that the section calls for agreement by either the State or the local educational agency. The BSEA's decision in favor of the Panicos and the Carroll School placement would seem to constitute agreement by the State to the change of placement. The decision was issued in January, 1980, so from then on the Panicos were no longer in violation of § 1415(e)(3). This conclusion, however, does not entirely resolve the instant dispute, because the Panicos are also seeking reimbursement for Michael's expenses during the fall of 1979, prior to the State's concurrence in the Carroll School placement.We do not agree with the Town that a parental violation of § 1415(e)(3) constitutes a waiver of reimbursement. The provision says nothing about financial responsibility, waiver, or parental right to reimbursement at the conclusion of judicial proceedings. Moreover, if the provision is interpreted to cut off parental rights to reimbursement, the principal purpose of the Act will, in many cases, be defeated in the same way as if reimbursement were never available. As in this case, parents will often notice a child's learning difficulties while the child is in a regular public school program. If the school officials disagree with the need for special education or the adequacy of the public school's program to meet the child's needs, it is unlikely they will agree to an interim private school placement while the review process runs its course. Thus, under the Town's reading of § 1415(e)(3), the parents are forced to leave the child in what may turn out to be an inappropriate educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement. The Act was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives. Page 471 U. S. 373The legislative history supports this interpretation, favoring a proper interim placement pending the resolution of disagreements over the IEP:"The conferees are cognizant that an impartial due process hearing may be required to assure that the rights of the child have been completely protected. We did feel, however, that the placement or change of placement should not be unnecessarily delayed while long and tedious administrative appeals were being exhausted. Thus the conference adopted a flexible approach to try to meet the needs of both the child and the State."121 Cong.Rec. 37412 (1975) (Sen. Stafford). We think at least one purpose of § 1415(e)(3) was to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings. As we observed in Rowley, 458 U.S. at 458 U. S. 192, the impetus for the Act came from two federal court decisions, Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (ED Pa.1971), and 343 F. Supp. 279 (1972), and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (DC 1972), which arose from the efforts of parents of handicapped children to prevent the exclusion or expulsion of their children from the public schools. Congress was concerned about the apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special classes. See § 1400(b)(4); 34 CFR § 300.347(a) (1984). We also note that § 1415(e)(3) is located in a section detailing procedural safeguards which are largely for the benefit of the parents and the child.This is not to say that § 1415(e)(3) has no effect on parents. While we doubt that this provision would authorize a court to order parents to leave their child in a particular placement, we think it operates in such a way that parents who unilaterally change their child's placement during the pendency of Page 471 U. S. 374 review proceedings, without the consent of state or local school officials, do so at their own financial risk. If the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child's placement violated § 1415(e)(3). This conclusion is supported by the agency's interpretation of the Act's application to private placements by the parents:"(a) If a handicapped child has available a free appropriate public education and the parents choose to place the child in a private school or facility, the public agency is not required by this part to pay for the child's education at the private school or facility. . . .""(b) Disagreements between a parent and a public agency regarding the availability of a program appropriate for the child, and the question of financial responsibility, are subject to the due process procedures under [§ 1415]."34 CFR § 300.403 (1984).We thus resolve the questions on which we granted certiorari; because the case is here in an interlocutory posture, we do not consider the estoppel ruling below or the specific equitable factors identified by the Court of Appeals for granting relief. We do think that the court was correct in concluding that "such relief as the court determines is appropriate," within the meaning of § 1415(e)(2), means that equitable considerations are relevant in fashioning relief. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSchool Committee v. Dept. of Educ., 471 U.S. 359 (1985)School Committee of the Town of Burlington v.Department of Education of MassachusettsNo. 84-433.Argued March 26, 1985Decided April 29, 1985471 U.S. 359SyllabusThe Education of the Handicapped Act requires participating state and local educational agencies to assure that handicapped children and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education for such children. These procedures include the parents' right to participate in the development of an "individualized education program" (IEP) for the child and to challenge in administrative and court proceedings a proposed IEP with which they disagree. With respect to judicial review, the Act in 20 U.S.C. § 1415(e)(2) authorizes the reviewing court to "grant such relief as the court determines is appropriate." Section 1415(e)(3) provides that, during the pendency of any review proceedings, unless the state or local educational agency and the parents otherwise agree, "the child shall remain in the then current educational placement of such child." Respondent father of a handicapped child rejected petitioner town's proposed IEP for the 1979-1980 school year calling for placement of the child in a certain public school, and sought review by respondent Massachusetts Department of Education's Bureau of Special Education Appeals (BSEA). Meanwhile, the father, at his own expense, enrolled the child in a state-approved private school for special education. The BSEA thereafter decided that the town's proposed IEP was inappropriate, and that the private school was better suited for the child's educational needs, and ordered the town to pay the child's expenses at the private school for the 1979-1980 school year. The town then sought review in Federal District Court. Ultimately, after the town in the meantime had agreed to pay for the child's private school placement for the 1980-1981 school year but refused to reimburse the father for the 1979-1980 school year as ordered by the BSEA, the court overturned the BSEA's decision, holding that the appropriate 1979-1980 placement was the one proposed in the IEP, and that the town was not responsible for the costs at the private school for the 1979-1980 through 1981-1982 school years. The Court of Appeals, remanding, held that the father's unilateral change of the child's placement during the pendency of the Page 471 U. S. 360 administrative proceedings would not be a bar to reimbursement if such change were held to be appropriate.Held:1. The grant of authority to a reviewing court under § 1415(e)(2) includes the power to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act. The ordinary meaning of the language in § 1415(e)(2) directing the court to "grant such relief as [it] determines is appropriate" confers broad discretion on the court. To deny such reimbursement would mean that the child's right to a free appropriate public education, the parents' right to participate fully in developing a proper IEP, and all of the procedural safeguards of the Act would be less than complete. Pp. 471 U. S. 369-371.2. A parental violation of § 1415(e)(3) by changing the "then current educational placement" of their child during the pendency of proceedings to review a challenged proposed IEP does not constitute a waiver of the parents' right to reimbursement for expenses of the private placement. Otherwise, the parents would be forced to leave the child in what may turn out to be an inappropriate educational placement or to obtain the appropriate placement only by sacrificing any claim for reimbursement. But if the courts ultimately determine that the proposed IEP was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child's placement violated § 1415(e)(3). Pp. 471 U. S. 371-374.736 F.2d 773, affirmed. REHNQUIST, J., delivered the opinion for a unanimous Court. Page 471 U. S. 361

1982_81-334

JUSTICE STEVENS delivered the opinion of the Court.This case arises out of a dispute between parties to a multiemployer collective bargaining agreement. The plaintiff unions allege that, in violation of the antitrust laws, the multiemployer association and its members coerced certain third parties, as well as some of the association's members, to enter into business relationships with nonunion firms. This coercion, according to the complaint, adversely affected the trade of certain unionized firms, and thereby restrained the Page 459 U. S. 521 business activities of the unions. The question presented is whether the complaint sufficiently alleges that the unions have been "injured in [their] business or property by reason of anything forbidden in the antitrust laws," and may therefore recover treble damages under § 4 of the Clayton Act. 38 Stat. 731, 15 U.S.C. § 15. Unlike the majority of the Court of Appeals for the Ninth Circuit, we agree with the District Court's conclusion that the complaint is insufficient.IThe two named plaintiffs (the Union) -- the California State Council of Carpenters and the Carpenters 46 Northern Counties Conference Board -- are affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The Union represents more than 50,000 individuals employed by the defendants in the carpentry, drywall, piledriving, and related industries throughout the State of California. The Union's complaint is filed as a class action on behalf of numerous affiliated local unions and district councils. The defendants are Associated General Contractors of California, Inc. (Associated), a membership corporation composed of various building and construction contractors, approximately 250 members of Associated who are identified by name in an exhibit attached to the complaint, and 1,000 unidentified coconspirators.The Union and Associated, and their respective predecessors, have been parties to collective bargaining agreements governing the terms and conditions of employment in construction-related industries in California for over 25 years. The wages and other benefits paid pursuant to these agreements amount to more than $750 million per year. In addition, approximately 3,000 contractors who are not members of Associated have entered into separate "memorandum agreements" with the Union, which bind them to the terms of the master collective bargaining agreements between the Union and Associated. The amended complaint does not Page 459 U. S. 522 state the number of nonsignatory employers or the number of nonunion employees who are active in the relevant market.In paragraphs 23 and 24 of the amended complaint, the Union alleges the factual basis for five different damages claims. [Footnote 1] Paragraph 23 alleges generally that the defendants conspired to abrogate and weaken the collective bargaining relationship between the Union and the signatory employers. In seven subsections, paragraph 24 sets forth activities allegedly committed pursuant to the conspiracy. The most specific allegations relate to the labor relations between the parties. [Footnote 2] The complaint's description of actions affecting nonparties is both brief and vague. It is alleged that defendants"(3) Advocated, encouraged, induced, and aided nonmembers of defendant Associated General Contractors of California, Inc., to refuse to enter into collective bargaining relationships with plaintiffs and each of them;""(4) Advocated, encouraged, induced, coerced, aided and encouraged owners of land and other letters of construction contracts to hire contractors and subcontractors who are not signatories to collective bargaining agreements with plaintiffs and each of them; "Page 459 U. S. 523"(5) Advocated, induced, coerced, encouraged, and aided members of Associated General Contractors of California, Inc., nonmembers of Associated General Contractors of California, Inc., and 'memorandum contractors' to enter into subcontracting agreements with subcontractors who are not signatories to any collective bargaining agreements with plaintiffs and each of them. . . ."App. E to Pet. for Cert. 17-19 (emphasis added). [Footnote 3]Paragraph 25 describes the alleged "purpose and effect" of these activities: first, "to weaken, destroy, and restrain the trade of certain contractors," who were either members of Associated or memorandum contractors who had signed agreements with the Union; and second, to restrain "the free exercise of the business activities of plaintiffs and each of them." [Footnote 4] Plaintiffs claim that these alleged antitrust violations Page 459 U. S. 524 caused them $25 million in damages. [Footnote 5] The complaint does not identify any specific component of this damages claim.After hearing "lengthy oral argument" and after receiving two sets of written briefs, one filed before and the second filed after this Court's decision in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975), the District Court dismissed the complaint, including the federal antitrust claim. 404 F. Supp. 1067 (ND Cal.1975). [Footnote 6] The court observed that the complaint alleged "a rather vague, general conspiracy," and that the allegations "appear typical of disputes a union might have with an employer," which, in the normal course, are resolved by grievance and arbitration or by the NLRB. Id. at 1069. [Footnote 7] Without seeking to clarify or further amend the first amended complaint, the Union filed its notice of appeal on October 9, 1975.Over five years later, on November 20, 1980, the Court of Appeals reversed the District Court's dismissal of the Union's federal antitrust claim. 648 F.2d 527. [Footnote 8] The majority Page 459 U. S. 525 of the Court of Appeals disagreed with the District Court's characterization of the antitrust claim; it adopted a construction of the amended complaint which is somewhat broader than the allegations in the pleading itself. [Footnote 9] The Court of Appeals held (1) that a Sherman Act violation -- a group boycott -- had been alleged, id. at 531-532; (2) that the defendants' conduct was not within the antitrust exemption for labor activities, id. at 532-536; and (3) that the plaintiffs had standing to recover damages for the injury to their own business activities occasioned by the defendants' "industry-wide boycott against all subcontractors with whom the Unions had signed agreements. . . ." Id. at 537. In support of the Union's standing, the majority reasoned that the Union was within the area of the economy endangered by a breakdown of competitive conditions, not only because injury to the Union was a foreseeable consequence of the antitrust violation, but also because that injury was specifically intended by the defendants. The court noted that its conclusion was consistent with other cases holding that union organizational Page 459 U. S. 526 and representational activities constitute a form of business protected by the antitrust laws. [Footnote 10]IIAs the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged, or that the defendants have violated the antitrust laws in ways that have not been alleged. [Footnote 11]We first note that the Union's most specific claims of injury involve matters that are not subject to review under the antitrust laws. The amended complaint alleges that the defendants have breached their collective bargaining agreements in various ways, and that they have manipulated their corporate names and corporate status in order to divert business to nonunion divisions or firms that they actually control. Such deceptive diversion of business to the nonunion portion of a so-called "double-breasted" operation might constitute a breach of contract, an unfair labor practice, or perhaps even a Page 459 U. S. 527 common law fraud or deceit, but in the context of the bargaining relationship between the parties to this litigation, such activities are plainly not subject to review under the federal antitrust laws. [Footnote 12] Similarly, the charge that the defendants "advocated, encouraged, induced, and aided nonmembers . . . to refuse to enter into collective bargaining relationships" with the Union (� 24(3)) does not describe an antitrust violation. [Footnote 13]The Union's antitrust claims arise from alleged restraints caused by defendants in the market for construction contracting and subcontracting. [Footnote 14] The complaint alleges that defendants "coerced" [Footnote 15] two classes of persons: (1) landowners and Page 459 U. S. 528 others who let construction contracts, i.e., the defendants' customers and potential customers; and (2) general contractors, i.e., defendants' competitors and defendants themselves. Coercion against the members of both classes was designed to induce them to give some of their business -- but not necessarily all of it -- to nonunion firms. [Footnote 16] Although the pleading does not allege that the coercive conduct increased the aggregate share of nonunion firms in the market, it does allege that defendants' activities weakened and restrained the trade "of certain contractors." See n 4, supra. Thus, particular victims of coercion may have diverted particular contracts to nonunion firms, and thereby caused certain unionized subcontractors to lose some business.We think the Court of Appeals properly assumed that such coercion might violate the antitrust laws. [Footnote 17] An agreement to restrain trade may be unlawful even though it does not entirely exclude its victims from the market. See Associated Press v. United States, 326 U. S. 1, 326 U. S. 17 (1945). Coercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions, and may be condemned even without proof of its actual market effect. Cf. Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207, 359 U. S. 210-214 (1959). [Footnote 18] Page 459 U. S. 529Even though coercion directed by defendants at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not, of course, necessarily follow that still another party -- the Union -- is a person injured by reason of a violation of the antitrust laws within the meaning of § 4 of the Clayton Act.IIIWe first consider the language in the controlling statute. See Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). The class of persons who may maintain a private damages action under the antitrust laws is broadly defined in § 4 of the Clayton Act. 15 U.S.C. § 15. That section provides:"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee."A literal reading of the statute is broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation. Some of our prior cases have paraphrased the statute in an equally expansive way. [Footnote 19] But before we hold that the statute is as broad as its Page 459 U. S. 530 words suggest, we must consider whether Congress intended such an open-ended meaning.The critical statutory language was originally enacted in 1890 as § 7 of the Sherman Act. 26 Stat. 210. The legislative history of the section shows that Congress was primarily interested in creating an effective remedy for consumers who were forced to pay excessive prices by the giant trusts and combinations that dominated certain interstate markets. [Footnote 20] That history supports a broad construction of this remedial provision. A proper interpretation of the section cannot, however, ignore the larger context in which the entire statute was debated. Page 459 U. S. 531The repeated references to the common law in the debates that preceded the enactment of the Sherman Act make it clear that Congress intended the Act to be construed in the light of its common law background. [Footnote 21] Senator Sherman stated that the bill"does not announce a new principle of law, but applies old and well-recognized principles of the common law to the complicated jurisdiction of our State and Federal Government. [Footnote 22]"Thus, our comments on the need for judicial interpretation of § 1 are equally applicable to § 7:"One problem presented by the language of § 1 of the Sherman Act is that it cannot mean what it says. The statute says that 'every' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis perceptively noted, restraint is the very essence of every contract; read literally, § 1 would outlaw the entire body of private contract law. . . .""Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by drawing on common law tradition."National Society of Page 459 U. S. 532 Professional Engineers v. United States, 435 U. S. 679, 435 U. S. 687-688 (1978) (footnotes omitted). Just as the substantive content of the Sherman Act draws meaning from its common law antecedents, so must we consider the contemporary legal context in which Congress acted when we try to ascertain the intended scope of the private remedy created by § 7.In 1890, notwithstanding general language in many state constitutions providing in substance that "every wrong shall have a remedy," [Footnote 23] a number of judge-made rules circumscribed the availability of damages recoveries in both tort and contract litigation -- doctrines such as foreseeability and proximate cause, [Footnote 24] directness of injury, [Footnote 25] certainty of damages, [Footnote 26] Page 459 U. S. 533 and privity of contract. [Footnote 27] Although particular common law limitations were not debated in Congress, the frequent references to common law principles imply that Congress simply assumed that antitrust damages litigation would be subject to constraints comparable to well-accepted common law rules applied in comparable litigation. [Footnote 28]The federal judges who first confronted the task of giving meaning to § 7 so understood the congressional intent. Thus, in 1910, the Court of Appeals for the Third Circuit held as a matter of law that neither a creditor nor a stockholder of a corporation that was injured by a violation of the antitrust laws could recover treble damages under § 7. Loeb v. Eastman Page 459 U. S. 534 Kodak Co., 183 F. 704. The court explained that the plaintiff's injury as a stockholder was "indirect, remote, and consequential." Id. at 709. [Footnote 29] This holding was consistent with Justice Holmes' explanation of a similar construction of the remedial provision of the Interstate Commerce Act a few years later: "The general tendency of the law, in regard to damages at least, is not to go beyond the first step." Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U. S. 531, 245 U. S. 533 (1918). [Footnote 30] When Congress enacted § 4 of the Clayton Act in 1914, and when it reenacted that section in 1955, 69 Stat. 282, it adopted the language of § 7 and presumably also the judicial gloss that avoided a simple literal interpretation.As this Court has observed, the lower federal courts have been"virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation."Hawaii v. Standard Oil Co., 405 U. S. 251, 405 U. S. 263, n. 14 (1972). Just last Term we stated:"An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but, 'despite the broad wording of § 4, there is a point beyond which the wrongdoer should not be held liable.' [Illinois Page 459 U. S. 535 Brick Co. v. Illinois, 431 U.S.] at 431 U. S. 760 (BRENNAN, J., dissenting). It is reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property."Blue Shield of Virginia v. McCready, 457 U. S. 465, 457 U. S. 476-477 (1982).It is plain, therefore, that the question whether the Union may recover for the injury it allegedly suffered by reason of the defendants' coercion against certain third parties cannot be answered simply by reference to the broad language of § 4. Instead, as was required in common law damages litigation in 1890, the question requires us to evaluate the plaintiff's harm, the alleged wrongdoing by the defendants, and the relationship between them. [Footnote 31]IVThere is a similarity between the struggle of common law judges to articulate a precise definition of the concept of "proximate cause" [Footnote 32] and the struggle of federal judges to Page 459 U. S. 536 articulate a precise test to determine whether a party injured by an antitrust violation may recover treble damages. [Footnote 33] It is common ground that the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing. In both situations, the infinite variety of claims that may arise make it virtually impossible to announce a blackletter rule that will dictate the result in every case. [Footnote 34] Instead, Page 459 U. S. 537 previously decided cases identify factors that circumscribe and guide the exercise of judgment in deciding whether the law affords a remedy in specific circumstances.The factors that favor judicial recognition of the Union's antitrust claim are easily stated. The complaint does allege a causal connection between an antitrust violation and harm to the Union and further alleges that the defendants intended to cause that harm. As we have indicated, however, the mere fact that the claim is literally encompassed by the Clayton Act does not end the inquiry. We are also satisfied that an allegation of improper motive, although it may support a plaintiff's damages claim under § 4, [Footnote 35] is not a panacea that will enable any complaint to withstand a motion to dismiss. [Footnote 36] Indeed, in McCready, we specifically held: "The availability of the § 4 remedy to some person who claims its benefit is not a question of the specific intent of the conspirators." 457 U.S. at 457 U. S. 479. [Footnote 37] Page 459 U. S. 538A number of other factors may be controlling. In this case, it is appropriate to focus on the nature of the plaintiff's alleged injury. As the legislative history shows, the Sherman Act was enacted to assure customers the benefits of price competition, and our prior cases have emphasized the central interest in protecting the economic freedom of participants in the relevant market. [Footnote 38] Last Term in Blue Shield of Virginia v. McCready, supra, we identified the relevance of this central policy to a determination of the plaintiff's right to maintain an action under § 4. McCready alleged that she was a consumer of psychotherapeutic services and that she had been injured by the defendants' conspiracy to restrain competition in the market for such services. [Footnote 39] The Court stressed the fact that "McCready's injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws." 457 U.S. at 457 U. S. 483, citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 429 U. S. 487-489 (1977). After noting that her injury "was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market," 457 U.S. at 457 U. S. 484, the Court concluded that such an injury "falls squarely within the area of congressional concern." Ibid. Page 459 U. S. 539In this case, however, the Union was neither a consumer nor a competitor in the market in which trade was restrained. [Footnote 40] It is not clear whether the Union's interests would be served or disserved by enhanced competition in the market. As a general matter, a union's primary goal is to enhance the earnings and improve the working conditions of its membership; that goal is not necessarily served, and indeed may actually be harmed, by uninhibited competition among employers striving to reduce costs in order to obtain a competitive advantage over their rivals. [Footnote 41] At common law -- as well as in the early days of administration of the federal antitrust laws -- the collective activities of labor unions were regarded as a form of conspiracy in restraint of trade. [Footnote 42] Federal policy has since developed not only a broad labor exemption from the antitrust laws, [Footnote 43] but also a separate body of Page 459 U. S. 540 labor law specifically designed to protect and encourage the organizational and representational activities of labor unions. Set against this background, a union, in its capacity as bargaining representative, will frequently not be part of the class the Sherman Act was designed to protect, especially in disputes with employers with whom it bargains. In each case, its alleged injury must be analyzed to determine whether it is of the type that the antitrust statute was intended to forestall. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, at 429 U. S. 487-488. In this case, particularly in light of the longstanding collective bargaining relationship between the parties, the Union's labor-market interests seem to predominate, and the Brunswick test is not satisfied.An additional factor is the directness or indirectness of the asserted injury. In this case, the chain of causation between the Union's injury and the alleged restraint in the market for construction subcontracts contains several somewhat vaguely defined links. According to the complaint, defendants applied coercion against certain landowners and other contracting parties in order to cause them to divert business from certain union contractors to nonunion contractors. [Footnote 44] As a result, Page 459 U. S. 541 the Union's complaint alleges, the Union suffered unspecified injuries in its "business activities." [Footnote 45] It is obvious that any such injuries were only an indirect result of whatever harm may have been suffered by "certain" construction contractors and subcontractors. [Footnote 46]If either these firms or the immediate victims of coercion by defendants have been injured by an antitrust violation, their injuries would be direct and, as we held in McCready, they would have a right to maintain their own treble damages actions against the defendants. An action on their behalf would encounter none of the conceptual difficulties that Page 459 U. S. 542 encumber the Union's claim. [Footnote 47] The existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest in antitrust enforcement diminishes the justification for allowing a more remote party such as the Union to perform the office of a private attorney general. [Footnote 48] Denying the Union a remedy on the basis of its allegations in this case is not likely to leave a significant antitrust violation undetected or unremedied.Partly because it is indirect, and partly because the alleged effects on the Union may have been produced by independent factors, the Union's damages claim is also highly speculative. There is, for example, no allegation that any collective bargaining agreement was terminated as a result of the coercion, no allegation that the aggregate share of the contracting market controlled by union firms has diminished, no allegation that the number of employed union members has declined, and no allegation that the Union's revenues in the form of dues or initiation fees have decreased. Moreover, although coercion against certain firms is alleged, there is no assertion that any such firm was prevented from doing business with any union firms, or that any firm or group of firms was subjected to a complete boycott. See nn. 9 15 and 16 supra. Page 459 U. S. 543 Other than the alleged injuries flowing from breaches of the collective bargaining agreements -- injuries that would be remediable under other laws -- nothing but speculation informs the Union's claim of injury by reason of the alleged unlawful coercion. Yet, as we have recently reiterated, it is appropriate for § 4 purposes "to consider whether a claim rests at bottom on some abstract conception or speculative measure of harm." Blue Shield of Virginia v. McCready, 457 U.S. at 457 U. S. 475, n. 11, citing Hawaii v. Standard Oil Co., 405 U.S. at 405 U. S. 262-263, n. 14. [Footnote 49]The indirectness of the alleged injury also implicates the strong interest, identified in our prior cases, in keeping the scope of complex antitrust trials within judicially manageable limits. [Footnote 50] These cases have stressed the importance of avoiding Page 459 U. S. 544 either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other. Thus, in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968), we refused to allow the defendants to discount the plaintiffs' damages claim to the extent that overcharges had been passed on to the plaintiffs' customers. We noted that any attempt to ascertain damages with such precision "would often require additional long and complicated proceedings involving massive evidence and complicated theories." Id. at 392 U. S. 493. In Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977), we held that treble damages could not be recovered by indirect purchasers of concrete blocks who had paid an enhanced price because their suppliers had been victimized by a price-fixing conspiracy. We observed that potential plaintiffs at each level in the distribution chain would be in a position to assert conflicting claims to a common fund, the amount of the alleged overcharge, thereby creating the danger of multiple liability for the fund and prejudice to absent plaintiffs."Permitting the use of pass-on theories under § 4 essentially would transform treble damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers. However appealing this attempt to allocate the overcharge might seem in theory, it would add whole new dimensions of complexity to treble-damages suits, and seriously undermine their effectiveness."Id. at 431 U. S. 737-738.The same concerns should guide us in determining whether the Union is a proper plaintiff under § 4 of the Clayton Act. [Footnote 51] Page 459 U. S. 545 As the Court wrote in Illinois Brick, massive and complex damages litigation not only burdens the courts, but also undermines the effectiveness of treble damages suits. Id. at 431 U. S. 745. In this case, if the Union's complaint asserts a claim for damages under § 4, the District Court would face problems of identifying damages and apportioning them among directly victimized contractors and subcontractors and indirectly affected employees and union entities. It would be necessary to determine to what extent the coerced firms diverted business away from union subcontractors, and then to what extent those subcontractors absorbed the damage to their businesses or passed it on to employees by reducing the workforce or cutting hours or wages. In turn, it would be necessary to ascertain the extent to which the affected employees absorbed their losses and continued to pay union dues. [Footnote 52]We conclude, therefore, that the Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors -- the nature of the Union's injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union's alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy -- weigh heavily against judicial enforcement of the Union's antitrust claim. Accordingly, we hold that, based on the allegations of this complaint, the District Page 459 U. S. 546 Court was correct in concluding that the Union is not a person injured by reason of a violation of the antitrust laws within the meaning of § 4 of the Clayton Act. The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtAssociated Gen. Contractors v. Carpenters, 459 U.S. 519 (1983)Associated General Contractors v.California State Council of CarpentersNo. 81-334Argued October 5, 1982Decided February 22, 1983459 U.S. 519SyllabusPetitioner multiemployer association and respondents (collectively the Union) are parties to collective bargaining agreements governing the terms and conditions of employment in construction-related industries in California. The Union filed suit in Federal District Court, alleging that petitioner and its members, in violation of the antitrust laws, coerced certain third parties and some of petitioner's members to enter into business relationships with nonunion contractors and subcontractors, and thus adversely affected the trade of certain unionized firms, thereby restraining the Union's business activities. Treble damages were sought under § 4 of the Clayton Act, which authorizes recovery of such damages by "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." The District Court dismissed the complaint as insufficient to allege a cause of action for treble damages under § 4. The Court of Appeals reversed.Held: Based on the allegations of the complaint, the Union was not a person injured by reason of a violation of the antitrust laws within the meaning of § 4 of the Clayton Act. Pp. 459 U. S. 526-546.(a) Even though coercion allegedly directed by petitioner at third parties in order to restrain the trade of "certain" contractors and subcontractors may have been unlawful, it does not necessarily follow that the Union is a person injured by reason of a violation of the antitrust laws within the meaning of § 4. Pp. 459 U. S. 526-529.(b) The question whether the Union may recover for the alleged injury cannot be answered by literal reference to § 4's broad language. Instead, as was required in common law damages litigation in 1890 when § 4's predecessor was enacted as § 7 of the Sherman Act, the question requires an evaluation of the Union's harm, the petitioner's alleged wrongdoing, and the relationship between them. Pp. 459 U. S. 529-535.(c) The Union's allegations of consequential harm resulting from a violation of the antitrust laws, although buttressed by an allegation of intent to harm the Union, are insufficient as a matter of law. Other relevant factors -- the nature of the alleged injury to the Union, which is Page 459 U. S. 520 neither a consumer nor a competitor in the market in which trade was allegedly restrained, the tenuous and speculative character of the causal relationship between the Union's alleged injury and the alleged restraint, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy -- weigh heavily against judicial enforcement of the Union's antitrust claim. Pp. 459 U. S. 535-546.648 F.2d 527, reversed.STEVENS, J., delivered the opinion of the Court in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 459 U. S. 546.

1987_86-1294

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Section 102(c) of the National Security Act of 1947, 61 Stat. 498, as amended, provides that:"[T]he Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States. . . ."50 U.S.C. § 403(c). In this case we decide whether, and to what extent, the termination decisions of the Director under § 102(c) are judicially reviewable.IRespondent John Doe was first employed by the Central Intelligence Agency (CIA or Agency) in 1973 as a clerk typist. He received periodic fitness reports that consistently rated him as an excellent or outstanding employee. By 1977, respondent had been promoted to a position as a covert electronics technician. Page 486 U. S. 595In January, 1982, respondent voluntarily informed a CIA security officer that he was a homosexual. Almost immediately, the Agency placed respondent on paid administrative leave pending an investigation of his sexual orientation and conduct. On February 12 and again on February 17, respondent was extensively questioned by a polygraph officer concerning his homosexuality and possible security violations. Respondent denied having sexual relations with any foreign nationals, and maintained that he had not disclosed classified information to any of his sexual partners. After these interviews, the officer told respondent that the polygraph tests indicated that he had truthfully answered all questions. The polygraph officer then prepared a five-page summary of his interviews with respondent, to which respondent was allowed to attach a two-page addendum.On April 14, 1982, a CIA security agent informed respondent that the Agency's Office of Security had determined that respondent's homosexuality posed a threat to security, but declined to explain the nature of the danger. Respondent was then asked to resign. When he refused to do so, the Office of Security recommended to the CIA Director (petitioner's predecessor) that respondent be dismissed. After reviewing respondent's records and the evaluations of his subordinates, the Director"deemed it necessary and advisable in the interests of the United States to terminate [respondent's] employment with this Agency pursuant to section 102(c) of the National Security Act. . . . [Footnote 1] Respondent was also advised that, while the CIA would give him a positive recommendation in any future job search, if he applied for a job requiring a security clearance, the Agency would inform the prospective employer that it had concluded that respondent's homosexuality presented a security threat."Respondent then filed an action against petitioner in the United States District Court for the District of Columbia. Page 486 U. S. 596 Respondent's amended complaint asserted a variety of statutory and constitutional claims against the Director. [Footnote 2] Respondent alleged that the Director's decision to terminate his employment violated the Administrative Procedure Act (APA), 5 U.S.C. § 706, because it was arbitrary and capricious, represented an abuse of discretion, and was reached without observing the procedures required by law and CIA regulations. [Footnote 3] He also complained that the Director's termination of his employment deprived him of constitutionally protected rights to property, liberty, and privacy in violation of the First, Fourth, Fifth, and Ninth Amendments. Finally, he asserted that his dismissal transgressed the procedural due process and equal protection of the laws guaranteed by the Fifth Amendment. Respondent requested a declaratory judgment that the Director had violated the APA and the Constitution, and asked the District Court for an injunction ordering petitioner to reinstate him to the position he held with the CIA prior to his dismissal. As an alternative remedy, he suggested that he be returned to paid administrative leave and that petitioner be ordered to reevaluate respondent's employment termination and provide a statement Page 486 U. S. 597 of the reasons for any adverse final determination. Respondent sought no monetary damages in his amended complaint.Petitioner moved to dismiss respondent's amended complaint on the ground that § 102(c) of the National Security Act (NSA) precludes judicial review of the Director's termination decisions under the provisions of the APA set forth in 5 U.S.C. §§ 701, 702, and 706 (1982 ed., Supp. IV). Section 702 provides judicial review to any"person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute."The section further instructs that"[a]n action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party."The scope of judicial review under § 702, however, is circumscribed by § 706, see n 3, supra, and its availability at all is predicated on satisfying the requirements of § 701, which provide:"(a) This chapter applies, according to the provisions thereof, except to the extent that -- ""(1) statutes preclude judicial review; or""(2) agency action is committed to agency discretion by law."The District Court denied petitioner's motion to dismiss, and granted respondent's motion for partial summary judgment. The court determined that the APA provided judicial review of petitioner's termination decisions made under § 102(c) of the NSA, and found that respondent had been unlawfully discharged because the CIA had not followed the procedures described in its own regulations. The District Court declined, however, to address respondent's constitutional claims. Respondent was ordered reinstated to administrative Page 486 U. S. 598 leave status, and the Agency was instructed to reconsider his case using procedures that would supply him with the reasons supporting any termination decision and provide him with an opportunity to respond.A divided panel of the Court of Appeals for the District of Columbia Circuit vacated the District Court's judgment and remanded the case for further proceedings. The Court of Appeals first decided that judicial review under the APA of the Agency's decision to terminate respondent was not precluded by §§ 701(a)(1) or (a)(2). Turning to the merits, the Court of Appeals found that, while an agency must normally follow its own regulations, the CIA regulations cited by respondent do not limit the Director's discretion in making termination decisions. Moreover, the regulations themselves state that, with respect to terminations pursuant to § 102(c), the Director need not follow standard discharge procedures, but may direct that an employee "be separated immediately and without regard to any suggested procedural steps." [Footnote 4] The majority thus concluded that the CIA regulations provide no independent source of procedural or substantive protection.The Court of Appeals went on to hold that respondent must demonstrate that the Director's action was an arbitrary and capricious exercise of his power to discharge employees under § 102(c). [Footnote 5] Because the record below was unclear on certain points critical to respondent's claim for relief, the Court of Appeals remanded the case to District Court for a determination of the reason for the Director's termination of respondent. [Footnote 6] We granted certiorari to decide the question Page 486 U. S. 599 whether the Director's decision to discharge a CIA employee under § 102(c) of the NSA is judicially reviewable under the APA.IIThe APA's comprehensive provisions, set forth in 5 U.S.C. §§ 701-706 (1982 ed. and Supp. IV), allow any person "adversely affected or aggrieved" by agency action to obtain judicial review thereof, so long as the decision challenged represents a "final agency action for which there is no other adequate remedy in a court." Typically, a litigant will contest an action (or failure to act) by an agency on the ground that the agency has neglected to follow the statutory directives of Congress. Section 701(a), however, limits application of the entire APA to situations in which judicial review is not precluded by statute, see § 701(a)(1), and the agency action is not committed to agency discretion by law, see § 701(a)(2).In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971), this Court explained the distinction between §§ 701(a)(1) and (a)(2). Subsection (a)(1) is concerned with whether Congress expressed an intent to prohibit judicial review; subsection (a)(2) applies "in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply.'" 401 U.S. at 401 U. S. 410 (citing S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)).We further explained what it means for an action to be "committed to agency discretion by law" in Heckler v. Chaney, 470 U. S. 821 (1985). Heckler required the Court to determine whether the Food and Drug Administration's decision not to undertake an enforcement proceeding against the use of certain drugs in administering the death penalty was subject to judicial review. We noted that, under § 701(a) (2), even when Congress has not affirmatively precluded judicial Page 486 U. S. 600 oversight,"review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."470 U.S. at 470 U. S. 830. Since the statute conferring power on the Food and Drug Administration to prohibit the unlawful misbranding or misuse of drugs provided no substantive standards on which a court could base its review, we found that enforcement actions were committed to the complete discretion of the FDA to decide when and how they should be pursued.Both Overton Park and Heckler emphasized that § 701 (a)(2) requires careful examination of the statute on which the claim of agency illegality is based (the Federal-Aid Highway Act of 1968 in Overton Park and the Federal Food, Drug, and Cosmetic Act in Heckler). In the present case, respondent's claims against the CIA arise from the Director's asserted violation of § 102(c) of the NSA. As an initial matter, it should be noted that § 102(c) allows termination of an Agency employee whenever the Director "shall deem such termination necessary or advisable in the interests of the United States" (emphasis added), not simply when the dismissal is necessary or advisable to those interests. This standard fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review. Short of permitting cross-examination of the Director concerning his views of the Nation's security and whether the discharged employee was inimical to those interests, we see no basis on which a reviewing court could properly assess an Agency termination decision. The language of § 102(c) thus strongly suggests that its implementation was "committed to agency discretion by law."So too does the overall structure of the NSA. Passed shortly after the close of the Second World War, the NSA created the CIA and gave its Director the responsibility "for protecting intelligence sources and methods from unauthorized disclosure." See 50 U.S.C. § 403(d)(3); S.Rep. No. 239, 80th Cong., 1st Sess., 2 (1947); H.R.Rep. No. 961, Page 486 U. S. 601 80th Cong., 1st Sess., 3-4 (1947). Section 102(c) is an integral part of that statute, because the Agency's efficacy, and the Nation's security, depend in large measure on the reliability and trustworthiness of the Agency's employees. As we recognized in Snepp v. United States, 444 U. S. 507, 444 U. S. 510 (1980), employment with the CIA entails a high degree of trust that is perhaps unmatched in Government service.This overriding need for ensuring integrity in the Agency led us to uphold the Director's use of § 102(d)(3) of the NSA to withhold the identities of protected intelligence sources in CIA v. Sims, 471 U. S. 159 (1985). In denying respondent's Freedom of Information Act requests in Sims to produce certain CIA records, we stated that"[t]he plain meaning of the statutory language, as well as the legislative history of the National Security Act, . . . indicates that Congress vested in the Director of Central Intelligence very broad authority to protect all sources of intelligence information from disclosure."Id. at 471 U. S. 168-169. Section 102(c), that portion of the NSA under consideration in the present case, is part and parcel of the entire Act, and likewise exhibits the Act's extraordinary deference to the Director in his decision to terminate individual employees.We thus find that the language and structure of § 102(c) indicate that Congress meant to commit individual employee discharges to the Director's discretion, and that § 701(a)(2) accordingly precludes judicial review of these decisions under the APA. We reverse the Court of Appeals to the extent that it found such terminations reviewable by the courts.IIIIn addition to his claim that the Director failed to abide by the statutory dictates of § 102(c), respondent also alleged a number of constitutional violations in his amended complaint. Respondent charged that petitioner's termination of his employment deprived him of property and liberty interests under the Due Process Clause of the Fifth Amendment, Page 486 U. S. 602 denied him equal protection of the laws, and unjustifiably burdened his right to privacy. Respondent asserts that he is entitled, under the APA, to judicial consideration of these claimed violations. [Footnote 7]We share the confusion of the Court of Appeals as to the precise nature of respondent's constitutional claims. It is difficult, if not impossible, to ascertain from the amended complaint whether respondent contends that his termination, based on his homosexuality, is constitutionally impermissible, or whether he asserts that a more pervasive discrimination policy exists in the CIA's employment practices regarding all homosexuals. This ambiguity in the amended complaint is no doubt attributable in part to the inconsistent explanations respondent received from the Agency itself regarding his termination. Prior to his discharge, respondent had been told by two CIA security officers that his homosexual activities themselves violated CIA regulations. In contrast, the Deputy General Counsel of the CIA later informed respondent that homosexuality was merely a security concern that did not inevitably result in termination, but instead was evaluated on a case-by-case basis. Page 486 U. S. 603Petitioner maintains that, no matter what the nature of respondent's constitutional claim, judicial review is precluded by the language and intent of § 102(c). In petitioner's view, all Agency employment termination decisions, even those based on policies normally repugnant to the Constitution, are given over to the absolute discretion of the Director, and are hence unreviewable under the APA. We do not think § 102(c) may be read to exclude review of constitutional claims. We emphasized in Johnson v. Robison, 415 U. S. 361 (1974), that, where Congress intends to preclude judicial review of constitutional claims, its intent to do so must be clear. Id. at 415 U. S. 373-374. In Weinberger v. Salfi, 422 U. S. 749 (1975), we reaffirmed that view. We require this heightened showing in part to avoid the "serious constitutional question" that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim. See Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 476 U. S. 681, n. 12 (1986).Our review of § 102(c) convinces us that it cannot bear the preclusive weight petitioner would have it support. As detailed above, the section does commit employment termination decisions to the Director's discretion, and precludes challenges to these decisions based upon the statutory language of § 102(c). A discharged employee thus cannot complain that his termination was not "necessary or advisable in the interests of the United States," since that assessment is the Director's alone. Subsections (a)(1) and (a)(2) of § 701, however, remove from judicial review only those determinations specifically identified by Congress or "committed to agency discretion by law." Nothing in § 102(c) persuades us that Congress meant to preclude consideration of colorable constitutional claims arising out of the actions of the Director pursuant to that section; we believe that a constitutional claim based on an individual discharge may be reviewed by Page 486 U. S. 604 the District Court. [Footnote 8] We agree with the Court of Appeals that there must be further proceedings in the District Court on this issue.Petitioner complains that judicial review even of constitutional claims will entail extensive "rummaging around" in the Agency's affairs to the detriment of national security. See Tr. of Oral Arg. 8-13. But petitioner acknowledges that Title VII claims attacking the hiring and promotion policies of the Agency are routinely entertained in federal court, see Reply Brief for Petitioner 13-14; Tr. of Oral Arg. 9, and the inquiry and discovery associated with those proceedings would seem to involve some of the same sort of rummaging. Furthermore, the District Court has the latitude to control any discovery process which may be instituted so as to balance respondent's need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality and the protection of its methods, sources, and mission. See Kerr v. United States District Court, 426 U. S. 394, 426 U. S. 405 (1976); United States v. Reynolds, 345 U. S. 1 (1953).Petitioner also contends that, even if respondent has raised a colorable constitutional claim arising out of his discharge, Congress in the interest of national security may deny the courts the authority to decide the claim, and to order respondent's reinstatement if the claim is upheld. For the reasons previously stated, we do not think Congress meant to impose such restrictions when it enacted § 102(c) of the NSA. Even without such prohibitory legislation from Congress, of course, traditional equitable principles requiring the balancing of public and private interests control the grant of declaratory Page 486 U. S. 605 or injunctive relief in the federal courts. Weinberger v. Romero-Barcelo, 456 U. S. 305 (1982); Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 329-330 (1944). On remand, the District Court should thus address respondent's constitutional claims and the propriety of the equitable remedies sought.The judgment of the Court of Appeals is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtWebster v. Doe, 486 U.S. 592 (1988)Webster v. DoeNo. 86-1294Argued January 12, 1988Decided June 15, 1988486 U.S. 592SyllabusSection 102(c) of the National Security Act of 1947 (NSA) authorizes the Director of the Central Intelligence Agency (CIA), "in his discretion," to terminate the employment of any CIA employee "whenever he shall deem such termination necessary or advisable in the interests of the United States." After respondent, a covert electronics technician in the CIA's employ, voluntarily informed the agency that he was a homosexual, he was discharged by the Director (petitioner's predecessor) under § 102(c). Respondent filed suit against petitioner in Federal District Court for declaratory and injunctive relief, alleging violations of the Administrative Procedure Act (APA), of his rights to property, liberty, and privacy under the First, Fourth, Fifth, and Ninth Amendments, and of his rights to procedural due process and equal protection of the laws under the Fifth Amendment. After the court granted respondent's motion for partial summary judgment on his APA claim, declining to address his constitutional claims, the Court of Appeals vacated the judgment and remanded. The court agreed with the District Court that judicial review under the APA of petitioner's termination decisions made under § 102(c) of the NSA was not precluded by the provision of the APA, 5 U.S.C. § 701(a), which renders that Act inapplicable whenever "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." However, the court held that the District Court had erred in its ruling on the merits.Held:1. Title 5 U.S.C. § 701(a)(2) precludes judicial review under the APA of the CIA Director's termination decisions under § 102(c) of the NSA. Section 701(a)(2) applies where a statute is drawn in such broad terms that, in a given case, there is no law to apply, and the court would have no meaningful standard against which to judge the agency's exercise of discretion. In allowing termination whenever the Director "shall deem [it] necessary or advisable," and not simply when the dismissal is necessary or advisable, § 102(c) fairly exudes deference to the Director, and forecloses the application of any meaningful judicial standard of review for assessing a termination decision short of permitting cross-examination of the Director. That § 102(c)'s implementation was "committed to agency Page 486 U. S. 593 discretion by law" is also strongly suggested by the overall structure of the NSA, which vests in the Director very broad authority to protect intelligence sources and methods from unauthorized disclosure. Section 102(c) is an integral part of that structure, because the CIA's efficacy, and the Nation's security, depend in large measure on the reliability and trustworthiness of CIA employees. Pp. 486 U. S. 599-601.2. District Court review of respondent's constitutional claims is not precluded by § 102(c) of the NSA. Petitioner's view that all CIA employment termination decisions, even those based on policies normally repugnant to the Constitution, are given over to the Director's absolute discretion, is not supported by the required heightened showing of clear congressional intent. Although § 102(c) does commit termination decisions to the Director's discretion, 5 U.S.C. §§ 701(a)(1) and (a)(2) remove from judicial review only those determinations specifically identified by Congress or "committed to agency discretion by law." Nothing in § 102(c) demonstrates that Congress meant to preclude consideration of colorable constitutional claims arising out of the Director's actions pursuant to that section. Petitioner's contention that judicial review of constitutional claims will entail extensive "rummaging around" in the CIA's affairs to the detriment of national security is not persuasive, since claims attacking the CIA's employment policies under Title VII of the Civil Rights Act of 1964 are routinely entertained in federal court, and the District Court has the latitude to control any discovery process in order to balance respondent's need for access to proof against the CIA's extraordinary need for confidentiality. Petitioner's contention that Congress, in the interest of national security, may deny the courts authority to decide respondent's colorable constitutional claims arising out of his discharge and to order his reinstatement if the claims are upheld is also without merit, since Congress did not mean to impose such restrictions when it enacted § 102(c). Even without such prohibitory legislation, traditional equitable principles requiring the balancing of public and private interests control the grant of declaratory or injunctive relief, and, on remand, the District Court should thus address respondent's constitutional claims and the propriety of the equitable remedies sought. Pp. 486 U. S. 601-605.254 U.S.App.D.C. 282, 796 F.2d 1508, affirmed in part, reversed in part, and remanded.REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in Parts I and II of which O'CONNOR, J., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, post, p. 486 U. S. 605. SCALIA, Page 486 U. S. 594 J., filed a dissenting opinion, post, p. 486 U. S. 606. KENNEDY, J., took no part in the consideration or decision of the case.

1977_76-446

MR. JUSTICE WHITE delivered the opinion of the Court.Respondent Navarette, an inmate of Soledad Prison in California when the events revealed here occurred, filed his second amended complaint on January 19, 1974, charging six prison officials with various types of conduct allegedly violative of his constitutional rights and of 42 U.S.C. §§ 1983 and 1985. [Footnote 1] Three of the defendants were subordinate officials at Soledad; [Footnote 2] three were supervisory officials: the director of the Page 434 U. S. 557 State Department of Corrections and the warden and assistant warden of Soledad. The first three of nine claims for relief alleged wrongful interference with Navarette's outgoing mail. The first claim charged that the three subordinate officers, who were in charge of mail handling, had failed to mail various items of correspondence during the 15 months that respondent was incarcerated at Soledad, from September 1, 1971, to December 11, 1972. These items, described in 13 numbered paragraphs, included letters to legal assistance groups, law students, the news media, and inmates in other state prisons, as well as personal friends. Some of these items had been returned to Navarette, some the defendants had refused to send by registered mail as Navarette had requested, and, it was alleged, none of the items had ever reached the intended recipient. This "interference" or "confiscation" was asserted to have been in "knowing disregard" of the applicable statewide prisoner mail regulations [Footnote 3] and of Navarette's "constitutional rights," including his rights to free speech and due process as guaranteed by the First, Fifth, and Fourteenth Page 434 U. S. 558 Amendments to the United States Constitution. The three supervisory officers were alleged to have knowingly condoned this conduct and to have conspired with their subordinates for forbidden ends.The second claim for relief alleged wrongful failure to mail the same items of correspondence and asserted that the "interference or confiscation" had been conducted with "bad faith disregard" for Navarette's rights. The third claim posed the same failures to mail but claimed that the "interference" or "confiscation" had occurred because the three subordinate officers had "negligently and inadvertently" misapplied the prison mail regulations and because the supervisory officers had "negligent[ly]" failed to provide sufficient training and direction to their subordinates, all assertedly in violation of Navarette's constitutional rights.Petitioners moved for dismissal for failure to state a claim on which relief could be granted, or, alternatively, for summary judgment. Affidavits in support of the motion and counteraffidavits opposing it were also before the District Court. By order and without opinion, the court then granted summary judgment for petitioners on the first three claims and dismissed the remaining claims for failure to state a federal claim. [Footnote 4]The Court of Appeals reversed as to the first three claims. Navarette v. Enomoto, 536 F.2d 277 (CA9 1976). It held, first, that prisoners themselves are entitled to First and Fourteenth Amendment protection for their outgoing mail, and that Navarette's allegations were sufficient to encompass proof that would entitle him to relief in damages. Second, the court ruled Page 434 U. S. 559 that summary judgment on the first two claims was improper because there were issues of fact to be tried, particularly with respect to the claim that"a reasonable and good faith belief of a state official that his or her conduct is lawful, even where in fact it is not, constitutes a complete defense to a § 1983 claim for damages."Id. at 280. Third, the Court of Appeals held that Navarette's "allegations that state officers negligently deprived him of [his constitutional] rights state a § 1983 cause of action," and that summary judgment on the third purported claim was"improper because, as in the case of counts one and two, viewing the evidence in the light most favorable to Navarette, we are unable to say appellees are entitled to prevail as a matter of law."Id. at 282, and n. 6. [Footnote 5]We granted certiorari, 429 U.S. 1060, and the question before us is whether the Court of Appeals correctly reversed the District Court's judgment with respect to Navarette's third claim for relief alleging negligent interference with a claimed constitutional right. [Footnote 6] Page 434 U. S. 560In support of their motion for summary judgment, petitioners argued that on the record before the court they were immune from liability for damages under § 1983, and hence were entitled to judgment as a matter of law. The claim was not that they shared the absolute immunity accorded judges and prosecutors, but that they were entitled to the qualified immunity accorded those officials involved in Scheuer v. Rhodes, 416 U. S. 232 (1974), and Wood v. Strickland, 420 U. S. 308 (1975). The Court of Appeals appeared to agree that petitioners were entitled to the claimed degree of immunity, but held that they were nevertheless not entitled to summary judgment because, in the court's view, there were issues of fact to be resolved and because, when the facts were viewed most favorably to respondent, it could not be held that petitioners were entitled to judgment as a matter of law. Without disagreeing that petitioners enjoyed a qualified immunity from damages liability under § 1983, respondent defends Page 434 U. S. 561 the judgment of the Court of Appeals as a proper application of § 1983 and of the Court's cases construing it.Although the Court has recognized that, in enacting § 1983 Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending wholesale revocation of the common law immunity afforded government officials. Legislators, judges, and prosecutors have been held absolutely immune from liability for damages under § 1983. Tenney v. Brandhove, 341 U. S. 367 (191); Pierson v. Ray, 386 U. S. 547 (1967); Imbler v. Pachtman, 424 U. S. 409 (1976). Only a qualified immunity from damages is available to a state Governor, a president of a state university, and officers and members of a state National Guard. Scheuer v. Rhodes, supra. The same is true of local school board members, Wood v. Strickland, supra; of the superintendent of a state hospital, O'Connor v. Donaldson, 422 U. S. 563 (1975); and of policemen, Pierson v. Ray, supra; see Imbler v. Pachtman, supra at 424 U. S. 418-419.We agree with petitioners that, as prison officials and officers, they were not absolutely immune from liability in this § 1983 damages suit, and could rely only on the qualified immunity described in Scheuer v. Rhodes, supra, and Wood v. Strickland, supra. [Footnote 7] Scheuer declared:"[I]n varying scope, a qualified immunity is available to officer of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as Page 434 U. S. 562 they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct."416 U.S. at 416 U. S. 247-248. We further held in Wood v. Strickland that, "if the work of the schools is to go forward," there must be a degree of immunity so that"public school officials understand that action taken in the good faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished, and that they need not exercise their discretion with undue timidity."420 U.S. at 420 U. S. 321. This degree of immunity would be unavailable, however, if the official"knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student."Id. at 420 U. S. 322. The official cannot be expected to predict the future course of constitutional law, ibid.; Pierson v. Ray, supra at 386 U. S. 557, but he will not be shielded from liability if he acts "with such disregard of the [plaintiff's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." 420 U.S. at 420 U. S. 322.Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Petitioners claim that, in 1971 and 1972, when the conduct involved in this case took place, there was no established First Amendment right protecting the mailing Page 434 U. S. 563 privileges of state prisoners, and that, hence, there was no such federal right about which they should have known. We are in essential agreement with petitioners in this respect, and also agree that they were entitled to judgment as a matter of law.In ruling that petitioners' conduct had encroached on Navarette's First Amendment rights, the Court of Appeals relied on two of its own decisions, one in 1973 and the other in 1974, as well as upon Martinez v. Procunier, 354 F. Supp. 1092 (ND Cal.), a 1973 three-judge court opinion with which the Court of Appeals said it was in essential agreement. The court relied on no earlier opinions, and this Court, in affirming the judgment in Martinez v. Procunier, did so on the ground that the constitutional rights of the addressees of a prisoner's correspondence were involved when prison officials interfered with a prisoner's outgoing mail. Procunier v. Martinez, 416 U. S. 396 (1974). The question of the rights of the prisoner himself was left open. The Court referred to the "tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights" which has "led the federal courts to adopt a variety of widely inconsistent approaches to the problem" of constitutional challenges to censorship of prisoner mail and to the "absence of any generally accepted standard for testing the constitutionality of prison mail censorship regulations. . . ." Id. at 416 U. S. 406, 416 U. S. 407. Some Courts of Appeals were said to have maintained a "hands off posture", [Footnote 8] others to have extended various degrees of protection to prisoners' mail. [Footnote 9] The Court Page 434 U. S. 564 referred to no relevant pronouncements by courts in the Ninth Circuit other than the one then under review; and it is apparent that Procunier, the defendant in the Martinez suit and in this one, was then maintaining that there was no established constitutional right protecting prison mail under which his mail regulations could be challenged. [Footnote 10]Respondent relies on Hyland v. Procunier, 311 F. Supp. 749 (ND Cal.1970); Gilmore v. Lynch, 319 F. Supp. 105 (ND Cal.1970), aff'd sub nom. Younger v. Gilmore, 404 U. S. 15 (1971); Northern v. Nelson, 315 F. Supp. 687 (ND Cal.1970); Payne v. Whitmore, 325 F. Supp. 1191 (ND Cal.1971); and Brenneman v. Madigan, 343 F. Supp. 128 (ND (al.1972). But none of these cases deals with the rights of convicted prisoners in their mail, and none furnishes an adequate basis for claiming that, in 1971 and 1972, there was a "clearly established" constitutional right protecting Navarette's correspondence involved in this case. [Footnote 11] Page 434 U. S. 565Whether the state of the law is evaluated by reference to the opinions of this Court, of the Courts of Appeals, or of the local District Court, there was no "clearly established" First and Fourteenth Amendment right with respect to the correspondence of convicted prisoners in 1971-1972. [Footnote 12] As a matter of law, therefore, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct "cannot reasonably be characterized as being in good faith." Wood v. Strickland, 420 U.S. at 420 U. S. 322. [Footnote 13] Page 434 U. S. 566Neither should petitioners' immunity defense be overruled under the second branch of the Wood v. Strickland standard, which would authorize liability where the official has acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury." This part of the rule speaks of "intentional injury," contemplating that the actor intends the consequences of his conduct. See Restatement (Second) of Torts § 8A (1965). The third claim for relief with which we are concerned here, however, charges negligent conduct, which normally implies that, although the actor has subjected the plaintiff to unreasonable risk, he did not intend the harm or injury that in fact resulted. See id. at § 282 and Comment d. Claims 1 and 2 of the complaint alleged intentional and bad faith conduct in disregard of Navarette's constitutional rights; but claim 3, as the court below understood it and as the parties have treated it, was limited to negligence. The prison officers were charged with negligent and inadvertent interference with the mail, and the supervisory personnel with negligent failure to provide proper training. To the extent that a malicious intent to harm is a ground for denying immunity, that consideration is clearly not implicated by the negligence claim now before us. [Footnote 14]We accordingly conclude that the District Court was correct in entering summary judgment for petitioners on the third claim of relief, and that the Court of Appeals erred in holding otherwise. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtProcunier v. Navarette, 434 U.S. 555 (1978)Procunier v. NavaretteNo. 76-446Argued October 11, 1977Decided February 22, 1978434 U.S. 555SyllabusRespondent state prisoner brought an action pursuant to 42 U.S.C. § 1983 against petitioner prison officials, alleging, inter alia, negligent interference with respondent's outgoing mail in violation of his constitutional rights under the First and Fourteenth Amendments. The District Court granted summary judgment for petitioners on this claim on the basis of their asserted qualified immunity from liability for damages under § 1983. The Court of Appeals reversed, holding that prisoners are entitled to First and Fourteenth Amendment protection for their outgoing mail, that the claim in question stated a cause of action under § 1983, and that summary judgment for petitioners was improper because, viewing the evidence in the light most favorable to respondent, petitioners were not entitled to prevail as a matter of law.Held: The Court of Appeals erred in reversing the District Court's summary judgment for petitioners. Pp. 434 U. S. 560-566.(a) Petitioners, as state prison officials, were entitled to immunity unless they "knew or reasonably should have known" that the action they took with respect to respondent's mail would violate his federal constitutional rights, or they took the action with the "malicious intention" to cause a deprivation of constitutional rights or other injury to respondent.Wood v. Strickland, 420 U. S. 308, 420 U. S. 32. Pp. 434 U. S. 561-562.(b) There was no established First and Fourteenth Amendment right protecting state prisoners' mail privileges at the time in question, and therefore, as a matter of law, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right. Pp. 434 U. S. 562-565.(c) Neither should petitioners' immunity defense be overruled under the standard authorizing liability where the defendant state official has acted with "malicious intention" to deprive the plaintiff of a constitutional right or to cause him "other injury," since the claim in question charged negligent conduct, not intentional injury. P. 434 U. S. 566.536 F.2d 277, reversed. Page 434 U. S. 556WHITE, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C.J., post, p. 434 U. S. 566, and STEVENS, J., post, p. 434 U. S. 568, filed dissenting opinions.

1978_77-1387

MR. JUSTICE BLACKMUN delivered the opinion of the Court.The Federal Open Market Committee has a practice, authorized by regulation, 12 CFR § 271.5 (1978), [Footnote 1] of withholding Page 443 U. S. 343 certain monetary policy directives from the public during the month they are in effect. At the end of the month, the directives are published in full in the Federal Register. The United States Court of Appeals for the District of Columbia Circuit held that this practice violates the Freedom of Information Act, 5 U.S.C. § 552. 184 U.S.App.D.C. 203, 565 F.2d 778 (1977). We granted certiorari on the strength of the Committee's representations that this ruling could seriously interfere with the implementation of national monetary policy. 436 U.S. 917 (1978).IOpen market operations -- the purchase and sale of Government securities in the domestic securities market -- are the most important monetary policy instrument of the Federal Reserve System. [Footnote 2] When the Federal Reserve System buys securities in the open market, the payment is ordinarily credited in the reserve account of the seller's bank, increasing the total volume of bank reserves. When the Federal Reserve System sells securities on the open market, the sales price usually is debited in the reserve account of the buyer's bank, decreasing the total volume of reserves. Changes in the volume of bank reserves affect the ability of banks to make loans Page 443 U. S. 344 and investments. [Footnote 3] This, in turn, has a substantial impact on interest rates and investment activity in the economy as a whole.The Federal Open Market Committee (FOMC or Committee), petitioner herein, by statute has exclusive control over the open market operations of the entire Federal Reserve System. 12 U.S.C. 263(b). The FOMC [Footnote 4] is charged with conducting open market operations "with a view to accommodating commerce and business and with regard to their bearing upon the general credit situation of the country." § 263(c). To implement this authority, the Committee has established a combined investment pool for all Federal Reserve banks, known as the System Open Market Account. A senior officer of the Federal Reserve Bank of New York is regularly appointed Account Manager of the System Open Market Account.The FOMC meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. The Committee's principal conclusions are embodied in a statement called the Domestic Policy Directive. The Directive summarizes the economic and monetary background of the FOMC's deliberations and indicates in general terms whether the Committee wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead. The Committee also attempts to agree on specific tolerance ranges Page 443 U. S. 345 for the growth in the money supply and for the federal funds rate. [Footnote 5] The recent practice of the Committee has been to include these tolerance ranges in the Domestic Policy Directive. [Footnote 6] Page 443 U. S. 346The day-to-day operations of the Account Manager are guided by the Domestic Policy Directive and associated tolerance ranges, and by a daily conference call with the staff and at least one member of the FOMC. Subject to this oversight, the Manager has broad discretion in implementing the Committee's policy. In transacting business for the System Open Market Account, he deals with about 25 dealers who actively trade in United States Government and federal agency securities. Roughly half of these dealers are departments of large commercial banks; the others include large investment firms and smaller firms that specialize in Government securities. These dealers trade primarily for their own account. App. 33. The Federal Reserve Board is required by statute to keep a record of all policy actions taken by the FOMC with respect to open market operations. 12 U.S.C. § 247a. To comply with this requirement, the FOMC secretariat prepares a document during the month after each Committee meeting. This document is called the Record of Policy Actions. It contains a general review of economic and monetary conditions at the time of the meeting, the text of the Domestic Policy Directive, any other policy actions taken by the Committee, the votes on these actions, and the dissenting views, if any. A draft of the Record of Policy Actions is distributed to the participants at the next meeting of the Committee for their comments, and is revised and released for publication in the Federal Register a few days later. 41 Fed.Reg. 22261 (1976). In other words, the Record of Policy Actions is published in the Federal Register almost as soon as it is drafted and approved in final form by the Committee. [Footnote 7] The Domestic Page 443 U. S. 347 Policy Directive, however, exists as a document for approximately one month before it makes its first public appearance as part of the Record of Policy Actions. Moreover, by the time the Domestic Policy Directive is released as part of the Record of Policy Actions, it has been supplanted by a new Directive, and is no longer the current and effective policy of the FOMC.IIRespondent, when this action was instituted in May, 1975, was a law student at Georgetown University Law Center, Washington, D.C. App. 8. The complaint alleged that he had "developed a strong interest in administrative law and the operation of agencies of the federal government," and had formed a desire to study "the process by which the FOMC regulates the national money supply through the frequent adoption of domestic policy directives." Ibid.In pursuit of these professed academic interests, respondent in March, 1975, through counsel, filed a request under the Freedom of Information Act (FOIA) seeking the"[r]ecords of policy actions taken by the Federal Open Market Committee at its meetings in January, 1975, and February, 1975, including, but not limited to, instructions to the Manager of the Open Market Account and any other person relating to the purchase and sale of securities and foreign currencies."Id. at 13. [Footnote 8] Page 443 U. S. 348 The FOMC denied the request, explaining that the Records of Policy Actions, including the Domestic Policy Directive, were available only on a delayed basis under he policy set forth in 12 CFR § 271.5. [Footnote 9] An administrative appeal resulted in release of the requested documents, but only because the withholding period by then had expired. Governor Robert C. Holland of the Federal Reserve Board, on behalf of the Committee, wrote to respondent's counsel that the Committee remained firmly committed to what he described as "a legislative policy against premature disclosures which would impair the effectiveness of the operations of Government agencies." App. 21.Respondent then instituted this litigation in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. App. 7. The FOMC, in due course, moved for summary judgment and submitted affidavits from Committee members and staff that generally advanced two reasons why immediate disclosure of the Domestic Policy Directives and tolerance ranges would interfere with the FOMC's statutory functions.First, the Committee argued that immediate release of the Page 443 U. S. 349 Domestic Policy Directive and tolerance ranges would make it difficult to implement limited or gradual changes in monetary policy. Disclosure of the FOMC's monetary policy objectives would have an immediate "announcement effect," as market participants moved quickly to adjust their holdings of Government securities in anticipation of purchases or sales by the System Open Market Account. This would result in sudden price and interest rate movements, which might be considerably larger than the Committee contemplated and might be beyond the power of the FOMC or the Federal Reserve to control.Second, the FOMC contended that immediate disclosure of the Directive and tolerance ranges would permit large institutional investors, who would have the means to analyze the information quickly and act rapidly in buying or selling securities, to obtain an unfair advantage over small investors.Respondent submitted no counter-affidavits to these contentions, since he considered them "irrelevant" to the legal issues presented. Brief for Respondent 33-34, n. 12. The District Court apparently agreed. Without addressing the FOMC's affidavits, or entering any findings about the effect that premature disclosure might have on open market operations, the court granted summary judgment for respondent. 413 F. Supp. 494 (DC 1976). It held, as the FOMC had conceded that the Domestic Policy Directives were "statements of general policy . . . formulated and adopted by the agency" that, under 5 U.S.C. § 552(a)(1)(D), had to be "currently publish[ed] in the Federal Register for the guidance of the public." [Footnote 10] It further concluded that, by waiting until a new Page 443 U. S. 350 Directive had been promulgated before publishing the preceding one, the FOMC was in violation of the "current publication" requirement. 413 F. Supp. at 505. Finally, the court rejected the Committee's contentions that the Domestic Policy Directives could be withheld under either Exemption 2 of the FOIA, relating to internal personnel rules and practices of an agency, or Exemption 5, relating to inter-agency or intra-agency memorandums or letters which would not be available to a party other than an agency in litigation with an agency. [Footnote 11]On appeal to the United States Court of Appeals for the District of Columbia Circuit, the FOMC did not contest the ruling that the Domestic Policy Directives were "statements of general policy" that, under § 552(a)(1)(D), had to be "currently publish[ed]" in the Federal Register. Similarly, it did not challenge the conclusion that the 1-month delay failed to satisfy the current publication requirement. Moreover, the Committee abandoned the argument that the Directives were covered by Exemption 2. The Committee, instead, concentrated on the contention that premature disclosure would seriously disrupt the conduct of open market operations, and continued to urge that the policy of delayed disclosure was authorized by Exemption 5. Page 443 U. S. 351The Court of Appeals rejected the FOMC's Exemption 5 arguments. It held that the Domestic Policy Directives were not exempt from disclosure under the "executive" privilege attaching to predecisional communications. It also ruled that Exemption 5 was not designed to protect against premature disclosure of otherwise final decisions. Finally, it concluded that there was no other civil discovery privilege that could serve as a basis for holding that the Directives were exempt from disclosure under Exemption 5. Like the District Court, the Court of Appeals expressed no opinion about the FOMC's assertion that immediate disclosure of the Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy. If the assertion were true, the court suggested, Congress could specifically exempt this material from the prompt disclosure requirement of the FOIA. [Footnote 12] 184 U.S.App.D.C. 203, 565 F.2d 778 (1977).IIIThis Court has had frequent occasion to consider the FOIA, [Footnote 13] and it is not necessary to describe its history and background in detail. It suffices to say that the purpose of the FOIA is"to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated Page 443 U. S. 352 statutory language."S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). The Act makes available to any person all agency records, which it divides into three categories: some must be currently published in the Federal Register, 5 U.S.C. § 552(a)(1); others must be "promptly publish[ed]" or made publicly available and indexed, § 552(a)(2); and all others must be promptly furnished on request, § 552(a)(3). It then defines nine specific categories of records to which the Act "does not apply." § 552(b). The district court is given jurisdiction to enjoin an agency from withholding agency records, and to order the production of any agency records improperly withheld. 552(a)(4)(b). The burden in any such proceeding is on the agency to establish that the requested information is exempt. Ibid.At issue here is Exemption 5 of the FOIA, which provides that the affirmative disclosure provisions do not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." § 552(b)(5). Exemption 5, in other words, applies to documents that (a) are "inter-agency or intra-agency memorandums or letters," and (b) consist of material that "would not be available by law to a party . . . in litigation with the agency."AThere can be little doubt that the FOMC's Domestic Policy Directives constitute "inter-agency or intra-agency memorandums or letters." FOMC is clearly an "agency" as that term is defined in the Administrative Procedure Act. 5 U.S.C. §§ 551(1), 552(e). And the Domestic Policy Directives are essentially the FOMC's written instructions to the Account Manager, a subordinate official of the agency. These instructions, although possibly of interest to members of the public, are binding only upon the Account Manager. The Directives do not establish rules that govern the adjudication of individual Page 443 U. S. 353 rights, nor do they require particular conduct or forbearance by any member of the public. They are thus "intra-agency memorandums" within the meaning of Exemption 5.BWhether the Domestic Policy Directives "would not be available by law to a party . . . in litigation with the agency" presents a more difficult question. The House Report states that Exemption 5 was intended to allow an agency to withhold intra-agency memoranda which would not "routinely be disclosed to a private party through the discovery process in litigation with the agency. . . ." H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). EPA v. Mink, 410 U. S. 73, 410 U. S. 86-87 (1973) recognized that one class of intra-agency memoranda shielded by Exemption 5 is agency reports and working papers subject to the "executive" privilege for predecisional deliberations. NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975), confirmed this interpretation, and further held that Exemption 5 encompasses materials that constitute a privileged attorney's work product. Id. at 421 U. S. 154-155.The FOMC does not contend that the Domestic Policy Directives are protected by either the privilege for predecisional communications or the privilege for an attorney's work product. [Footnote 14] Its principal argument, instead, is that Exemption 5 confers general authority upon an agency to delay disclosure of intra-agency memoranda that would undermine the effectiveness of the agency's policy if released immediately. This general authority exists, according to the FOMC, even if the memoranda in question could be routinely discovered by a party in civil litigation with the agency.We must reject this analysis. First, since the FOMC does not indicate that the asserted authority to defer disclosure of Page 443 U. S. 354 intra-agency memoranda rests on a privilege enjoyed by the Government in the civil discovery context, its argument is fundamentally at odds with the plain language of the statute. EPA v. Mink, 410 U.S. at 410 U. S. 85-86; NLRB v. Sears, Roebuck & Co., 421 U.S. at 421 U. S. 149. In addition, the Committee's argument proves too much. Such an interpretation of Exemption 5 would appear to allow an agency to withhold any memoranda, even those that contain final opinions and statements of policy, whenever the agency concluded that disclosure would not promote the "efficiency" of its operations or otherwise would not be in the "public interest." This would leave little, if anything, to FOIA's requirement of prompt disclosure, and would run counter to Congress' repeated rejection of any interpretation of the FOIA which would allow an agency to withhold information on the basis of some vague "public interest" standard. H.R.Rep. No. 1497, supra at 5, 9; S.Rep. No. 813, supra at 3, 5, 8; EPA v. Mink, 410 U.S. at 410 U. S. 78-80.The FOMC argues, in the alternative, that there are several civil discovery privileges, in addition to the privileges for predecisional communications and an attorney's work product, that would allow a district court to delay discovery of documents such as the Domestic Policy Directives until they are no longer operative. The Committee contends that Exemption 5 incorporates each of these privileges, and that it thus shields the Directives from a requirement of immediate disclosure.Preliminarily, we note that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery. See NLRB v. Robbins Tire Rubber Co., 437 U. S. 214, 437 U. S. 254 n. 12 (1978) (POWELL, J., concurring in part and dissenting in part). There are, to be sure, statements in our cases construing Exemption 5 that imply as much. See, e.g., Renegotiation Board v. Grumman Aircraft Corp., 421 U. S. 168, 421 U. S. 184 (1975) ("Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and Page 443 U. S. 355 case law in the pretrial discovery context"). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S. at 421 U. S. 150-154, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption. [Footnote 15] Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly Exemptions 1, 4, 6, and 7. [Footnote 16] We hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another exemption. Given that Congress specifically recognized that certain discovery privileges were incorporated into Exemption 5, and dealt with other civil discovery privileges in exemptions other than Exemption 5, a claim that a privilege other than executive privilege or the attorney privilege is covered by Exemption 5 must be viewed with caution.The most plausible of the three privileges asserted by the FOMC [Footnote 17] is based on Fed.Rule Civ.Proc. 26(C)(7), which Page 443 U. S. 356 provides that a district court, "for good cause shown," may order"that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way. [Footnote 18]"The Committee argues that the Domestic Policy Directives constitute "confidential . . . commercial information," at least during the month in which they provide guidance to the Account Manager, and that they therefore would be privileged from civil discovery during this period.The federal courts have long recognized a qualified evidentiary privilege for trade secrets and other confidential commercial information. See, e.g., E. I du Pont de Nemours Powder Co. v. Masland, 244 U. S. 100, 244 U. S. 103 (1917); 8 J. Wigmore, Evidence § 2212, pp. 156-157 (McNaughton rev.1961). The Federal Rules of Civil Procedure provide similar qualified protection for trade secrets and confidential commercial information in the civil discovery context. Federal Rule Civ.Proc. 26(c)(7), which replaced former Rule 30(b) in 1970, was intended in this respect to "reflec[t] existing law." Advisory Committee's Notes on Fed.Rule Civ. Proc. 26, 28 U.S.C.App. p. 444. The Federal Rules, of course, are fully applicable to the United States as a party. See, e.g., United States v. Procter & Gamble Co., 356 U. S. 677, 356 U. S. 681 (1958); 4 J. Moore, Federal Practice � 26.61[2], p. 26-263, (1976). And Page 443 U. S. 357 we see no reason why the Government could not, in an appropriate case, obtain a protective order under Rule 26(c)(7). [Footnote 19]To be sure, the House and Senate Reports do not provide the same unequivocal support for an Exemption 5 privilege for "confidential . . . commercial information" as they do for the executive and attorney work product privileges. Nevertheless, we think that the House Report, when read in conjunction with the hearings conducted by the relevant House and Senate Committees, can fairly be read as authorizing at least a limited form of Exemption 5 protection for "confidential . . . commercial information."In hearings that preceded the enactment of the FOIA, various agencies complained that the original Senate bill, which did not include the present Exemption 5, [Footnote 20] failed to Page 443 U. S. 358 provide sufficient protection for confidential commercial information and other information about Government business transactions. For example, the Department of Defense expressed concern that information relating to the purchase or sale of real estate, materials, or other property might not be protected, Hearings on S. 1160, etc., before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 418 (1965); the General Services Administration stressed the need to avoid early disclosure of information that might prejudice the ,Government's bargaining position in business transactions, id. at 480; and the Post Office Department urged that, in matters such as the negotiation of contracts, it should stand on the same footing as a private party. Hearings on H.R. 5012, etc., before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 224 (1965). Included among those expressing such criticism was the Acting General Counsel of the Department of the Treasury, who specifically referred to the Department's concern about premature disclosure of information concerning Federal Reserve open market operations. Id. at 49. [Footnote 21] Page 443 U. S. 359After the hearings were completed, Congress amended the provision that ultimately became Exemption 5 to provide for nondisclosure of materials that "would not be available by law to a party . . . in litigation with the agency." The House Report echoing the Report on the original Senate bill, S.Rep. No. 1219, 88th Cong., 2d Sess., 7, 114 (1964), explained that one purpose of the revised Exemption 5 was to protect internal agency deliberations, and thereby ensure "full and frank exchange of opinions" within an agency. H.R. Rep. No. 1497, supra, n 15, at 10. It then added, significantly:"Moreover, a Government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation. This clause is intended to exempt from disclosure this and other information and records wherever necessary without, at the same time, permitting indiscriminate administrative secrecy. Ibid."In light of the complaints registered by the agencies about premature disclosure of information relating to Government contracts, we think it is reasonable to infer that the House Report in referring to "information . . . generated [in] the process of awarding a contract," specifically contemplated a limited privilege for confidential commercial information pertaining to such contracts. [Footnote 22]This conclusion is reinforced by consideration of the differences between commercial information generated in the process of awarding a contract, and the type of material protected by executive privilege. The purpose of the privilege for predecisional deliberations is to insure that a decisionmaker Page 443 U. S. 360 will receive the unimpeded advice of his associates. The theory is that, if advice is revealed, associates may be reluctant to be candid and frank. It follows that documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been effected, since disclosure at any time could inhibit the free flow of advice, including analysis, reports, and expression of opinion within the agency. The theory behind a privilege for confidential commercial information generated in the process of awarding a contract, however, is not that the flow of advice may be hampered, but that the Government will be placed at a competitive disadvantage or that the consummation of the contract may be endangered. Consequently, the rationale for protecting such information expires as soon as the contract is awarded or the offer withdrawn.We are further convinced that recognition of an Exemption 5 privilege for confidential commercial information generated in the process of awarding a contract would not substantially duplicate any other FOIA exemption. The closest possibility is Exemption 4, which applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Exemption 4, however, is limited to information "obtained from a person," that is, to information obtained outside the Government. See 5 U.S.C. § 551(2). The privilege for confidential information about Government contracts recognized by the House Report in contrast, is necessarily confined to information generated by the Federal Government itself.We accordingly conclude that Exemption 5 incorporates a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract. [Footnote 23] Page 443 U. S. 361CThe only remaining questions are whether the Domestic Policy Directives constitute confidential commercial information of the sort given qualified protection by Exemption 5, and, if so, whether they would, in fact, be privileged in civil discovery. Although the analogy is not exact, we think that the Domestic Policy Directives and associated tolerance ranges are substantially similar to confidential commercial information generated in the process of awarding a contract. During the month that the Directives provide guidance to the Account Manager, they are surely confidential, and the information is commercial in nature because it relates to the buying and selling of securities on the open market. Moreover, the Directive and associated tolerance ranges are generated in the course of providing ongoing direction to the Account Page 443 U. S. 362 Manager in the execution of large-scale transactions in Government securities; they are, in this sense, the Government's buy-sell order to its broker.Although the Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they are protected against immediate disclosure in the civil discovery process. As with most evidentiary and discovery privileges recognized by law, "there is no absolute privilege for trade secrets and similar confidential information." 8 C. Wright & A. Miller, Federal Practice and Procedure 2043, p. 300 (1970); 4 J. Moore, Federal Practice � 26.60[4], p. 26-242 (1970). Cf. United States v. Nixon, 418 U. S. 683, 418 U. S. 705-707 (1974)."The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure. Frequently, they have been afforded a limited protection."Advisory Committee's Notes on Fed.Rule Civ.Proc. 26, 28 U.S.C.App. p. 444; 4 J. Moore, Federal Practice � 26.76, pp. 26-540 to 26-543 (1970). [Footnote 24] We are mindful that "the discovery rules can only be applied under Exemption 5 by way of rough analogies," EPA v. Mink, 410 U.S. at 410 U. S. 86, and, in particular, that the individual FOIA applicant's Page 443 U. S. 363 need for information is not to be taken into account in determining whether materials are exempt under Exemption 5. Ibid.; NLRB v. Sears, Roebuck & Co., 421 U.S. at 421 U. S. 149 n. 16. Nevertheless, the sensitivity of the commercial secrets involved, and the harm that would be inflicted upon the Government by premature disclosure, should continue to serve as relevant criteria in determining the applicability of this Exemption 5 privilege. Accordingly, we think that, if the Domestic Policy Directives contain sensitive information not otherwise available, and if immediate release of these Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5.Here, the District Court made no findings about the impact of immediate disclosure of the Domestic Policy Directives and tolerance ranges. The Committee submitted unanswered affidavits purporting to show that prompt disclosure of this information would interfere with the orderly execution of the FOMC's monetary policies, and would give unfair advantage to large investors. In this Court, the FOMC has sought to supplement those affidavits by arguing, for the first time, that immediate release of the Domestic Policy Directives would jeopardize the Government's commercial interests by imposing substantial additional borrowing costs on the United States Treasury. [Footnote 25] Respondent has sought, again for the first Page 443 U. S. 364 time, to show that there is substantial disagreement among experts about the impact of prompt disclosure of the Directives, and that some experts actually believe prompt disclosure would have a beneficial effect. Brief for Respondent 33-46.Under the circumstances, we do not consider whether, or to what extent, the Domestic Policy Directives would, in fact, be afforded protection in civil discovery. That determination must await the development of a proper record. If the District Court on remand concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Domestic Policy Directives [Footnote 26] can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U.S. at 410 U. S. 91.The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtFederal Open Market Comm. v. Merrill, 443 U.S. 340 (1979)Federal Open Market Committee of theFederal Reserve System v. MerrillNo. 77-1387Argued December 6. 1978Decided June 2, 1979443 U.S. 340SyllabusThis case presents the question whether the Freedom of Information Act (FOIA) is violated by petitioner's practice, authorized by regulation, 12 CFR § 271.5 (1978), of withholding certain monetary policy directives from the public during the month they are in effect, such directives being published in full in the Federal Register at the end of the month. To implement its authority to conduct open market operations of the Federal Reserve System, petitioner has established a combined investment pool for all Federal Reserve banks, administered by the Account Manager. Petitioner meets approximately once a month to review the overall state of the economy and consider the appropriate course of monetary and open market policy. Its principal conclusions are embodied in a "Domestic Policy Directive," which indicates in general terms whether petitioner wishes to follow an expansionary, deflationary, or unchanged monetary policy in the period ahead, and which includes specific tolerance ranges for the growth in the money supply and for the federal funds rate. The Account Manager is guided by the Domestic Policy Directive in his transactions with dealers who trade in Government securities. A Domestic Policy Directive exists as a document for approximately one month before it appears in the Federal Register, by which time it has been supplanted by a new Directive. Respondent, who had been denied immediate access under the FOIA to certain records of petitioner's policy actions, instituted suit for declaratory and injunctive relief against the operation of 12 CFR § 271.5 and the policy of delayed disclosure. Without expressly considering petitioner's contention that immediate disclosure of Domestic Policy Directives and tolerance ranges would interfere with the conduct of national monetary policy, the District Court entered judgment for respondent, holding, inter alia, that the Directives were "statements of general policy" which, under the FOIA, had to be "currently" published in the Federal Register; that the 1-month delay failed to satisfy the current publication requirement.; and that the Directives could not be withheld under Exemption 5 of the FOIA, which applies to documents that are"inter-agency or intra-agency memorandums or letters which would not be Page 443 U. S. 341 available by law to a party . . . in litigation with the agency."The Court of Appeals affirmed, also expressing no opinion about petitioner's assertion that immediate disclosure of Domestic Policy Directives and tolerance ranges would seriously interfere with the conduct of national monetary policy.Held:1. Petitioner's Domestic Policy Directives are "intra-agency memorandums" within the meaning of Exemption 5 of the FOIA. Petitioner is clearly an "agency" as that term is defined in the Administrative Procedure Act, and the Directives are essentially petitioner's written instructions to the Account Manager, a subordinate official of the agency. The instructions are binding only upon the Account Manager, and neither establish rules that govern the adjudication of individual rights nor require particular conduct or forbearance by any member of the public. Pp. 443 U. S. 352-353.2. Although Exemption 5 does not confer general authority upon an agency, without regard to any privilege enjoyed by the Government in the civil discovery context, to delay disclosure of intra-agency memorandums that would undermine the effectiveness of the agency's policy if released immediately, nevertheless Exemption 5 does incorporate a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract. See Fed.Rule Civ.Proc. 26(c) (7). Pp. 443 U. S. 353-360.3. Although petitioner's Domestic Policy Directives can fairly be described as containing confidential commercial information generated in the process of awarding a contract, it does not necessarily follow that they would be protected against immediate disclosure in the civil discovery process. If the Directives contain sensitive information not otherwise available, and if immediate release of the Directives would significantly harm the Government's monetary functions or commercial interests, then a slight delay in the publication of the Directives, such as that authorized by 12 CFR § 271.5, would be permitted under Exemption 5. Determination of whether, or to what extent, the Directives would in fact be afforded protection in civil discovery must await the development of a proper record on remand. If the District Court concludes that the Directives would be afforded protection, then it should also consider whether the operative portions of the Directives can feasibly be segregated from the purely descriptive materials therein, and the latter made subject to disclosure or publication without delay. See EPA v. Mink, 410 U. S. 73, 410 U. S. 91. Pp. 443 U. S. 361-364.184 U.S.App.D.C. 203, 565 F.2d 778, vacated and remanded. Page 443 U. S. 342BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which STEWART, J., joined in part, post, p. 443 U. S. 364.

1984_83-1153

JUSTICE STEVENS delivered the opinion of the Court.This is a controversy between a publisher, Mills Music, Inc. (Mills), and the heirs of an author, Ted Snyder (Snyder), over the division of royalty income that the sound recordings Page 469 U. S. 155 of the copyrighted song "Who's Sorry Now" (the Song) have generated. The controversy is a direct outgrowth of the general revision of copyright law that Congress enacted in 1976. [Footnote 1] The 1976 Act gave Snyder's heirs a statutory right to reacquire the copyright [Footnote 2] that Snyder had previously granted to Mills; however, it also provided that a"derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination. [Footnote 3]"The sound recordings of the Song, which have generated the royalty income in dispute, are derivative works of that kind. [Footnote 4] Thus, the dispute raises the question Page 469 U. S. 156 whether an author's termination of a publisher's interest in a copyright also terminates the publisher's contractual right to share in the royalties on such derivative works.The key that will unlock this statutory puzzle is an understanding of the phrase "under the terms of the grant" as it is used in § 304(c)(6)(A) -- the so-called "derivative works exception" (the Exception) to the "termination of transfer and licenses" provisions found in § 304(c). [Footnote 5] Before focusing on the meaning of the key phrase, we shall describe the chain of title to the copyright, the circumstances surrounding Congress' adoption of the 1976 Act, and how the pertinent provisions of the 1976 Act affected the relationship among the interested parties in 1978 when Snyder's heirs terminated the grant to Mills. We begin with the early factual history.ISnyder was one of three persons who collaborated in creating "Who's Sorry Now." [Footnote 6] Although Snyder actually held only a one-third interest in the Song, the parties agree that we should treat the case as if Snyder were the sole author. The original copyright on the Song was registered in 1923 in the name of Waterson, Berlin & Snyder Co., a publishing company that Snyder partly owned. [Footnote 7] That company Page 469 U. S. 157 went into bankruptcy in 1929, and in 1932 the trustee in bankruptcy assigned the copyright to Mills. [Footnote 8]Under the Copyright Act of 1909, 35 Stat. 1075, the copyright in a musical composition lasted for 28 years from the date of its first publication, and the author could renew the copyright for an additional term of 28 years. [Footnote 9] Although Mills had acquired ownership of the original copyright from the trustee in bankruptcy, it needed the cooperation of Snyder in order to acquire an interest in the 28-year renewal term. Accordingly, in 1940 Mills and Snyder entered into a written agreement defining their respective rights in the renewal of the copyright. In essence, Snyder assigned his entire interest in all renewals of the copyright to Mills in exchange for an advance royalty and Mills' commitment to pay a cash royalty on sheet music and 50 percent of all net royalties that Mills received for mechanical reproductions. [Footnote 10] Page 469 U. S. 158Mills obtained and registered the renewal copyright in 1951. After filing the required statutory notice, [Footnote 11] Mills directly, or through the Harry Fox Agency, Inc., issued over 400 licenses to record companies authorizing the use of the Song in specific reproductions on phonograph records. Using a variety of different artists and different musical arrangements, these record companies prepared separate "derivative works," each of which was independently copyrightable. [Footnote 12] Because each of these derivative works was a mechanical reproduction of the Song that was prepared pursuant to a license that Mills had issued, the record companies were contractually obligated to pay royalties to Mills, and Mills, in turn, was contractually obligated to pay 50 percent of those royalties to Snyder. [Footnote 13] Fox acted as an agent for Mills, performing the service of collecting royalties from the licensed record companies and, after deducting its charges, remitting the net receipts to Mills, which in turn remitted 50 percent of that income to Snyder. After Snyder's death, his Page 469 U. S. 159 widow and his son succeeded to his interest in the arrangement with Mills.IIThe massive work necessary for the general revision of the copyright law began in 1955, perhaps stimulated in part by this country's help in the development of, and subsequent membership in, the Universal Copyright Convention. [Footnote 14] In that year, Congress approved several appropriations for the Copyright Office. The Copyright Office then began building the foundation for the general revision by authorizing a series of 34 studies on major issues of copyright law; these studies were published and included in the legislative history. [Footnote 15] After issuing a report in 1961, the Copyright Office conducted numerous meetings with representatives of the many parties that the copyright law affected. [Footnote 16] In 1963, the Copyright Office issued a preliminary draft revision bill, which contained the essence of the Exception before the Court today. [Footnote 17] Additional discussions with interested parties Page 469 U. S. 160 followed. [Footnote 18] Two additional draft revision bills supervened, both containing the Exception. [Footnote 19] Interested parties submitted commentary following the 1964 draft revision bill. [Footnote 20]Congress began its lengthy hearings after the Copyright Office submitted the 1965 draft revision bill. [Footnote 21] The hearings on the 1965 bill occupied over three weeks during a 3-month period and involved well over 100 witnesses. Moreover, the Copyright Office prepared a supplementary report to accompany the 1965 draft revision bill. [Footnote 22] Although additional hearings were held in subsequent sessions, [Footnote 23] and revision bills were submitted to Congress in each term for the next 10 years, [Footnote 24] discussion over the termination provisions, and the Exception, was essentially completed at this time. Congress enacted the termination provisions and the Exception Page 469 U. S. 161 in the 1976 Act in virtually the same form as they appeared in the 1965 draft revision bill. [Footnote 25]IIISection 304 of the 1976 Act significantly affected the rights of Mills and the Snyders in three ways. First, § 304(b) provided an automatic extension of the life of the copyright; instead of expiring in 1980 at the end of the second renewal period, the copyright on the Song will endure until 1999. [Footnote 26]Second, § 304(c) gave the widow and surviving son of Snyder a right to terminate the grant to Mills of rights in the renewal copyright. [Footnote 27] That termination could be effected at Page 469 U. S. 162 any time during the 5-year period after January 1, 1978, by serving a written notice on Mills and recording a copy in the Copyright Office before it became effective.Third, § 304(c)(6) provided that the termination would cause all rights "covered by the terminated grant" to revert to Snyder's widow and son. That reversion was, however, subject to an exception that permitted a previously prepared derivative work to continue to be utilized after the termination "under the terms of the grant." [Footnote 28]IVOn January 3, 1978, the Snyders delivered a written notice of termination to Mills. The notice complied with § 304(c); it identified the Song and stated that the termination applied to the "[g]rant or transfer of copyright and the rights of copyright proprietor, including publication and recording rights." Additionally, the notice stated that it would become effective on January 3, 1980. [Footnote 29] On August 11, 1980, the Snyders advised Fox that Mills' interest in the copyright had been terminated and demanded that the royalties on the derivative works be remitted to them. Fox placed the disputed funds in escrow and initiated an interpleader action in the United States District Court for the Southern District of New York. Mills and the Snyders appeared therein, agreed on the relevant facts, and filed cross-motions for summary judgment. The District Court entered judgment for Mills. Harry Fox Agency, Inc. v. Mills Music, Inc., 543 F. Supp. 844 (1982).In an exhaustive opinion, the District Court first held that the record companies' derivative works had been "prepared under authority of the grant" from Snyder to Mills. The Page 469 U. S. 163 court then noted that the statute did not make "any distinction between grantees who themselves make or own derivative works and those who license others to do so." Id. at 854. Accordingly, the court concluded that the terms of the various contracts that had been in effect prior to the termination governed the record companies' obligation to pay royalties and that under those arrangements Mills and the Snyders were each entitled to a 50 percent share in the net royalties. Id. at 867-869.Relying on three "propositions," the Court of Appeals for the Second Circuit reversed. Harry Fox Agency, Inc. v. Mills Music, Inc., 720 F.2d 733 (1983). First, it reasoned that Mills was relying on two separate grants -- the 1940 grant from Snyder to Mills and the later grants by Mills to the record companies -- but that the Exception preserved only the second set of grants. Because the Snyders' termination caused the ownership of the underlying copyright to revert to them, the court viewed that reversion as carrying with it Mills' right to collect the royalties payable under the grants to the record companies. Id. at 738-740. Second, the court determined that § 304 was enacted for the benefit of authors and that the Exception was designed to protect "utilizers" of derivative works; because Mills as a publisher was neither an author nor a "utilizer," it was not a member of either class that § 304 was intended to benefit. Id. at 739-740. Third, the Court of Appeals read the legislative history as indicating that Congress had not contemplated a situation in which the authority to prepare derivative works was derived from two successive grants rather than a single grant directly from an author to a "utilizer." Id. at 740-741. The court felt that, if Congress had confronted this situation, it would not have wanted "publishers and other noncreative middlemen to share in original derivative works royalties after termination." Id. at 743.Having granted Mills' petition for a writ of certiorari in order to resolve this important question of copyright law, 466 U.S. 903 (1984), we now reverse. We are not persuaded Page 469 U. S. 164 that Congress intended to draw a distinction between authorizations to prepare derivative works that are based on a single direct grant and those that are based on successive grants. Rather, we believe the consequences of a termination that § 304 authorizes simply do not apply to derivative works that are protected by the Exception defined in § 304 (c)(6)(A). The boundaries of that Exception are defined by reference to the scope of the privilege that had been authorized under the terminated grant and by reference to the time the derivative works were prepared. The derivative works involved in this case are unquestionably within those boundaries.VIn construing a federal statute it is appropriate to assume that the ordinary meaning of the language that Congress employed "accurately expresses the legislative purpose." [Footnote 30] We therefore start with an examination of the statutory text.The critical subparagraph -- §304 (c)(6)(A) -- carves out an exception from the reversion of rights that takes place when an author exercises his right to termination. A single sentence that uses the word "grant" three times defines the scope of the Exception. It states:"A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant."17 U.S.C. § 304(c)(6)(A) (emphasis supplied).The third reference is to "the terminated grant" which, in this case, must refer to Snyder's grant to Mills in 1940. It is logical to assume that the same word has the same meaning Page 469 U. S. 165 when it is twice used earlier in the same sentence. [Footnote 31] The reference to a derivative work at the beginning of the Exception is to one that was prepared "under authority of the grant." Again, because Mills, or Fox as its agent, authorized the preparation of each of the 400-odd sound recordings while Mills was the owner of the copyright, each of those derivative works was unquestionably prepared "under authority of the grant." The 1940 grant from Snyder to Mills expressly gave Mills the authority to license others to make derivative works. [Footnote 32] Thus, whether the phrase "under authority of the grant" is read to encompass both the original grant to Mills and the subsequent licenses that Mills issued, or only the original grant, it is inescapable that the word "grant" must refer to the 1940 grant from Snyder to Mills. [Footnote 33]The second use of the word "grant" is in the critical phrase that allows the record companies to continue to utilize previously prepared derivative works "under the terms of the grant after its termination." To give the word a consistent meaning, we must again read it to encompass the original grant from Snyder to Mills, even though it is evident that the Page 469 U. S. 166 relevant terms of the grant for a particular licensee must also include the specific terms of its license.Although a consistent reading of the word "grant" in the text of § 304(c)(6)(A) encompasses the 1940 grant from Snyder to Mills, the Court of Appeals concluded that the Exception preserved nothing more than the grants from Mills to the record companies. As we have briefly noted earlier, the Court of Appeals rested its conclusion on three separate propositions, each of which merits discussion.The Two Separate GrantsThe Court of Appeals based its conclusion that Mills could not prevail largely on its view that the grant from Snyder to Mills was entirely separate from subsequent "grants" by Mills to the record companies. It reasoned:"Since the only grants which have terms that define the circumstances under which derivative works are to be prepared and utilized are the Mills-record company grants, it is the terms of those grants that the Exception preserves, not the grant from the Snyders giving Mills 50% of the mechanical royalties."720 F.2d at 739.It is undisputed that the 1940 grant did not itself specify the terms that would apply to the use of any particular derivative work. The licenses that Mills, or its agent Fox, executed contain those terms. But if the underlying grant from Snyder to Mills in 1940 had not authorized those separate licenses, they would have been nullities. Moreover, if the licenses are examined separately from that earlier grant, they merely require that royalty payments be made to Mills or to Fox as the collection agent for Mills. [Footnote 34] In terms, they do not provide for any payments at all to the Snyders. The source of the Snyders' entitlement to a 50 percent share in the royalty income is the 1940 grant. Thus, a fair construction of Page 469 U. S. 167 the phrase "under the terms of the grant" as applied to any particular licensee would necessarily encompass both the 1940 grant and the individual license executed pursuant thereto.If the scope of the entire set of documents that created and defined each licensee's right to prepare and distribute derivative works is used to define the relevant "terms of the grant" for purposes of the Exception, those terms include Mills' right to obtain 100 percent of the net royalty income in the first instance and Mills' obligation thereafter to remit 50 percent of those revenues to the Snyders. If, as the Court of Appeals held, the Exception limits the relevant "terms of the grant" to those appearing in the individual licenses, two rather glaring incongruities would result. First, the word "grant" would have inconsistent meanings in the same sentence, and in fact, within the entirety of both § 304(c) and the remainder of § 304. Second, and of greater importance, there would be neither a contractual nor a statutory basis for paying any part of the derivative-works royalties to the Snyders. [Footnote 35]The licenses issued to the record companies are the source of their contractual obligation to pay royalties; viewed apart from the 1940 grant, those licenses confer no rights on the Snyders. Moreover, although the termination has caused the ownership of the copyright to revert to the Snyders, nothing in the statute gives them any right to acquire any contractual rights that the Exception preserves. The Snyders' status as owner of the copyright gives them no right to collect royalties by virtue of the Exception from users of previously authorized derivative works. Stating the same point Page 469 U. S. 168 from the perspective of the licensees, it is clear that they have no direct contractual obligation to the new owner of the copyright. The licensees are merely contractually obligated to make payments of royalties under terms upon which they have agreed. The statutory transfer of ownership of the copyright cannot fairly be regarded as a statutory assignment of contractual rights. [Footnote 36]The "Utilizer" of a Derivative WorkThe second of the Court of Appeals' propositions stated that Mills is not the "utilizer" of a derivative work because "[a]ll that Mills did was to utilize the underlying copyright when it owned it by licensing others to create and utilize Page 469 U. S. 169 derivative works." 720 F.2d at 739. Building on its erroneous first proposition, the court determined:"The language of the Exception supports such a conclusion. The Exception provides that the derivative work must be prepared under the authority of the grant, excluding, therefore, unauthorized derivative works. It is only grants from Mills to the record companies which authorize the preparation and creation of the derivative works here involved. The Exception, then, protects creators who utilize derivative works prepared under the authority of the grant authorizing the creation of such derivative works."Ibid. Although not expressly adopting the Court of Appeals' first proposition regarding "two grants," respondents expand on the court's second proposition, urging that the Exception protects only the utilization of derivative works after the underlying copyright has reverted to the author. Brief for Respondents 3-8.The protection provided to those who utilize previously prepared derivative works is not, however, unlimited. The word "utilized" as written in the Exception cannot be separated from its context and read in isolation. It is expressly confined by "the terms of the grant." The contractual obligation to pay royalties survives the termination and identifies the parties to whom the payment must be made. If the Exception is narrowly read to exclude Mills from its coverage, thus protecting only the class of "utilizers" as the Snyders wish, the crucial link between the record companies and the Snyders will be missing, and the record companies will have no contractual obligation to pay royalties to the Snyders. If the statute is read to preserve the total contractual relationship, which entitled Mills to make duly authorized derivative works, the record companies continue to be bound by the terms of their licenses, including any terms requiring them to continue to pay royalties to Mills. Page 469 U. S. 170Legislative HistoryThe Court of Appeals' third, and last, proposition stated that"Congress did not specifically address the situation where the grantee from the author has himself subleased or subgranted or licensed use of the copyright."720 F.2d at 740. It considered the statutory text ambiguous because the statute "speaks in terms of one grant, while . . . we are dealing with two distinct grants." Id. at 740, n. 12. Because the Court of Appeals' review of the legislative history did not disclose any specific consideration of the problem that this case presents, it further concluded that Congress had simply overlooked the possibility that a licensee's authority to prepare derivative works might depend on two separate grants. The Court of Appeals, therefore, predicated its construction of the Exception largely on its evaluation of the legislative purpose: to "protect owners of derivative works like film producers who own derivative copyrights in books or plays." Id. at 741.Unlike the Court of Appeals, we are persuaded that Congress was well aware of the prevalence of multiparty licensing arrangements in the music-publishing industry, as well as in other industries that the copyright law vitally affected, when it enacted the 1976 Act. There are many references in the legislative history to multiparty arrangements in the music industry, and to the importance of the role of music publishers in the marketing of copyrighted songs. These references dissipate the force of the argument that Congress did not expressly consider the precise multiparty dispute before the Court today. [Footnote 37] Indeed, there is reason to believe Page 469 U. S. 171 that the 50 percent arrangement between Snyder and Mills that was made in 1940 was a typical example of the form of copyright grant that had been prevalent in this industry for Page 469 U. S. 172 many years. [Footnote 38] Rather than assuming that Congress was unaware of a common practice in one of the industries that the general revision of the copyright law, and the termination provisions, most significantly affected, we think it more probable that Congress saw no reason to draw a distinction between a direct grant by an author to a party that produces derivative works itself and a situation in which a middleman is given authority to make subsequent grants to such producers. For whether the problem is analyzed from the author's point of view or that of the producer of derivative works, the statutory purposes are equally well served in either case.The principal purpose of the amendments in § 304 was to provide added benefits to authors. The extension of the duration of existing copyrights to 75 years, the provision of a longer term (the author's life plus 50 years) for new copyrights, and the concept of a termination right itself, were all obviously intended to make the rewards for the creativity of authors more substantial. More particularly, the termination right was expressly intended to relieve authors of the consequences of ill-advised and unremunerative grants that had been made before the author had a fair opportunity to Page 469 U. S. 173 appreciate the true value of his work product. [Footnote 39] That general purpose is plainly defined in the legislative history and, indeed, is fairly inferable from the text of § 304 itself.The Exception in § 304(c)(6)(A) was designed, however, to exclude a specific category of grants even if they were manifestly unfair to the author -- from that broad objective. The purpose of the Exception was to "preserve the right of the owner of a derivative work to exploit it, notwithstanding the reversion." [Footnote 40] Therefore, even if a person acquired the right to exploit an already prepared derivative work by means of an unfavorable bargain with an author, that right was to be excluded from the bundle of rights that would revert to the author when he exercised his termination right. The critical point in determining whether the right to continue utilizing a derivative work survives the termination of a transfer of a copyright is whether it was "prepared" before the termination. Pretermination derivative works -- those prepared under the authority of the terminated grant -- may continue to be utilized under the terms of the terminated grant. Derivative works prepared after the termination of the grant are not extended this exemption from the termination provisions. It is a matter of indifference as far as the reason for Page 469 U. S. 174 giving protection to derivative works is concerned -- whether the authority to prepare the work had been received in a direct license from an author, or in a series of licenses and sublicenses. The scope of the duly authorized grant and the time the derivative work was prepared are what the statute makes relevant because these are the factors that determine which of the statute's two countervailing purposes should control. [Footnote 41]The obligation of an owner of a derivative work to pay royalties based on his use of the underlying copyright is not subject to renegotiation because the Exception protects it. The "terms of the grant" as existing at the time of termination govern the author's right to receive royalties; those terms are therefore excluded from the bundle of rights that the author may seek to resell unimpeded by any ill-advised prior commitment. The statutory distinction between the rights that revert to the author and those that do not revert is based on the character of the right -- not on the form or the number of written instruments that gave the owner of the derivative work the authority to prepare it. Nothing in the legislative history or the language of the statute indicates that Congress intended the Exception to distinguish between two-party transactions and those involving multiple parties.The example most frequently discussed in the legislative history concerning the Exception involved the sale of a copyrighted story to a motion picture producer. [Footnote 42] The Court of Page 469 U. S. 175 Appeals explained the need for the Exception as the interest in protecting the large investment that is required to produce a motion picture, and recognized that record companies similarly must also make a significant investment in compensating vocalists, musicians, arrangers, and recording engineers. Therefore, the court concluded that record companies are clearly within the class that the Exception protects. The court felt, however, that music publishers -- as middlemen -- were not similarly situated, but rather merely had an ownership interest in the copyright that reverted to the author upon termination. 720 F.2d at 742-743. As a matter of fact -- or of judicial notice -- we are in no position to evaluate the function that each music publisher actually performs in the marketing of each copyrighted song. But based on our reading of the statute and its legislative history, [Footnote 43] in interpreting Page 469 U. S. 176 the Exception we find no reason to differentiate between a book publisher's license to a motion-picture producer and a music publisher's license to a record company. Neither publisher is the author of the underlying work. If, as the legislative history plainly discloses, the Exception limits the reversion right of an author who granted his copyright on an original story to a book publisher who in turn granted a license to a motion-picture producer, we can see no reason why the Exception should not also limit the right of a composer, like Snyder, who made such a grant to a music publisher, like Mills, that preceded a series of licenses to record companies. [Footnote 44]VIFinally, respondents argue that the legislative history demonstrates that the Exception was designed to accomplish a well-identified purpose -- to enable derivative works to continue to be accessible to the public after the exercise of an author's termination rights. [Footnote 45] Specifically, that history Page 469 U. S. 177 discloses a concern about the status of a number of motion-picture films that had been prepared pursuant to grants by book publishers. Without the Exception, the reversion that an author's termination effected would have given the author the power to prevent further utilization of the motion-picture films, or possibly to demand royalties that the film producers were unwilling to pay. Because the specific problem that the Exception addressed involved a potential confrontation between derivative-works utilizers and authors who had recaptured their copyrights, respondents argue that Congress must have intended its response to the problem to affect only those two interests.The argument is unpersuasive. It explains why the Exception protects the utilizer of a derivative work from being required to pay an increased royalty to the author. It provides no support, however, for the proposition that Congress expected the author to be able to collect an increased royalty for the use of a derivative work. On the contrary, this history is entirely consistent with the view that the terms of the grant that were applicable to the use of derivative works at the time of termination should remain in effect. The public interest in preserving the status quo with respect to derivative works is equally well served by either petitioner's or respondents' reading of the Exception. Respondents' argument thus sheds no light on the meaning of the phrase Page 469 U. S. 178 "the terms of the grant." Surely it does not justify the replacement of contractual terms that unambiguously require payment of royalties to a publisher with a new provision directing payment to an author instead.Under the terms of the grant in effect at the time of termination, Mills is entitled to a share of the royalty income in dispute.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtMills Music, Inc. v. Snyder, 469 U.S. 153 (1985)Mills Music, Inc. v. SnyderNo. 83-1153Argued October 9, 1984Decided January 8, 1985469 U.S. 153SyllabusThis case involves a controversy between petitioner publisher and respondent heirs of the author of the 1923 copyrighted song "Who's Sorry Now" over the division of royalty income that the sound recordings of the song have generated. In 1940, the author assigned his entire interest in all renewals of the copyright to petitioner in exchange for an advance royalty and petitioner's commitment to pay a cash royalty on sheet music and 50 percent of all net royalties that petitioner received for mechanical reproductions. In 1951, petitioner registered a renewal copyright. Thereafter, petitioner directly or through an agent issued over 400 licenses to record companies authorizing the use of the song in phonograph records, and obligating the companies to pay royalties to petitioner, who in turn was obligated to pay 50 percent of those royalties to the author. Separate recordings were then prepared that generated the disputed royalty income. After the author's death, respondents succeeded to his interest in the arrangement with petitioner. Pursuant to 304(c)(2) of the Copyright Act, as revised in 1976, respondents terminated the author's grant to petitioner of rights in the renewal copyright. Under § 304(c)(6), this termination caused all rights "covered by the terminated grant" to revert to respondents, except that under § 304 (c)(6)(A) a"derivative work prepared under the authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination."The sound recordings in question come within the statutory definition of a "derivative work." When respondents demanded of petitioner's agent that the royalties on the recordings be remitted to them, the agent placed the disputed funds in escrow and brought an interpleader action in Federal District Court, which entered judgment for petitioner. The court held that the recordings had been "prepared under authority of the grant" from the author to petitioner, that the statute made no distinction between grantees who themselves make or own derivative works and those who license others to do so, that therefore the terms of the agreement that had been in effect prior to the termination governed the record companies' obligation to pay royalties, and that under those agreements petitioner and respondents were each entitled to a 50 percent share in the net royalty. The Court of Appeals reversed, holding that the § 304(c)(6)(A) exception preserved only the Page 469 U. S. 154 grants from petitioner to the record companies; that the reversion of the copyright to respondents carried with it petitioner's right to collect the royalties payable under those grants; that § 304 was enacted for the benefit of authors and that the exception was designed to protect "utilizers" of derivative works; that, because petitioner was neither an author nor a "utilizer," it was not a member of either class that § 304 was intended to benefit; and that the legislative history indicated that Congress had not contemplated a situation in which the authority to prepare derivative works was derived from two successive grants rather than a single grant directly from an author to a "utilizer."Held: Petitioner is entitled pursuant to § 304(c)(6)(A) to a share of the royalty income in dispute under the terms of the author's grant to petitioner in 1940. A consistent reading of the word "grant" in the text of § 304 (c)(6)(A) encompasses that grant. Nothing in the legislative history or the language of the statute indicates that Congress intended to draw a distinction between authorizations to prepare derivative works that are based on a single direct grant and those that are based on successive grants. Rather, the consequences of a termination that § 304 authorizes do not apply to derivative works that are protected by the § 304(c)(6)(A) exception. The boundaries of that exception are defined by reference to the scope of the privilege that had been authorized under the terminated grant and by reference to the time the derivative works were prepared. The record companies' derivative works involved in this case are unquestionably within those boundaries. Pp. 469 U. S. 164-178.720 F.2d 733, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 469 U. S. 178.

1990_89-1926

JUSTICE MARSHALL delivered the opinion of the Court. *In this case, we consider two questions relating to the federal income tax liability of respondent Centennial Savings Bank FSB (Centennial). The first is whether Centennial realized deductible losses when it exchanged its interests in one group of residential mortgage loans for another lender's interests in a different group of residential mortgage loans. The second is whether penalties collected by Centennial for the premature withdrawal of federally insured certificates of deposit (CD's) constituted "income by reason of the discharge . . . of indebtedness" excludable from gross income under 26 U.S.C. § 108(a)(1)(C) (1982 ed.). The Court of Appeals answered both questions affirmatively. We agree with the Court of Appeals that Centennial's mortgage exchange gave rise to an immediately deductible loss, but we reverse the Court of Appeals' determination that Centennial was entitled to exclude from its taxable income the early withdrawal penalties collected from its depositors.ICentennial is a mutual savings and loan institution (S & L) formerly regulated by the Federal Home Loan Bank Board (FHLBB). [Footnote 1] At issue in this case are two sets of transactions involving Centennial in the 1981 tax year.The first was Centennial's exchange of "90 participation interests" in a set of mortgage loans held by Centennial for "90 participation interests" in a different set of mortgage loans held by the Federal National Mortgage Association (FNMA). [Footnote 2] Secured by residential properties located primarily Page 499 U. S. 576 in northern Texas, Centennial's 420 loans had a face value of approximately $8.5 million and a fair market value of approximately $5.7 million; FNMA's 377 loans, secured by properties located throughout Texas, likewise had a face value of approximately $8.5 million and a fair market value of $5.7 million. Centennial and FNMA structured the exchange so that the respective mortgage packages would be deemed "substantially identical" under the FHLBB's Memorandum R-49, a regulatory directive aimed at identifying mortgage exchanges that would not generate accounting losses for FHLBB regulatory purposes but that would generate deductible losses for federal tax purposes. See generally Cottage Savings Assn. v. Commissioner, ante at 499 U. S. 556-557. On its 1981 return, Centennial claimed a deduction for the loss of $2,819,218, the difference between the face value (and cost basis) of the mortgage interests surrendered to FNMA and the market value of the mortgage interests received from FNMA in return.The second set of transactions was Centennial's collection of early withdrawal penalties from customers who prematurely terminated their CD accounts. Each CD agreement established a fixed-term, fixed-interest account. See App. 27-29. Consistent with federal regulations, each agreement also provided that the depositor would be required to pay a penalty to Centennial should the depositor withdraw the principal before maturity. See 12 CFR § 526.7(a) (1979); 12 CFR § 526.7(a) (1980); 12 CFR § 1204.103 (1981). Thus, in the event of premature withdrawal, the depositor was entitled under the CD agreement to the principal and accrued interest, minus the applicable penalty. See App. 27-29.Centennial collected $258,019 in early withdrawal penalties in 1981. In its tax return for that year, Centennial treated the penalties as income from the discharge of indebtedness. Pursuant to 26 U.S.C. §§ 108 and 1017 (1982 ed.), Centennial excluded the $258,019 from its income and reduced the basis of its depreciable property by that amount. Page 499 U. S. 577On audit, the Internal Revenue Service disallowed the deduction of the losses associated with Centennial's mortgages, and determined that Centennial should have declared as income the early withdrawal penalties collected that year. After paying the resulting deficiencies, Centennial instituted this refund action in the District Court for the Northern District of Texas, which entered judgment for the United States on the mortgage exchange issue, and for Centennial on the early withdrawal penalty issue. 682 F. Supp. 1389 (1988).The Court of Appeals for the Fifth Circuit reversed in part and affirmed in part. 887 F.2d 595 (1989). It reversed the District Court's ruling that Centennial did not realize a deductible loss in the mortgage exchange transaction. Relying on its reasoning in another decision handed down the same day, see San Antonio Savings Assn. v. Commissioner, 887 F.2d 577 (1989), the Court of Appeals concluded that, although the respective mortgage packages exchanged by Centennial and FNMA were "substantially identical" under Memorandum R-49, the two sets of mortgages were nonetheless "materially different" for tax purposes because they were secured by different residential properties. See 887 F.2d at 600. Consequently, the court held, the exchange of the two sets of mortgages did give rise to a realization event for tax purposes, allowing Centennial immediately to recognize its losses. See ibid.The Court of Appeals affirmed the District Court's conclusion that Centennial was entitled to treat the early withdrawal penalties as income from the discharge of indebtedness under § 108. The court reasoned that"the characterization of income as income from the discharge of indebtedness depends purely on the spread between the amount received by the debtor and the amount paid by him to satisfy his obligation."Id. at 601. Under this test, the early withdrawal penalties constituted income from the discharge of indebtedness, the court concluded, because the penalties reduced the size of Centennial's obligation to its depositors. See id. Page 499 U. S. 578 at 601-602. The court rejected the United States' characterization of the penalties as merely a "medium of payment" for Centennial's performance of its "separate obligation" to release the deposits prior to maturity. Id. at 604-605.The United States thereafter petitioned this Court for a writ of certiorari. Because the Court of Appeals' dispositions of both the mortgage exchange issue and the early withdrawal penalty issue are in conflict with decisions in other Circuits, and because of the importance of both issues for the savings and loan industry, we granted the petition. 498 U.S. 808 (1990). [Footnote 3]IIThe question whether Centennial realized tax-deductible losses when it exchanged mortgage interests with FNMA is controlled by our decision in Cottage Savings Assn. v. Commissioner. In Cottage Savings, we recognized that a property exchange gives rise to a realization event for purposes of § 1001(a) of the Internal Revenue Code [Footnote 4] so long as the exchanged Page 499 U. S. 579 properties are "materially different." Ante at 499 U. S. 560-562. We concluded that the properties are "different" in the sense "material" to the Code so long as they embody legally distinct entitlements. Ante at 499 U. S. 564-565.That test is easily satisfied here. As in Cottage Savings, the participation interests exchanged here were in loans made to different obligors and secured by different properties. Thus, the interests embodied distinct entitlements. We therefore affirm the Court of Appeals' conclusion that Centennial was entitled to a refund of the disallowed losses claimed on its mortgages.IIIWe next consider the question whether the early withdrawal penalties collected by Centennial constituted "income by reason of the discharge . . . of indebtedness" excludable from income under 26 U.S.C. § 108(a)(1) (1982 ed.). We conclude that the penalties were not subject to exclusion under § 108 because the depositors who paid these penalties did not "discharge" Centennial from any repayment obligation.The version of § 108 in effect for the 1981 tax year states:"Gross income does not include any amount which (but for this subsection) would be includible in gross income by reason of the discharge (in whole or in part) of indebtedness of the taxpayer if --"* * * *"(C) the indebtedness discharged is qualified business indebtedness."26 U.S.C. § 108(a)(1) (1982 ed.). "[Q]ualified business indebtedness" includes "indebtedness . . . incurred or assumed . . . by a corporation." 26 U.S.C. § 108(d)(4)(A) (1982 ed.). [Footnote 5] Income from the discharge of Page 499 U. S. 580 qualified business indebtedness can be excluded from gross income under § 108 only if the taxpayer elects to reduce the basis of his depreciable property by an amount equal to the income excluded. 26 U.S.C. §§ 108(c)(1), 108(d)(4)(B), 1017 (1982 ed.). Thus, the effect of § 108 is not genuinely to exempt such income from taxation, but rather to defer the payment of the tax by reducing the taxpayer's annual depreciation deductions or by increasing the size of taxable gains upon ultimate disposition of the reduced-basis property.In characterizing early withdrawal penalties as discharge-of-indebtedness income, Centennial, like the Court of Appeals, focuses purely on the "spread" between the debt that Centennial assumed upon the opening of each CD account and the amount that it actually paid each depositor upon the closing of the account. See 887 F.2d at 601. When a depositor opens a CD account, Centennial notes, the bank becomes indebted to the depositor for the principal of the deposit plus accrued interest. By virtue of its collection of an early withdrawal penalty, however, the bank satisfies the debt for less than that amount should the depositor withdraw the principal before maturity. The end result, in Centennial's view, is no different from what it would have been had the bank and depositor (freed from the restraints of bank regulatory law) formed no agreement on an early withdrawal penalty at the outset, but rather negotiated a forgiveness of that amount at the time of withdrawal.We reject this analysis, because it fails to make sense of § 108's use of the term "discharge." As used in § 108, the term "discharge of indebtedness" conveys forgiveness of; or release from, an obligation to repay. [Footnote 6] A depositor who Page 499 U. S. 581 prematurely closes his account and pays the early withdrawal penalty does not forgive or release any repayment obligation on the part of the financial institution. The CD agreement itself provides that the depositor will be entitled only to the principal and accrued interest, less the applicable penalty, should the the depositor prematurely withdraw the principal. Through this formula, the depositor and the bank have determined in advance precisely how much the depositor will be entitled to receive should the depositor close the account on any day up to the maturity date. Thus, the depositor does not "discharge" the bank from an obligation when it accepts an amount equal to the principal and accrued interest minus the penalty, for this is exactly what the bank is obligated to pay under the terms of the CD agreement.Because § 108 presupposes the "discharge" of an obligation to repay, we disagree with Centennial and the Court of Appeals' conclusion that the "spread" between the debt assumed by Centennial and the amount paid by Centennial upon the closing of the account is sufficient to trigger § 108. The existence of such a spread is sufficient to demonstrate that Centennial enjoyed an accession to income equal in size to the amount of the penalty. But because this income was not the product of the release of any obligation assumed by Centennial at the outset of the bank-depositor relationship, it does not constitute income "by reason of [a] discharge." In sum, to determine whether the debtor has realized "income by reason of the discharge . . . of indebtedness," it is necessary to look at both the end result of the transaction and the repayment terms agreed to by the parties at the outset of the debtor-creditor relationship. [Footnote 7] Page 499 U. S. 582This common-sense reading of the statutory language best comports with the purpose underlying § 108. The tax deferral mechanism in § 108 is designed to mitigate the effect of treating the discharge of indebtedness as income. See 26 U.S.C. § 61(a)(12) (1982 ed.) ("gross income ... includ[es] ... [i]ncome from discharge of indebtedness"). Borrowed funds are excluded from income in the first instance because the taxpayer's obligation to repay the funds offsets any increase in the taxpayer's assets; if the taxpayer is thereafter released from his obligation to repay, the taxpayer enjoys a net increase in assets equal to the forgiven portion of the debt, and the basis for the original exclusion thus evaporates. See United States v. Kirby Lumber Co., 284 U. S. 1, 284 U. S. 3 (1931); Commissioner v. Jacobson, 336 U. S. 28, 336 U. S. 38 (1949); see also Commissioner v. Tufts, 461 U. S. 300, 461 U. S. 307, 310-311, n. 11 (1983). But while the cancellation of the obligation to repay increases the taxpayer's assets, it does not necessarily generate cash with which the taxpayer can pay the resulting income tax. Congress established the tax-deferral mechanism Page 499 U. S. 583 in § 108 so that the prospect of immediate tax liability would not discourage businesses from taking advantage of opportunities to repurchase or liquidate their debts at less than face value. See H.R.Rep. No. 855, 76th Cong., 1st Sess., 5 (1939); S.Rep. No. 1631, 77th Cong., 2d Sess., 77-78 (1942). See generally Wright, Realization of Income Through Cancellations, Modifications, and Bargain Purchases of Indebtedness: I, 49 Mich.L.Rev. 459, 477, 492 (1951).This rationale is squarely implicated only when the debtor is seeking forgiveness or cancellation of a preexisting repayment obligation. A debtor who negotiates in advance the circumstances in which he will liquidate the debt for less than its face value is in a position to anticipate his need for cash with which to pay the resulting income tax and can negotiate the terms of the anticipated liquidation accordingly. Moreover, insofar as the CD agreements at issue in this case committed Centennial to releasing the deposits at the sole election of the depositors, Centennial abandoned any control whatsoever over whether and when these particular debt obligations would be liquidated. Consequently, unlike a debtor considering the negotiation of an adjustment of the terms of his duty to repay, Centennial had no discretion to take the tax effects of the transaction into account before liquidating its debt obligations at less than face value.It is true, as Centennial points out, that construing § 108 to apply only to debt reductions stemming from a negotiated forgiveness of a duty to repay withholds a tax incentive to include "anticipatory discharge" terms in the credit agreement at the outset. But we read the statutory language as embodying a legislative choice not to extend the benefits of § 108's deferral mechanism that far. For the reasons that we have stated, Congress could easily have concluded that only debtors seeking a release from a preexisting repayment obligation need or deserve the tax break conferred by § 108. Consistent with the rule that tax exemption and deferral provisions are to be construed narrowly, Commissioner v. Page 499 U. S. 584 Jacobson, supra, 336 U.S. at 336 U. S. 49; Elam v. Commissioner, 477 F.2d 1333, 1335 (CA6 1973), we conclude that Congress did not intend to extend the benefits of § 108 beyond the setting in which a creditor agrees to release a debtor from an obligation assumed at the outset of the relationship.IVFor the foregoing reasons, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Centennial Savings Bank FSB, 499 U.S. 573 (1991)United States v. Centennial Savings Bank FSBNo. 89-1926Argued Jan. 15, 1991Decided April 17, 1991499 U.S. 573SyllabusDuring the 1981 tax year, respondent Centennial Savings Bank FSB exchanged participation interests in a set of mortgage loans for interests in a different set of mortgage loans held by another lender. All of the loans were secured by residential properties and had a face value substantially higher than their fair market value. In a separate set of transactions, Centennial collected early withdrawal penalties from customers who prematurely terminated their certificates of deposit (CD's). In its 1981 federal income tax return, Centennial claimed a deduction for the difference between the face value of the mortgage interests it surrendered and the fair market value of the mortgage interests it received. It also treated the early withdrawal penalties it received as "income from the discharge . . . of indebtedness" excludable from gross income under 26 U.S.C. § 108(a)(1)(C) (1982 ed.). After the Internal Revenue Service disallowed the deduction of the losses associated with the mortgages and determined that Centennial was required to declare the early withdrawal penalties as income, Centennial paid the deficiencies and filed a refund action in the District Court. The court entered a judgment for petitioner United States on the mortgage exchange issue and for Centennial on the early withdrawal penalty issue. The Court of Appeals reversed the mortgage exchange ruling, but affirmed the early withdrawal penalty holding.Held:1. Centennial realized tax-deductible losses when it exchanged mortgage interests with the other lender. Cottage Savings Assn. v. Commissioner, ante, p. 499 U. S. 554. P. 499 U. S. 578-579.2. The early withdrawal penalties collected by Centennial were not excludable from income under § 108(a)(1). A debtor realizes income from the "discharge of indebtedness" only when the income results from the forgiveness of, or release from, an obligation to repay assumed by the debtor at the outset of the debtor-creditor relationship. Here, the depositors who prematurely closed their accounts and incurred penalties did not forgive or release any repayment obligation on the part of Centennial, which paid exactly what it was obligated to pay according to the Page 499 U. S. 574 terms of the agreements entered into at the time the CD's were established. This reading best comports with § 108's purpose, which is to mitigate the effect of treating a discharge of indebtedness as income so that the prospect of immediate tax liability will not discourage businesses from taking advantage of opportunities to repurchase or liquidate their debts at less than face value. A debtor who negotiates in advance the circumstances in which he will liquidate the debt is in a position to anticipate his need for cash with which to pay the resulting income tax and can negotiate the terms of the anticipated liquidation accordingly. Moreover, in this case, Centennial was committed to releasing the deposits at the sole election of the depositors. Thus, unlike a debtor considering the negotiation of an adjustment of the terms of a duty to repay, Centennial had no discretion to take the tax effects of a transaction into account before liquidating its obligation at less than face value. Pp. 499 U. S. 579-580..887 F.2d 595 (CA5 1989), affirmed in part, reversed in part, and remanded.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in Parts I and III of which WHITE, J., joined, and in Part III of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which WHITE, J., joined, post, p. 499 U. S. 568. Page 499 U. S. 575

1987_86-787

JUSTICE WHITE delivered the opinion of the Court.A parent failed to comply with a valid court order to make child support payments, and defended against subsequent contempt charges by claiming that he was financially unable Page 485 U. S. 627 to make the required payments. The trial court ruled that, under state law, he is presumed to remain able to comply with the terms of the prior order, and judged him to be in contempt. The state appellate court held that the legislative presumptions applied by the trial court violate the Due Process Clause of the Fourteenth Amendment, which forbids a court to employ certain presumptions that affect the determination of guilt or innocence in criminal proceedings. We must decide whether the Due Process Clause was properly applied in this case.IOn January 19, 1976, a California state court entered an order requiring respondent, Phillip Feiock, to begin making monthly payments to his ex-wife for the support of their three children. Over the next six years, respondent only sporadically complied with the order, and by December, 1982, he had discontinued paying child support altogether. His ex-wife sought to enforce the support orders. On June 22, 1984, a hearing was held in California state court on her petition for ongoing support payments and for payment of the arrearage due her. The court examined respondent's financial situation and ordered him to begin paying $150 per month commencing on July 1, 1984. The court reserved jurisdiction over the matter for the purpose of determining the arrearages and reviewing respondent's financial condition.Respondent apparently made two monthly payments, but paid nothing for the next nine months. He was then served with an order to show cause why he should not be held in contempt on nine counts of failure to make the monthly payments ordered by the court. At a hearing on August 9, 1985, petitioner made out a prima facie case of contempt against respondent by establishing the existence of a valid court order, respondent's knowledge of the order, and respondent's failure to comply with the order. Respondent defended by arguing that he was unable to pay support during Page 485 U. S. 628 the months in question. This argument was partially successful, but respondent was adjudged to be in contempt on five of the nine counts. He was sentenced to 5 days in jail on each count, to be served consecutively, for a total of 25 days. This sentence was suspended, however, and respondent was placed on probation for three years. As one of the conditions of his probation, he was ordered once again to make support payments of $150 per month. As another condition of his probation, he was ordered, starting the following month, to begin repaying $50 per month on his accumulated arrearage, which was determined to total $1,650.At the hearing, respondent had objected to the application of Cal.Civ.Proc.Code Ann. § 1209.5 (West 1982) against him, claiming that it was unconstitutional under the Due Process Clause of the Fourteenth Amendment because it shifts to the defendant the burden of proving inability to comply with the order, which is an element of the crime of contempt. [Footnote 1] This objection was rejected, and he renewed it on appeal. The intermediate state appellate court agreed with respondent and annulled the contempt order, ruling that the state statute purports to impose "a mandatory presumption compelling a conclusion of guilt without independent proof of an ability to pay," and is therefore unconstitutional because "the mandatory nature of the presumption lessens the prosecution's burden of proof." 180 Cal. App. 3d 649, 654, 225 Cal. Rptr. 748, 751 (1986). [Footnote 2] In light of its holding that the statute as previously interpreted was unconstitutional, the Page 485 U. S. 629 court went on to adopt a different interpretation of that statute to govern future proceedings:"For future guidance, however, we determine the statute in question should be construed as authorizing a permissive inference, but not a mandatory presumption."Id. at 655, 225 Cal. Rptr. at 751. The court explicitly considered this reinterpretation of the statute to be an exercise of its "obligation to interpret the statute to preserve its constitutionality whenever possible." Ibid. The California Supreme Court denied review, but we granted certiorari. 480 U.S. 915 (1987).IIThree issues must be decided to resolve this case. First is whether the ability to comply with a court order constitutes an element of the offense of contempt or, instead, inability to comply is an affirmative defense to that charge. Second is whether § 1209.5 requires the alleged contemnor to shoulder the burden of persuasion or merely the burden of production in attempting to establish his inability to comply with the order. Third is whether this contempt proceeding was a criminal proceeding or a civil proceeding, i.e., whether the relief imposed upon respondent was criminal or civil in nature.Petitioner argues that the state appellate court erred in its determinations on the first two points of state law. The court ruled that whether the individual is able to comply with a court order is an element of the offense of contempt, rather than an affirmative defense to the charge, and that § 1209.5 shifts to the alleged contemnor the burden of persuasion, rather than simply the burden of production in showing inability to comply. We are not at liberty to depart from the state appellate court's resolution of these issues of state law. Although petitioner marshals a number of sources in support of the contention that the state appellate court misapplied state law on these two points, the California Supreme Court Page 485 U. S. 630 denied review of this case, and we are not free in this situation to overturn the state court's conclusions of state law. [Footnote 3]The third issue, however, is a different matter: the argument is not merely that the state court misapplied state law, but that the characterization of this proceeding and the relief given as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections, raises a question of federal law, rather than state law. This proposition is correct as stated. In re Winship, 397 U. S. 358, 397 U. S. 365-366 (1970); In re Gault, 387 U. S. 1, 387 U. S. 49-50 (1967); Shillitani v. United States, 384 U. S. 364, 384 U. S. 368-369 (1966). The fact that this proceeding and the resultant relief were judged to be criminal in nature as a matter of state law is thus not determinative of this issue, and the state appellate court erred insofar as it sustained respondent's challenge to the statute under the Due Process Clause simply because it concluded that this contempt proceeding is "quasi-criminal" as a matter of California law. 180 Cal. App. 3d at 653, 225 Cal. Rptr. at 750. Page 485 U. S. 631IIIAThe question of how a court determines whether to classify the relief imposed in a given proceeding as civil or criminal in nature, for the purposes of applying the Due Process Clause and other provisions of the Constitution, is one of long standing, and its principles have been settled, at least in their broad outlines, for many decades. When a State's proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority "in a nonpunitive, noncriminal manner," and one who challenges the State's classification of the relief imposed as "civil" or "criminal" may be required to show "the clearest proof" that it is not correct as a matter of federal law. Allen v. Illinois, 478 U. S. 364, 478 U. S. 368-369 (1986). Nonetheless, if such a challenge is substantiated, then the labels affixed either to the proceeding or to the relief imposed under state law are not controlling, and will not be allowed to defeat the applicable protections of federal constitutional law. Ibid. This is particularly so in the codified laws of contempt, where the "civil" and "criminal" labels of the law have become increasingly blurred. [Footnote 4]Instead, the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford."If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt, the sentence is punitive, to vindicate the authority of the court."Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 441 (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward Page 485 U. S. 632 rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id. at 221 U. S. 442. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e.g., Gompers, supra, at 221 U. S. 444; Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 266 U. S. 66 (1924). [Footnote 5]The Court has consistently applied these principles. In Gompers, decided early in this century, three men were found guilty of contempt and were sentenced to serve 6, 9, and 12 months, respectively. The Court found this relief to be criminal in nature, because the sentence was determinate and unconditional."The distinction between refusing to do an act commanded, -- remedied by imprisonment until the party performs the required act; and doing an act forbidden, -- punished by imprisonment for a definite term, is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment. Page 485 U. S. 633 Gompers, 221 U.S. at 221 U. S. 443. In the former instance, the conditional nature of the punishment renders the relief civil in nature because the contemnor 'can end the sentence and discharge himself at any moment by doing what he had previously refused to do.' Id. at 221 U. S. 442. In the latter instance, the unconditional nature of the punishment renders the relief criminal in nature because the relief 'cannot undo or remedy what has been done nor afford any compensation' and the contemnor 'cannot shorten the term by promising not to repeat the offense.' Ibid."The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is "solely and exclusively punitive in character." Penfield Co. v. SEC, 330 U. S. 585, 330 U. S. 593 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act."One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, 'carry the keys of their prison in their own pockets.'"Id. at 330 U. S. 590, quoting In re Nevitt, 117 F. 448, 461 (CA8 1902). In Penfield, a man was found guilty of contempt for refusing to obey a court order to produce documents. This Court ruled that, since the man was not tried in a proceeding that afforded him the applicable constitutional protections, he could be given a conditional term of imprisonment, but could not be made to pay "a flat, unconditional fine of $50.00." Penfield, supra, at 330 U. S. 588. [Footnote 6] See Page 485 U. S. 634 also United States v. Rylander, 460 U. S. 752 (1983); Nye v. United States, 313 U. S. 33 (1941); Fox v. Capital Co., 299 U. S. 105 (1936); Lamb v. Cramer, 285 U. S. 217 (1932); Oriel v. Russell, 278 U. S. 358 (1929); Ex parte Grossman, 267 U. S. 87 (1925); Doyle v. London Guarantee Co., 204 U. S. 599 (1907); In re Christensen Engineering Co., 194 U. S. 458 (1904); Bessette v. W. B. Conkey Co., 194 U. S. 324 (1904).Shillitani v. United States, 384 U. S. 364 (1966), adheres to these same principles. There two men were adjudged guilty of contempt for refusing to obey a court order to testify under a grant of immunity. Both were sentenced to two years of imprisonment, with the proviso that if either answered the questions before his sentence ended, he would be released. The penalties were upheld because of their "conditional nature," even though the underlying proceeding lacked certain constitutional protections that are essential in criminal proceedings. Id. at 384 U. S. 365. Any sentence "must be viewed as remedial," and hence civil in nature, "if the court conditions release upon the contemnor's willingness to [comply with the order]." Id. at 384 U. S. 370. By the same token, in a civil proceeding the court "may also impose a determinate sentence which includes a purge clause." Id. at 384 U. S. 370, n. 6 (emphasis added)."On the contrary, a criminal contempt proceeding would be characterized by the imposition of an Page 485 U. S. 635 unconditional sentence for punishment or deterrence."Id. at 384 U. S. 370, n. 5. [Footnote 7]BIn repeatedly stating and following the rules set out above, the Court has eschewed any alternative formulation that would make the classification of the relief imposed in a State's proceedings turn simply on what their underlying purposes are perceived to be. Although the purposes that lie behind particular kinds of relief are germane to understanding their character, this Court has never undertaken to psychoanalyze the subjective intent of a State's laws and its courts, not only because that effort would be unseemly and improper, but also because it would be misguided. In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law's purpose of modifying the contemnor's behavior to conform to the terms required in the order. As was noted in Gompers:"It is true that either form of [punishment] has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of the court's authority. On the other hand, if the proceeding is for criminal contempt and the [punishment] is solely Page 485 U. S. 636 punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change [punishment] which is merely coercive and remedial into that which is solely punitive in character, or vice versa."221 U.S. at 221 U. S. 443. For these reasons, this Court has judged that conclusions about the purposes for which relief is imposed are properly drawn from an examination of the character of the relief itself.There is yet another reason why the overlapping purposes of civil and criminal contempt proceedings have prevented this Court from hinging the classification on this point. If the definition of these proceedings and their resultant relief as civil or criminal is made to depend on the federal courts' views about their underlying purposes, which indeed often are not clearly articulated in any event, then the States will be unable to ascertain with any degree of assurance how their proceedings will be understood as a matter of federal law. The consequences of any such shift in direction would be both serious and unfortunate. Of primary practical importance to the decision in this case is that the States should be given intelligible guidance about how, as a matter of federal constitutional law, they may lawfully employ presumptions and other procedures in their contempt proceedings. It is of great importance to the States that they be able to understand clearly and in advance the tools that are available to them in ensuring swift and certain compliance with valid court orders -- not only orders commanding payment of child support, as in this case, but also orders that command compliance in the more general area of domestic relations law, and in all other areas of the law as well.The States have long been able to plan their own procedures around the traditional distinction between civil and Page 485 U. S. 637 criminal remedies. The abandonment of this clear dividing line in favor of a general assessment of the manifold and complex purposes that lie behind a court's action would create novel problems where now there are rarely any -- novel problems that could infect many different areas of the law. And certainly the fact that a contemnor has his sentence suspended and is placed on probation cannot be decisive in defining the civil or criminal nature of the relief, for many convicted criminals are treated in exactly this manner for the purpose (among others) of influencing their behavior. What is true of the respondent in this case is also true of any such convicted criminal: as long as he meets the conditions of his informal probation, he will never enter the jail. Nonetheless, if the sentence is a determinate one, then the punishment is criminal in nature, and it may not be imposed unless federal constitutional protections are applied in the contempt proceeding. [Footnote 8]IVThe proper classification of the relief imposed in respondent's contempt proceeding is dispositive of this case. As interpreted by the state court here, § 1209.5 requires respondent to carry the burden of persuasion on an element of the offense by showing his inability to comply with the court's order to make the required payments. If applied in a criminal proceeding, such a statute would violate the Due Process Clause, because it would undercut the State's burden to prove guilt beyond a reasonable doubt. See, e.g., 421 U. S. Page 485 U. S. 638 Wilbur, 421 U. S. 684, 421 U. S. 701-702 (1975). If applied in a civil proceeding, however, this particular statute would be constitutionally valid, Maggio v. Zeitz, 333 U. S. 56, 333 U. S. 75-76 (1948); Oriel, 278 U.S. at 278 U. S. 364-365, and respondent conceded as much at the argument. Tr. of Oral Arg. 37. [Footnote 9]The state court found the contempt proceeding to be "quasi-criminal" in nature without discussing the point. 180 Cal. App. 3d at 653, 225 Cal. Rptr. at 750. There were strong indications that the proceeding was intended to be criminal in nature, such as the notice sent to respondent, which clearly labeled the proceeding as "criminal in nature," Order to Show Cause and Declaration for Contempt (June 12, 1985), App. 21, and the participation of the District Attorney in the case. Though significant, these facts are not dispositive of the issue before us, for if the trial court had imposed only civil coercive remedies, as surely it was authorized to do, then it would be improper to invalidate that result merely because the Due Process Clause, as applied in criminal proceedings, was not satisfied. [Footnote 10] It also bears emphasis that the purposes underlying this proceeding were wholly ambiguous. Respondent was charged with violating nine discrete prior court orders, and the proceeding may have been intended Page 485 U. S. 639 primarily to vindicate the court's authority in the face of his defiance. On the other hand, as often is true when court orders are violated, these charges were part of an ongoing battle to force respondent to conform his conduct to the terms of those orders, and of future orders as well.Applying the traditional rules for classifying the relief imposed in a given proceeding requires the further resolution of one factual question about the nature of the relief in this case. Respondent was charged with nine separate counts of contempt, and was convicted on five of those counts, all of which arose from his failure to comply with orders to make payments in past months. He was sentenced to 5 days in jail on each of the five counts, for a total of 25 days, but his jail sentence was suspended and he was placed on probation for three years. If this were all, then the relief afforded would be criminal in nature. [Footnote 11] But this is not all. One of the conditions of respondent's probation was that he begin making payments on his accumulated arrearage, and that he continue making these payments at the rate of $50 per month. At that rate, all of the arrearage would be paid before respondent completed his probation period. Not only did the order therefore contemplate that respondent would be required to Page 485 U. S. 640 purge himself of his past violations, but it expressly states that "[i]f any two payments are missed, whether consecutive or not, the entire balance shall become due and payable." Order of the California Superior Court for Orange County (Aug. 9, 1985), App. 39. What is unclear is whether the ultimate satisfaction of these accumulated prior payments would have purged the determinate sentence imposed on respondent. Since this aspect of the proceeding will vary as a factual matter from one case to another, depending on the precise disposition entered by the trial court, and since the trial court did not specify this aspect of its disposition in this case, it is not surprising that neither party was able to offer a satisfactory explanation of this point at argument. Tr. of Oral Arg. 42-47. [Footnote 12] If the relief imposed here is in fact a determinate sentence with a purge clause, then it is civil in nature. Shillitani, 384 U.S. at 3 384 U. S. 70, n. 6; Fox, 299 U.S. at 299 U. S. 106, 299 U. S. 108; Gompers, 221 U.S. at 221 U. S. 442.The state court did not pass on this issue because of its erroneous view that it was enough simply to aver that this proceeding is considered "quasi-criminal" as a matter of state law. And, as noted earlier, the court's view on this point, coupled with its view of the Federal Constitution, also led it to reinterpret the state statute, thus softening the impact of the presumption, in order to save its constitutionality. Yet the Due Process Clause does not necessarily prohibit the State from employing this presumption as it was construed by the state court, if respondent would purge his contempt judgment by paying off his arrearage. In these circumstances, the proper course for this Court is to vacate the judgment below and remand for further consideration of § 1209.5 free from the compulsion of an erroneous view of federal Page 485 U. S. 641 law. See, e.g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U. S. 138, 467 U. S. 152 (1984). If on remand it is found that respondent would purge his sentence by paying his arrearage, then this proceeding is civil in nature and there was no need for the state court to reinterpret its statute to avoid conflict with the Due Process Clause. [Footnote 13]We therefore vacate the judgment below and remand for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtHicks v. Feiock, 485 U.S. 624 (1988)Hicks v. FeiockNo. 86-787Argued December 1, 1987Decided April 27, 1988485 U.S. 624SyllabusAfter respondent stopped making $150 monthly child support payments to his ex-wife under a California state court order, he was served with an order to show cause why he should not be held in contempt on nine counts of failure to make the payments. At the contempt hearing, his defense that he was financially unable to make payments was partially successful, but he was adjudged in contempt on five counts; was sentenced to a 5-day jail term on each count, to be served consecutively; and was placed on probation for three years upon suspension of the sentence. As conditions of his probation, he was ordered to resume the monthly payments and to begin repaying $50 per month on his accumulated arrearages. During the contempt hearing, the court rejected his contention that the application against him of Cal.Civ.Proc.Ann. § 1209.5 (West 1982), governing the prima facie showing of contempt of a court order to make child support payments, was unconstitutional under the Fourteenth Amendment's Due Process Clause because it shifts to the defendant the burden of proof as to ability to comply with the order, which is an element of the crime of contempt. The California Court of Appeal annulled the contempt order, ruling that § 1209.5 purports to impose "a mandatory presumption compelling a conclusion of guilt without independent proof of an ability to pay," and is therefore unconstitutional because "the mandatory nature of the presumption lessens the prosecution's burden of proof." The court went on to state that, for future guidance, however, the statute should be construed as authorizing a permissive inference, not a mandatory presumption. The California Supreme Court denied review.Held:1. With regard to the determination of issues necessary to decide this case, the state appellate court ruled that whether the individual is able to comply with a court order is an element of the offense of contempt, rather than an affirmative defense to the charge, and that § 1209.5 shifts to the alleged contemnor the burden of persuasion, rather than simply the burden of production in showing inability to comply. Since the California Supreme Court denied review, this Court is not free to overturn the Page 485 U. S. 625 state appellate court's conclusions as to these state law issues. However, the issue whether the contempt proceeding and the relief given were properly characterized as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections, raises a question of federal law, rather than state law. Thus, the state appellate court erred insofar as it sustained respondent's challenge to § 1209.5 under the Due Process Clause simply because it concluded that the contempt proceeding was "quasi-criminal" as a matter of California law. Pp. 485 U. S. 629-630.2. For the purposes of applying the Due Process Clause to a State's proceedings, state law provides strong guidance, but is not dispositive, as to the classification of the proceeding or the relief imposed as civil or criminal. The critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. With regard to contempt cases, the proceeding and remedy are for civil contempt if the punishment is remedial, and for the complainant's benefit. But if for criminal contempt, the sentence is punitive, to vindicate the court's authority. Thus, if the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court's order, and is punitive if the sentence is limited to unconditional imprisonment for a definite period. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that is payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the act required by the court's order. These distinctions lead to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. Pp. 485 U. S. 631-635.3. Although the underlying purposes of particular kinds of relief are germane, they are not controlling in determining the classification of the relief imposed in a State's proceedings. In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive, or both. If classification were to be hinged on the overlapping purposes of civil and criminal contempt proceedings, the States will be unable to ascertain with any degree of assurance how their proceedings will be understood as a matter of federal law, thus creating novel and complex problems. Pp. 485 U. S. 635-637.4. In respondent's contempt proceeding, § 1209.5's burden of persuasion requirement (as interpreted by the state court), if applied in a criminal proceeding, would violate the Due Process Clause because it would undercut the State's burden to prove guilt beyond a reasonable doubt. Page 485 U. S. 626 If applied in a civil proceeding, however, this particular statute would be constitutionally valid. There were strong indications that the proceeding was intended to be criminal in nature, such as the notice sent to respondent, which labeled the proceeding as "criminal in nature," and the District Attorney's participation in the case. However, if the trial court imposed only civil coercive remedies, it would be improper to invalidate that result merely because the Due Process Clause was not satisfied. The relief afforded -- respondent's jail sentence, its suspension, and his fixed term of probation -- would be criminal in nature if that were all. However, the trial court did not specify whether payment of the arrearages (which, if timely made, would be completed before expiration of the probation period) would have purged respondent's determinate sentence, thus making the relief civil in nature. Since the state appellate court, because of its erroneous views as to these controlling principles of federal law, did not pass on this issue, it must be determined by that court on remand for its further consideration of § 1209.5. Pp. 485 U. S. 637-641.180 Cal. App. 3d 649, 225 Cal. Rptr. 748, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined. KENNEDY, J., took no part in the consideration or decision of the case.

1976_75-1221

MR. JUSTICE POWELL delivered the opinion of the Court.The question for decision is how unearned premium reserves for accident and health (A&H) insurance policies should be allocated between a primary insurer and a reinsurer for federal tax purposes. We granted certiorari in these three cases to resolve a conflict between the Circuits and the Court of Claims. 425 U.S. 990 (1976).IAn insurance company is considered a life insurance company under the Internal Revenue Code if its life insurance reserves constitute more than 50% of its total reserves, IRC of 1954, § 801(a), 26 U.S.C. § 801(a), [Footnote 1] and qualifying companies Page 430 U. S. 728 are accorded preferential tax treatment. [Footnote 2] A company close to the 50% line will ordinarily achieve substantial tax savings if it can increase its life insurance reserves or decrease nonlife reserves so as to come within the statutory definition.The taxpayers here are insurance companies that assumed both life insurance risks and A&H -- nonlife -- risks. The dispute in these cases is over the computation for tax purposes of nonlife reserves. The taxpayers contend that, by virtue of certain reinsurance agreements -- or treaties, to use the term commonly accepted in the insurance industry -- they have maintained nonlife reserves below the 50% level. The Government argues that the reinsurance agreements do not have that effect, that the taxpayers fail to meet the 50% test, and that, accordingly, they do not qualify for preferential treatment. [Footnote 3] Page 430 U. S. 729Specifically, the dispute is over the unearned premium reserve, the basic insurance reserve in the casualty insurance business and an important component of "total reserves," as that term is defined in § 801(c). [Footnote 4] A&H policies of the type involved here generally are written for a two- or three-year term. Since policyholders typically pay the full premium in advance, the premium is wholly "unearned" when the primary insurer initially receives it. See Rev.Rul. 61-167, 1961-2 Cum.Bull. 130, 132. The insurer's corresponding liability can be discharged in one of several ways: granting future protection by promising to pay future claims; reinsuring the risk with a solvent insurer; or returning a pro rata portion of the premium in the event of cancellation. Each method of discharging the liability may cost money. The insurer thus establishes on the liability side of its accounts a reserve, as a device to help assure that the company will have the assets necessary to meet its future responsibilities. See O. Dickerson, Health Insurance 604-605 (3d ed. 1968) (hereinafter Dickerson). Standard accounting practice in the casualty field, made mandatory by all state regulatory authorities, calls Page 430 U. S. 730 for reserves equal to the gross unearned portion of the premium. [Footnote 5] A simplified example may be useful: a policyholder takes out a three-year A&H policy for a premium, paid in advance, of $360. At first, the total $360 is unearned, and the insurer's books record an unearned premium reserve in the full amount of $360. At the end of the first month, one thirty-sixth of the term has elapsed, and $10 of the premium has become "earned." [Footnote 6] The unearned premium reserve may be reduced to $350. Another $10 reduction is permitted at the end of the second month, and so on.IIThe reinsurance treaties at issue here assumed two basic forms. [Footnote 7] Under the first form, Treaty I, the taxpayer served as reinsurer, and the "other party" was the primary insurer or "ceding company," in that it ceded part or all of its risk to the taxpayer. Under the second form, Treaty II, the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," that party being the reinsurer. Both types of treaties provided that the other party Page 430 U. S. 731 would hold the premium dollars derived from A&H business until such time as the premiums were earned -- that is, attributable to the insurance protection provided during the portion of the policy term that already had elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement. In each case, the taxpayer and the other party reported their affairs annually in this fashion to both the Internal Revenue Service and the appropriate state insurance departments. These annual statements were accepted by the state authorities without criticism. Despite this acceptance, the Government argues here that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties, as identified above, to the taxpayers, [Footnote 8] thereby disqualifying each of the taxpayers from preferential treatment.ANo. 75-1221, United States v. Consumer Life Ins. Co. In 1957, Southern Discount Corp. was operating a successful consumer finance business. Its borrowers, as a means of assuring payment of their obligations in the event of death or disability, typically purchased term life insurance and term A&H insurance at the time they obtained their loans. This insurance -- commonly known as credit life and credit A&H -- is usually coextensive in term and coverage with the term and amount of the loan. The premiums are generally paid in full Page 430 U. S. 732 at the commencement of coverage, the loan term ordinarily running for two or three years. Prohibited from operating in Georgia as an insurer itself, Southern served as a sales agent for American Bankers Life Insurance Co., receiving in return a sizable commission for its services.With a view to participating as an underwriter and not simply as agent in this profitable credit insurance business, Southern formed Consumer Life Insurance Co., the taxpayer here, as a wholly owned subsidiary incorporated in Arizona, the State with the lowest capital requirements for insurance companies. Although Consumer Life's low capital precluded it from serving as a primary insurer under Georgia law, it was nonetheless permitted to reinsure the business of companies admitted in Georgia.Consumer Life therefore negotiated the first of two reinsurance treaties with American Bankers. Under Treaty I, Consumer Life served as reinsurer and American Bankers as the primary insurer or ceding company. Consumer Life assumed 100% of the risks on credit life and credit A&H business originating with Southern, agreeing to reimburse American Bankers for all losses as they were incurred. In return, Consumer Life was paid a premium equivalent to 87 1/2% of the premiums received by American Bankers. [Footnote 9] But the mode of payment differed as between life and A&H policies. With respect to life insurance policies, American Bankers each month remitted to the reinsurer -- Consumer Life -- the stated percentage of all life insurance premiums collected during the prior month. With respect to A&H coverage, however, American Bankers each month remitted the stated percentage of the A&H premiums earned during the prior month, the remainder to be paid on a pro rata basis over the balance of the coverage period.Again an example might prove helpful. Assume that a Page 430 U. S. 733 policyholder buys from American Bankers on January 1 a three-year credit life policy and a three-year credit A&H policy, paying on that date a $360 premium for each policy. On February 1, under Treaty I, American Bankers would be obligated to pay Consumer Life 87 1/2% of $360 for reinsurance of life risks. This represents the total life reinsurance premium; there would be no further payments for life reinsurance. But for A&H reinsurance, American Bankers would remit on February 1 only the stated percentage of $10, since only $10 would have been earned during the prior month. It would remit the same amount on March 1 for A&H coverage provided during February, and so on for a total of 36 months.Treaty I permitted either party to terminate the agreement upon 30 days' notice. But termination was to be prospective; reinsurance coverage would continue on the same terms until the policy expiration date for all policies already executed. This is known as a "runoff provision."Because it held the unearned A&H premium dollars, and also under an express provision in Treaty I, American Bankers set up an unearned premium reserve equivalent to the full value of the premiums. Meantime, Consumer Life, holding no unearned premium dollars, established on its books no unearned premium reserve for A&H business. [Footnote 10] Annual statements filed with the state regulatory authorities in Arizona and Georgia reflected this treatment of reserves, and the statements were accepted without challenge or disapproval.By 1962, Consumer Life had accumulated sufficient surplus to qualify under Georgia law as a primary insurer. Treaty I was terminated, and Southern began placing its credit insurance business directly with Consumer Life. The parties then negotiated Treaty II, under which American Bankers served as reinsurer of the A&H policies issued by Consumer Page 430 U. S. 734 Life. [Footnote 11] Ultimately, Consumer Life retained the lion's share of the risk, but Treaty II was set up in such a way that American Bankers held the premium dollars until they were earned. This required rather complicated contractual provisions, since Consumer Life, as primary insurer, did receive the A&H premium dollars initially.Roughly described, Treaty II provided as follows: Consumer Life paid over the A&H premiums when they were received. American Bankers immediately returned 50% of this sum as a ceding commission meant to cover Consumer Life's initial expenses. Then, at the end of each quarter, American Bankers paid to Consumer Life "experience refunds" based on claims experience. If there were no claims, American Bankers would refund 47% of the total earned premiums. If there were claims (and naturally there always were), Consumer Life received 47% less the sums paid to meet claims. It is apparent that American Bankers would never retain more than 3% of the total earned premiums for the quarter. Only if claims exceeded 47% would this 3% be encroached, but, even in that event, Treaty II permitted American Bankers to recoup its losses by reducing the experience refund in later quarters. Actual claims experience never approached the 47% level.Again, since American Bankers held the unearned premiums, it set up the unearned premium reserve on its books. Consumer Life, which initially had set up such a reserve at the time it received the premiums, took credit against them for the reserve held by American Bankers. Annual statements filed by both companies consistently reflected this treatment of reserves under Treaty II, and at no time did state authorities take exception. [Footnote 12] Page 430 U. S. 735The taxable years 1958 through 1960, and 1962 through 1964, are at issue here. For each of those years, Consumer Life computed its § 801 ratio based on the reserves shown on its books and accepted by the state authorities. According to those figures, Consumer Life qualified for tax purposes as a life insurance company. The Commissioner of Internal Revenue determined, however, that the A&H reserves held by American Bankers should be attributed to Consumer Life, thereby disqualifying the latter from favorable treatment. Consumer Life paid the deficiency assessed by the Commissioner and brought suit for a refund. The Court of Claims, disagreeing with its trial judge, held for the taxpayer.BNo. 75-1260, First Railroad & Banking Company of Georgia v. United States. The relevant taxable entity in this case is First of Georgia Life Insurance Co., a subsidiary of the petitioner First Railroad & Banking Co. of Georgia. Georgia Life was party to a Treaty II type agreement, [Footnote 13] reinsuring its A&H policies with an insurance company, another subsidiary of First Railroad. [Footnote 14] On the basis of the reserves carried on its books and approved by state authorities, Georgia Life qualified Page 430 U. S. 736 as a life insurance company for the years at issue here, 1961-1964. Consequently First Railroad excluded Georgia Life's income from its consolidated return, pursuant to § 1504(b)(2) of the Code. The Commissioner determined that Georgia Life did not qualify for life insurance company status or exclusion from the consolidated return, and so assessed a deficiency. First Railroad paid and sued for a refund. It prevailed in the District Court, but the Court of Appeals for the Fifth Circuit reversed, relying heavily on Economy Finance Corp. v. United States, 501 F.2d 466 (CA7 1974), cert. denied, 420 U.S. 947, rehearing denied, 421 U.S. 922 (1975), motion for leave to file second petition for rehearing pending, No. 74-701.CNo. 75-1285, United States v. Penn Security Life Ins. Co. Penn Security Life Insurance Co., a Missouri corporation, is, like Consumer Life, a subsidiary of a finance company. Under three separate Treaty I type agreements, it reinsured the life and A&H policies of three unrelated insurers during the years in question, 1963-1965. The other companies reported the unearned premium reserves, and the Missouri authorities approved this treatment. Because one of the three treaties did not contain a runoff provision like that present in Consumer Life, the Government conceded that the reserves held by that particular ceding company should not be attributed to the taxpayer. But the other two treaties were similar in all relevant respects to Treaty I in Consumer Life. After paying the deficiencies assessed by the Commissioner, Penn Security sued for a refund in the Court of Claims. Both the trial judge and the full Court of Claims ruled for the taxpayer.IIIThe Government commences its argument by suggesting that these reinsurance agreements were sham transactions Page 430 U. S. 737 without economic substance, and therefore should not be recognized for tax purposes. See, e.g., Gregory v. Helvering, 293 U. S. 465, 293 U. S. 470 (1935); Knetsch v. United States, 364 U. S. 361 (1960). We do not think this is an accurate characterization.Both taxpayers who were parties to Treaty I agreements entered into them only after arm's-length negotiation with unrelated companies. The ceding companies gave up a large portion of premiums, but, in return, they had recourse against the taxpayers for 100% of claims. The ceding companies were not just doing the taxpayers a favor by holding premiums until earned. This delayed payment permitted the ceding companies to invest the dollars, and, under the treaties, they kept all resulting investment income. Nor were they mere "paymasters," as the Government contends, for indemnity reinsurance of this type does not relieve the ceding company of its responsibility to policyholders. Had the taxpayers become insolvent, the insurer still would have been obligated to meet claims. [Footnote 15]Treaty II also served most of the basic business purposes commonly claimed for reinsurance treaties. See W. Hammond, Insurance Accounting Fire & Casualty 86 (2d ed.1965); Dickerson 563 564. It reduced the heavy burden on the taxpayer's surplus caused by the practice of computing casualty reserves on the basis of gross unearned premiums even though the insurer may have paid out substantial sums in commissions and expenses at the commencement of coverage. By reducing this drain on surplus, the Page 430 U. S. 738 taxpayer was able to expand its business, resulting in a broader statistical base that permitted more accurate loss predictions. [Footnote 16] Through Treaty II, each taxpayer associated itself with a reinsurance company more experienced in the field. Moreover, under Treaty II, the taxpayers were shielded against a period of catastrophic losses. Even though the reinsurer would eventually recapture any such deep losses, it would be of substantial benefit to the ceding company to spread those payments out over a period of months or years. Both courts Page 430 U. S. 739 below that passed on Treaty II agreements found expressly that the treaties served valid and substantial nontax purposes. [Footnote 17] Tax considerations well may have had a good deal to do with the specific terms of the treaties, but even a "major motive" to reduce taxes will not vitiate an otherwise substantial transaction. United States v. Cumberland Pub. Serv. Co., 338 U. S. 451, 338 U. S. 455 (1950). [Footnote 18]IVWhether or not these were sham transactions, however, the Government would attribute the contested unearned premium reserves to the taxpayers, because it finds in § 801(c)(2) a rule that "insurance reserves follow the insurance risk." Brief for United States 34. This assertion, which forms the heart of the Government's case, is based on the following reasoning. Section 801 provides a convenient test for determining whether a company qualifies for favorable tax treatment as a life insurance company, a test determined wholly by the ratio of life reserves to total reserves. Reserves, under accepted accounting and actuarial standards, represent liabilities. Although often carelessly referred to as "reserve funds," or as being available to meet policyholder claims, reserves are not assets; they are entered on the liability side of the balance sheet. Under standard practice, they are mathematically equivalent to the gross unearned premium dollars already Page 430 U. S. 740 paid in, but conceptually the reserve a liability -- is distinct from the cash asset. This much of the argument is indisputably sound.The Government continues: since a reserve is a liability, it is simply an advance indicator of the final liability for the payment of claims. The company that finally will be responsible for paying claims -- the one that bears the ultimate risk -- should therefore be the one considered as having the reserves. In each of these cases, the Government argues, it was the taxpayer that assumed the ultimate risk. The other companies were merely paymasters holding on to the premium dollars until earned in return for a negligible percentage of the gross premiums.AWe may assume for present purposes that the taxpayers did take on all substantial risks under the treaties. [Footnote 19] And, in the broadest sense, reserves are, of course, set up because of future risks. Cf. Helvering v. Le Gierse, 312 U. S. 531, 312 U. S. 539 (1941). The question before us, however, is not whether the Government's position is sustainable as a matter of abstract logic. [Footnote 20] Rather it is whether Congress intended a "reserves follow the risk" rule to govern determinations under § 801. Page 430 U. S. 741There is no suggestion in the plain language of the section that this is the case. See nn. 1 and | 1 and S. 725fn4|>4, supra. If anything, the language is a substantial obstacle to accepting the Government's position. The word "risk" does not occur. Moreover, in § 801(c)(2), Congress used the phrase "unearned premiums," rather than "unearned premium reserve." The Government argues that, taken in context, "unearned premiums" must be regarded as referring to reserves -- to the liability account for unearned premium reserves, and not the asset represented by the premium dollars. We agree that the reference is to reserves, but still the use of the truncated phrase suggests that Congress intended a mechanical application of the concept. In other words, this phrase suggests that, in Congress' view, unearned premium reserves always would be found in the same place as the unearned premiums themselves. If so, reserves would follow mechanically the premium dollars, as taxpayers contend, and would not necessarily follow the risk. � 1 and S. 742�BThe rather sparse legislative history furnishes no better support for the Government's position. Under the early Revenue Acts, all insurance companies were taxed on the same basis as other corporations. Both investment income and premium or underwriting income were included in gross income, although there was a special deduction for additions to reserves. See, e.g., Revenue Act of 1918, § 234(a)(10), 40 Stat. 1079.By 1921, Congress became persuaded that this treatment did not accurately reflect the nature of the life insurance enterprise, since life insurance is often a form of savings for policyholders, similar in some respects to a bank deposit. See Hearings on H.R. 8245 before the Senate Committee on Finance, 67th Cong., 1st Sess., 83 (1921) (testimony of Dr. T. S. Adams, Tax Adviser to Treasury Department). Under this view, premium receipts "were not true income [to the life insurance company], but were analogous to permanent capital investment." Helvering v. Oregon Mutual Life Ins. Co., 311 U. S. 267, 311 U. S. 269 (1940). The 1921 Act therefore provided, for the first time, that life insurance companies would be taxed on investment income alone, and not on premium receipts. Revenue Act of 1921, §§ 242-245, 42 Stat. 261. The same rationale did not apply to other forms of insurance, and Congress continued to tax insurance companies other than life on both underwriting and investment income. §§ 246-247.The 1921 Act was thus built on the assumption that important differences between life and nonlife insurance called for markedly different tax treatment. Strict adherence to this policy rationale would dictate that any company insuring both types of risks be required to segregate its life and nonlife business so that appropriate tax rules could be applied to each. Congress considered this possibility, but chose instead Page 430 U. S. 743 a more convenient rule of thumb, [Footnote 21] the 50% reserve ratio test. [Footnote 22] The Treasury official primarily responsible for the 1921 Act explained:"Some companies mix with their life business accident and health insurance. It is not practicable for all companies to disassociate those businesses, so that we have assumed that, if this accident and health business was more than 50 per cent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental, and represented less than 50 percent of their business, we treated them as a life insurance company."1921 Hearings, supra at 85 (testimony of Dr. T. S. Adams). This passage constitutes the only significant reference to the test in the 1921 deliberations.In succeeding years, controversy developed over the preferential treatment enjoyed by life insurance companies. There were claims that they were not carrying their fair share of the tax burden. There were charges that stock companies were favored over mutuals, or vice versa. There was Page 430 U. S. 744 a nagging question over just how to compute a proper deduction for additions to reserves. Congress tried a host of different formulas to ameliorate these problems. See H.R.Rep. No. 34, 86th Cong., 1st Sess., 2-7 (1959); S.Rep. No. 291, 86th Cong., 1st Sess., 3-11 (1959); Alinco Life Ins. Co. v. United States, 178 Ct.Cl. 813, 831-837, 373 F.2d 336, 345-349 (1967). But throughout these years the 50% test was not significantly changed. [Footnote 23]In 1959, Congress passed legislation that finally established a permanent tax structure for life insurance companies. Life Insurance Company Income Tax Act of 1959, 73 Stat. 112. For the first time since 1921, not only investment income, but also a portion of underwriting income, was made subject to taxation. [Footnote 24] But even as Congress was rewriting the substantive provisions for taxing life insurance companies, it did not, despite occasional calls for change, [Footnote 25] make any relevant alterations in § 801. Moreover, the few references to that provision Page 430 U. S. 745 in the committee reports shed little light on the issue presented here. [Footnote 26] They contain no explicit or implicit support for a rule that reserves follow the risk.CMore important than anything that appears in hearings, reports, or debates is a provision added in 1959, § 820, concerning modified coinsurance contracts between life insurance companies. [Footnote 27] This section, although designed to deal with a Page 430 U. S. 746 problem different from the one presented here, is simply unintelligible if Congress thought that § 801 embodied an unvarying rule that reserves follow the risk.A conventional coinsurance contract is a particular form of indemnity reinsurance. [Footnote 28] The reinsurer agrees to reimburse the ceding company for a stated portion of obligations arising out of the covered policies. In return, the reinsurer receives a similar portion of all premiums received by the insurer, less a ceding commission to cover the insurer's overhead. The reinsurer sets up the appropriate reserve for its proportion of the obligation and, as is customary, the ceding company takes Page 430 U. S. 747 credit against its reserves for the portion of the risks reinsured. A modified coinsurance contract is a further variation in this esoteric area of insurance. As explained before the Senate Finance Committee, a modified form of coinsurance developed because some major reinsurers were not licensed to do business in New York, and New York did not permit a ceding company to take credit against its reserves for business reinsured with unlicensed companies. Hearings on H.R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 608 (1959) (statement of Henry F. Rood). Denial of credit places the ceding company in an undesirable position. It has depleted its assets by paying to the reinsurer the latter's portion of premiums, but its liability account for reserves remains unchanged. Few companies would accept the resulting drain on surplus, and unlicensed reinsurers wishing to retain New York business began offering a modified form of coinsurance contract. Obligations would be shared as before, but the ceding company, which must in any event maintain 10% of the reserves, would be permitted to retain and invest the assets backing the reserves. As consideration for this right of retention, modified coinsurance contracts require the ceding company to pay to the reinsurer, under a complicated formula, the investment income on the reinsurer's portion of the investments backing the reserve. See id. at 609; E. Wightman, Life Insurance Statements and Accounts 150-151 (1952); D. McGill, Life Insurance 43540 (rev. ed.1967).The 1959 legislation, as it passed the House, contained no special treatment for these modified contracts. The income involved therefore would have been taxed twice, once as investment income to the ceding company and then as underwriting income to the reinsurer. [Footnote 29] The Senate thought this double taxation inequitable, and therefore added § 820, to which the House agreed. That section provides that, for tax Page 430 U. S. 748 purposes, modified coinsurance contracts shall be treated the same as conventional coinsurance contracts if the contracting parties consent to such treatment. For consenting companies, Congress not only provided that gross investment income shall be treated as if it were received directly (in appropriate share) by the reinsurer, § 820(c)(1), but also expressly declared that the reserves "shall be treated as a part of the reserves of the reinsurer and not of the reinsured." § 820(c)(3).Under a modified coinsurance contract, the reinsurer bears the risk on its share of the obligations. Thus, if § 801 mandates that reserves follow the risk, the reinsurer could not escape being considered as holding its share of the reserve. Section 820(c)(3), providing for attribution of the reserves to the reinsurer, would be an elaborate redundancy. And although § 820(a)(2) specifics that attribution under § 820 is optional, requiring the consent of the parties, the parties would, in fact, have no option at all. Plainly, § 820 is incompatible with a view that § 801 embodies a rule that reserves follow the risk. [Footnote 30] Page 430 U. S. 749The Commissioner himself, interpreting § 801 in light of § 820, has implicitly acknowledged that reserves do not follow the risk. Rev.Rul. 70-508, 1970-2 Cum.Bull. 136. Advice was requested by the parties to a modified coinsurance contract who had not elected the special treatment available under § 820. The ceding company had carried the life insurance reserves on its books, although the reinsurer bore the ultimate risk. The ceding company wanted to know whether it could count those reserves in its ratio for purposes of § 801. Relying on § 801(b) and the Treasury Regulations implementing it, the Commissioner ruled that it could. A "reserves follow the risk" rule would have dictated precisely the opposite result.DSection 820 affords an unmistakable indication that § 801 does not impose the "reserves follow the risk" rule. Instead, Congress intended to rely on customary accounting and actuarial practices, leaving, as § 820 makes evident, broad discretion to the parties to a reinsurance agreement to negotiate their own terms. This does not open the door to widespread abuse."Congress was aware of the extensive, continuing supervision of the insurance industry by the states. It is obvious that subjecting the reserves to the scrutiny of the state regulatory agencies is an additional safeguard against overreaching by the companies."Mutual Benefit Life Ins. Co. v. Commissioner, 488 F.2d 1101, 1108 (CA3 1973), cert. denied, 419 U.S. 882 (1974). See Lamana-Panno-Fallo Industrial Ins. Co. v. Commissioner, 127 F.2d 56, 58-59 (CA5 1942); Alinco Life Ins. Co. v. United States, 178 Ct.Cl. at 831, 373 F.2d at 345. See also Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 328 U. S. 429-433 (1946); 15 U.S.C. § 1011 (McCarran-Ferguson Act). In presenting the 1959 legislation to the full House, members of the committee that drafted the bill were careful to underscore the continuing primacy of state Page 430 U. S. 750 regulation, with specific reference to the question of reserves. [Footnote 31] In two of the cases before us, the courts below expressly found that the reserves were held in accordance with accepted actuarial and accounting standards, [Footnote 32] while the third court did not address the issue. In all three, it was found that no state insurance department required any change in the way the taxpayers computed and reported their reserves. [Footnote 33] Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, we hold that § 801(c)(2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties. [Footnote 34]VThe Government argues that even if attribution of reserves is not required under § 801(c)(2), attribution is required Page 430 U. S. 751 under § 801(c)(3), counting in total reserves "all other insurance reserves required by law." See n 4, supra. Under state statutory law, the Government suggests, these taxpayers were required to set up and maintain the full unearned premium reserves.Our attention is drawn to no statute in any of the affected States that expressly requires this result. Instead the Government returns to its main theme and asserts, in essence, that certain general state statutory provisions embody the doctrine that reserves follow the risk. [Footnote 35] We would find it difficult to infer such a doctrine from the statutory provisions relied on by the Government even if there were no other indications to the contrary. But other indications are compelling. The insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be. [Footnote 36] It is well established Page 430 U. S. 752 that the consistent construction of a statute "by the agency charged with its enforcement is entitled to great deference by the courts." NLRB v. Boeing Co., 412 U. S. 67, 412 U. S. 75 (1973). See Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 409 U. S. 210 (1972); Udall v. Tallman, 380 U. S. 1, 380 U. S. 118 (1965); Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 139-140 (1944). This is no less the rule when federal courts are interpreting state law administered by state regulatory officials, [Footnote 37] at least where, as here, there is no reason to think that the state courts would construe the statute differently. We find no basis for holding that taxpayers were required by law, within the meaning of § 801(c)(3), to maintain the disputed unearned premium reserves. [Footnote 38] Page 430 U. S. 753VIFor the reasons stated, we hold for the taxpayers. The judgments in Nos. 75-1221 and 75-1285 are affirmed. The judgment in No. 71260 is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Consumer Life Ins. Co., 430 U.S. 725 (1977)United States v. Consumer Life Insurance Co.No. 75-1221Argued December 6, 1976Decided April 26, 1977*430 U.S. 725SyllabusUnder § 801(a) of the Internal Revenue Code of 1954, an insurance company is considered a life insurance company for federal tax purposes if its life insurance reserves constitute more than 50% of its "total reserves," as that term is defined in § 801(c). Qualifying companies are accorded preferential tax treatment. The question here is how unearned premium reserves for accident and health (nonlife) insurance policies should be allocated between a primary insurer and a reinsurer for purposes of applying the 50% test. The unearned premium reserve is the basic insurance reserve in the casualty insurance business, and an important component of "total reserves" under § 801(c)(2). The taxpayers contend that, by virtue of certain reinsurance agreements ("treaties"), they have maintained nonlife reserves below the 50% level. These treaties were of two basic types: (1) Treaty I, whereby the taxpayer served as reinsurer, and the "other party" was the primary insurer or ceding company; and (2) Treaty II, whereby the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," the reinsurer. Both types of treaties provided that the other party would hold the premium dollars derived from accident and health business until such time as the premiums were "earned," i.e., attributable to the insurance protection provided during the portion of the policy term already elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement, even though the taxpayer assumed all substantial insurance risks. In each case, the taxpayer and the other party reported their affairs annually in this way to both the Internal Revenue Service and the appropriate state insurance departments. Despite the state authorities' acceptance of these annual statements, the Page 430 U. S. 726 Government argues that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties to the taxpayers, with the result that the taxpayers fail the 50% test, and thus are disqualified from preferential tax treatment, primarily because, in the Government's view, § 801 embodies a rule that "insurance reserves follow the insurance risk."Held:1. The reinsurance treaties served valid business purposes, and, contrary to the Government's argument, were not sham transactions without economic substance. Pp. 430 U. S. 736-739.2. Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, § 801(c)(2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties. Pp. 430 U. S. 739-750.(a) The language of § 801(c)(2) does not suggest that Congress intended a "reserves follow the risk" rule to govern determinations under § 801. Pp. 430 U. S. 740-741.(b) Nor does the legislative history of § 801 furnish support for the Government's interpretation. Pp. 430 U.S. 742-745.(c) Section 820 of the Code, prescribing the tax treatment of modified coinsurance contracts, affords an unmistakable indication that Congress did not intend § 801 to embody a "reserves follow the risk" rule. Pp. 430 U. S. 745-7503. Nor is attribution of unearned premium reserves to the taxpayers required under § 801(c)(3), counting in total reserves "all other insurance reserves required by law." There is no indication that state statutory law in these cases required the taxpayers to set up and maintain the contested unearned premium reserves, especially since the insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be. Pp. 430 U. S. 750-752.No. 75-1221, 207 Ct.Cl. 638, 524 F.2d 1167, and No. 75-1285, 207 Ct.Cl. 594, 524 F.2d 1155, affirmed; No. 75-1260, 514 F.2d 675, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 430 U. S. 753. Page 430 U. S. 727