1. The limited statutory exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant legislative objective of the FOIA. Pp. 360-362.
2. Exemption 2 does not generally apply to matters, such as the summaries here involved, in which there is a genuine and important public interest. Pp. 362-370.
(a) The phrasing of that exemption reflected congressional dissatisfaction with the "internal management" exemption of former 3 of the Administrative Procedure Act and was generally designed, as the Senate Report made clear, to delineate between, on the one hand, trivial matters and, on the other, more substantial matters in which the public might have a legitimate interest. Pp. 362-367.
(b) The public has a substantial concern with the Academy's administration of discipline and procedures that affect the training of Air Force officers and their military careers. Pp. 367-369.
3. Exemption 6 does not create a blanket exemption for personnel files. With respect to such files and "similar files" Congress enunciated a policy, to be judicially enforced, involving a balancing of public and private interests. Regardless of whether the documents whose disclosure is sought are in "personnel" or "similar" files, nondisclosure is not sanctioned unless there is a showing of a clearly unwarranted invasion of personal privacy, and redaction of documents to permit disclosure of nonexempt portions is appropriate under Exemption 6. Pp. 370-376.
4. Even if "personnel files" were to be considered as wholly exempt from disclosure under Exemption 6 without regard to whether disclosure would constitute a clearly unwarranted invasion of personal privacy, the case summaries here were not in that category although they constituted "similar files" relating as they [425 U.S. 352, 354] do to the discipline of cadets, and their disclosure implicating similar privacy values. Pp. 376-377.
5. The Court of Appeals did not err in ordering the Agency to produce the case summaries for the District Court's in camera examination, a procedure that represents "a workable compromise between individual rights `and the preservation of public rights to [G]overnment information,'" which is the statutory goal of Exemption 6. Pp. 378-381.
(a) The limitation in Exemption 6 to cases of "clearly unwarranted" invasions of privacy indicates that Congress did not intend a matter to be exempted from disclosure merely because it could not be guaranteed that disclosure would not trigger recollection of identity in any person whatever, and Congress vested the courts with the responsibility of determining de novo whether the exemption was properly invoked. Pp. 378-380.
(b) Respondents' request for access to summaries "with personal references or other identifying information deleted" respected the confidentiality interests embodied in Exemption 6 and comported with the Academy's tradition of confidentiality. Pp. 380-381.
BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 382, BLACKMUN, J., post, p. 385, and REHNQUIST, J., post, p. 389, filed dissenting opinions. STEVENS, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Friedman argued the cause for petitioners. With him on the briefs were Solicitor General Bork, Assistant Attorney General Lee, Acting Assistant Attorney General Jaffe, Allan Abbot Tuttle, Leonard Schaitman, and Donald Etra.
Barrington D. Parker, Jr., argued the cause for respondents. With him on the brief were Melvin L. Wulf and John H. F. Shattuck.
We granted certiorari, 420 U.S. 923 (1975). We affirm.
The District Court made factual findings respecting the administration of the Honor and Ethics Codes at the Academy. See Pet. for Cert. 28A-29A, nn. 5, 6. Under the Honor Code enrolled cadets pledge: "We will not lie, steal, or cheat, nor tolerate among us anyone [425 U.S. 352, 359] who does." The Honor Code is administered by an Honor Committee composed of Academy cadets. Suspected violations of the Code are referred to the Chairman of the Honor Committee, who appoints a three-cadet investigatory team which, with advice from the legal adviser, evaluates the facts and determines whether a hearing before an Honor Board of eight cadets, is warranted. If the team finds no hearing warranted, the case is closed. If it finds there should be a hearing, the accused cadet may call witnesses to testify in his behalf, and each cadet squadron may ordinarily send two cadets to observe.
The Board may return a guilty finding only upon unanimous vote. If the verdict is guilty, under certain circumstances the Board may grant the guilty cadet "discretion," for which a vote of six of the eight members is required. A verdict of guilty with discretion is equivalent to a not-guilty finding in that the cadet is returned to his cadet squadron in good standing. A verdict of guilty without discretion results in one of three alternative dispositions: the cadet may resign from the Academy, request a hearing before a Board of Officers, or request a trial by court-martial.
At the announcement of the verdict, the Honor Committee Chairman reminds all cadets present at the hearing that all matters discussed at the hearing are confidential and should not be discussed outside the room with anyone other than an honor representative. A case summary consisting of a brief statement, usually only one page, of the significant facts is prepared by the Committee. As we have said, copies of the summaries are posted on 40 squadron bulletin boards throughout the Academy, and distributed among Academy faculty and administration officials. Cadets are instructed not to read the summaries, unless they have a need, beyond mere curiosity, to know their contents, and the reading [425 U.S. 352, 360] files are covered with a notice that they are "for official use only." Case summaries for not-guilty and discretion cases are circulated with names deleted; in guilty cases, the guilty cadet's name is not deleted from the summary, but posting on the bulletin boards is deferred until after the guilty cadet has left the Academy.
Ethics Code violations are breaches of conduct less serious than Honor Code violations, and administration of Ethics Code cases is generally less structured, though similar. In many instances, ethics cases are handled informally by the cadet squadron commander, the squadron ethics representative, and the individual concerned. These cases are not necessarily written up and no complete file is maintained; a case is written up and the summary placed in back of the Honor Code reading files only if it is determined to be of value for the cadet population. Distribution of Ethics Code summaries is substantially the same as that of Honor Code summaries, and their confidentiality, too, is maintained by Academy custom and practice.
"Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands. Subsection (b) is part of this scheme and represents the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses. As the Senate Committee explained, it was [425 U.S. 352, 362] not `an easy task to balance the opposing interests, but it is not an impossible one either. . . . Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.' S. Rep. No. 813, p. 3."
Mindful of the congressional purpose, we then turn to consider whether mandatory disclosure of the case summaries is exempted by either of the exemptions involved here, discussing, first, Exemption 2, and, second, Exemption 6.
The phrasing of Exemption 2 is traceable to congressional dissatisfaction with the exemption from disclosure under former 3 of the Administrative Procedure Act of "any matter relating solely to the internal management of an agency." 5 U.S.C. 1002 (1964 ed.). The sweep of that wording led to withholding by agencies from disclosure of matter "rang[ing] from the important to the insignificant." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 5 (1966) (hereinafter H. R. Rep. No. 1497). An earlier effort at minimizing this sweep, S. 1666 introduced in the 88th Congress in 1963, applied the "internal management" exemption only to matters required to be published in the Federal Register; agency orders and records were exempted from other public disclosure only when the information related "solely to the internal personnel rules and practices of any agency." The distinction was highlighted in the Senate Report on S. 1666 by reference to the latter as the "more tightly drawn" exempting language. S. Rep. No. 1219, 88th Cong., 2d Sess., 12 (1964).
No final action was taken on S. 1666 in the 88th Congress; the Senate passed the bill, but it reached the [425 U.S. 352, 363] House too late for action. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18 n. 18 (1974). But the bill introduced in the Senate in 1965 that became law in 1966 dropped the "internal management" exemption for matters required to be published in the Federal Register and consolidated all exemptions into a single subsection. Thus, legislative history plainly evidences the congressional conclusion that the wording of Exemption 2, "internal personnel rules and practices," was to have a narrower reach than the Administrative Procedure Act's exemption for "internal management" matters.
"Exemption No. 2 relates only to the internal personnel rules and practices of an agency. Examples of these may be rules as to personnel's use of parking facilities or regulations of lunch hours, statements of policy as to sick leave, and the like." S. Rep. No. 813, p. 8.
"2. Matters related solely to the internal personnel rules and practices of any agency: Operating rules, guidelines, and manuals of procedure for Government investigators or examiners would be exempt from disclosure, but this exemption would not cover all `matters of internal management' such as employee relations and working conditions and routine administrative procedures which are withheld under the present law." H. R. Rep. No. 1497, p. 10.
Almost all courts that have considered the difference between the Reports have concluded that the Senate Report more accurately reflects the congressional purpose. 5 [425 U.S. 352, 364] Those cases relying on the House, rather than the Senate, interpretation of Exemption 2, and permitting agency withholding of matters of some public interest, have done so only where necessary to prevent the circumvention of agency regulations that might result from disclosure to the subjects of regulation of the procedural manuals and guidelines used by the agency in discharging its regulatory function. See, e. g., Tietze v. Richardson, 342 F. Supp. 610 (SD Tex. 1972); Cuneo v. Laird, 338 F. Supp. 504 (DC 1972), rev'd on other grounds sub nom. Cuneo v. Schlesinger, 157 U.S. App. D.C. 368, 484 F.2d 1086 (1973); City of Concord v. Ambrose, 333 F. Supp. 958 (ND Cal. 1971) (dictum). Moreover, the legislative history indicates that this was the primary concern of the committee drafting the House Report. See Hearings on H. R. 5012 before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 29-30 (1965), cited in H. R. Rep. No. 1497, p. 10 n. 14. We need not consider in this case the applicability of Exemption 2 in such circumstances, however, because, as the Court of Appeals recognized, this is not a case "where knowledge of administrative procedures might help outsiders to circumvent regulations or standards. Release of the [sanitized] summaries, which constitute quasi-legal records, poses no such danger to the effective operation of the Codes at the Academy." 495 F.2d, at 265 (footnote omitted). Indeed, the materials sought in this case are distributed to the [425 U.S. 352, 365] subjects of regulation, the cadets, precisely in order to assure their compliance with the known content of the Codes.
"Congress intended that Exemption 2 be interpreted narrowly and specifically. In our view, the House Report carries the potential of exempting a wide swath of information under the category of `operating rules, guidelines, and manuals of procedure. . . .' The House Report states that the exemption `would not cover all "matters of internal management" such as employee relations and working conditions and routine administrative procedures . . .' and yet it gives precious little guidance as to which matters are covered by the exemption and which are not. Although it is equally terse, the Senate Report indicates that the line sought to be drawn is one between minor or trivial matters and those more substantial matters which might be the subject of legitimate public interest.
"This is a standard, a guide, which an agency and then a court, if need be, can apply with some certainty, consistency and clarity. . . .
"Reinforcing this interpretation is `the clear legislative intent [of the FOIA] to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests.' [425 U.S. 352, 366] [Soucie v. David, 145 U.S. App. D.C. 144, 157, 448 F.2d 1067, 1080 (1971)]. As a result, we have repeatedly stated that `[t]he policy of the Act requires that the disclosure requirements be construed broadly, the exemptions narrowly.' [Ibid.; Vaughn v. Rosen, 157 U.S. App. D.C. 340, 343, 484 F.2d 820, 823 (1973).] Thus, faced with a conflict in the legislative history, the recognized principal purpose of the FOIA requires us to choose that interpretation most favoring disclosure.
"The second major consideration favoring reliance upon the Senate Report is the fact that it was the only committee report that was before both houses of Congress. The House unanimously passed the Senate Bill without amendment, therefore no conference committee was necessary to reconcile conflicting provisions. . . .
". . . [W]e as a court viewing the legislative history must be wary of relying upon the House Report, or even the statements of House sponsors, where their views differ from those expressed in the Senate. As Professor Davis said: `The basic principle is quite elementary: The content of the law must depend upon the intent of both Houses, not of just one.' [See generally K. Davis, Administrative Law Treatise 3A.31, p. 175 (1970 Supp.).] By unanimously passing the Senate Bill without amendment, the House denied both the Senate Committee and the entire Senate an opportunity to object (or concur) to the interpretation written into the House Report (or voiced in floor colloquy). This being the case, we choose to rely upon the Senate Report."
For the reasons stated by Judge Wilkey, and because we think the primary focus of the House Report was on exemption of disclosures that might enable the regulated [425 U.S. 352, 367] to circumvent agency regulation, we too "choose to rely upon the Senate Report" in this regard.
The District Court had also concluded in this case that the Senate Report was "the surer indication of congressional intent." Pet. for Cert. 34A n. 21. The Court of Appeals found it unnecessary to take "a firm stand on the issue," concluding that "the difference of approach between the House and Senate Reports would not affect the result here." 495 F.2d, at 265. The different conclusions of the two courts in applying the Senate Report's interpretation centered upon a disagreement as to the materiality of the public significance of the operation of the Honor and Ethics Codes. The District Court based its conclusion on a determination that the Honor and Ethics Codes "[b]y definition . . . are meant to control only those people in the agency. . . . The operation of the Honor Code cannot possibly affect anyone outside its sphere of voluntary participation which is limited by its function and its publication to the Academy." Pet. for Cert. 34A. The Court of Appeals on the other hand concluded that under "the Senate construction of Exemption Two, [the] case summaries . . . clearly fall outside its ambit" because "[s]uch summaries have a substantial potential for public interest outside the Government." 495 F.2d, at 265.
"[Respondents] have drawn our attention to various [425 U.S. 352, 369] items such as newspaper excerpts, a press conference by an Academy officer and a White House Press Release, which illustrate the extent of general concern with the working of the Cadet Honor Code. As the press conference and the Press Release show, some of the interest has been generated - or at least enhanced - by acts of the Government itself. Of course, even without such official encouragement, there would be interest in the treatment of cadets, whose education is publicly financed and who furnish a good portion of the country's future military leadership. Indeed, all sectors of our society, including the cadets themselves, have a stake in the fairness of any system that leads, in many instances, to the forced resignation of some cadets. The very study involved in this case bears additional witness to the degree of professional and academic interest in the Academy's student-run system of discipline. . . . [This factor] differentiate[s] the summaries from matters of daily routine like working hours, which, in the words of Exemption Two, do relate `solely to the internal personnel rules and practices of an agency.'" 495 F.2d, at 265 (emphasis in Court of Appeals opinion).
Additional questions are involved in the determination whether Exemption 6 exempts the case summaries from mandatory disclosure as "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The first question is whether the clause "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" modifies "personnel and medical files" or only "similar files." The Agency argues that Exemption 6 distinguishes "personnel" from "similar" files, exempting all "personnel files" but only those "similar files" whose disclosure constitutes "a [425 U.S. 352, 371] clearly unwarranted invasion of personal privacy," and that the case summaries sought here are "personnel files." On this reading, if it is determined that the case summaries are "personnel files," the Agency argues that judicial inquiry is at an end, and that the Court of Appeals therefore erred in remanding for determination whether disclosure after redaction would constitute "a clearly unwarranted invasion of personal privacy."
The Agency did not argue its suggested distinction between "personnel" and "similar" files to either the District Court or the Court of Appeals, and the opinions of both courts treat Exemption 6 as making no distinction between "personnel" and "similar" files in the application of the "clearly unwarranted invasion of personal privacy" requirement. The District Court held that "[i]t is only the identifying connection to the individual that casts the personnel, medical, and similar files within the protection of [the] sixth exemption." Pet. for Cert. 30A-31A. The Court of Appeals stated: "[W]e are dealing here with `personnel' or `similar files.' But the key words, of course, are `a clearly unwarranted invasion of personal privacy' . . . ." 495 F.2d, at 266.
We agree with these views, for we find nothing in the wording of Exemption 6 or its legislative history to support the Agency's claim that Congress created a blanket exemption for personnel files. Judicial interpretation has uniformly reflected the view that no reason would exist for nondisclosure in the absence of a showing of a clearly unwarranted invasion of privacy, whether the documents are filed in "personnel" or "similar" files. See, e. g., Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 135 (CA3 1974); Rural Housing Alliance v. United States Dept. of Agriculture, 162 U.S. App. D.C. 122, 126, 498 F.2d 73, 77 (1974); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973); Getman v. NLRB, 146 U.S. [425 U.S. 352, 372] App. D.C. 209, 213, 450 F.2d 670, 674 (1971). Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by an agency in its "personnel" files. Rather, Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act "to open agency action to the light of public scrutiny." The device adopted to achieve that balance was the limited exemption, where privacy was threatened, for "clearly unwarranted" invasions of personal privacy.
"Exemption (6) of the Act covers `. . . medical files . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.' Where a purely medical file is withheld under authority of Exemption (6), it will be for the District Court ultimately to determine any dispute as to whether that exemption was properly invoked." Ackerly v. Ley, 137 U.S. App. D.C. 133, 136-137, n. 3, 420 F.2d 1336, 1339-1340, n. 3 (1969) (ellipses in original).
See also Wine Hobby USA, Inc. v. IRS, supra, at 135.
"to look beneath the label on a file or record when the withholding of information is challenged. . . .
The remarks of Senator Kennedy, a principal sponsor of the amendments, make the matter even clearer.
"For example, deletion of names and identifying characteristics of individuals would in some cases serve the underlying purpose of exemption 6, which exempts `personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.'" 120 Cong. Rec. 17018 (1974).
In so specifying, Congress confirmed what had perhaps been only less clear earlier. For the Senate and House Reports on the bill enacted in 1966 noted specifically that Health, Education, and Welfare files, Selective Service files, or Veterans' Administration files, which as the Agency here recognizes 13 were clearly included within the congressional conception of "personnel files," 14 were nevertheless intended to be subject to mandatory disclosure in redacted form if privacy could be sufficiently protected. As the House Report states, H. R. [425 U.S. 352, 376] Rep. No. 1497, p. 11: "The exemption is also intended to cover detailed Government records on an individual which can be identified as applying to that individual and not the facts concerning the award of a pension or benefit or the compilation of unidentified statistical information from personal records." Similarly, the Senate Report emphasized, S. Rep. No. 813, p. 9: "For example, health, welfare, and selective service records are highly personal to the person involved, yet facts concerning the award of a pension or benefit should be disclosed to the public."
The Agency argues secondly that, even taking the case summaries as files to which the "clearly unwarranted invasion of personal privacy" qualification applies, the Court of Appeals nevertheless improperly ordered the Agency to produce the case summaries in the District Court for in camera examination to eliminate information that could result in identifying cadets involved in Honor or Ethics Code violations. The argument is, in substance, that the recognition by the Court of Appeals of "the harm that might result to the cadets from disclosure" itself demonstrates "[t]he ineffectiveness of excision of names and other identifying facts as a means of maintaining the confidentiality of persons named in government reports . . . ." Brief for Petitioners 17-18.
This contention has no merit. First, the argument implies that Congress barred disclosure in any case in which the conclusion could not be guaranteed that disclosure would not trigger recollection of identity in any person whatever. But this ignores Congress' limitation of the exemption to cases of "clearly unwarranted" 16 invasions [425 U.S. 352, 379] of personal privacy. 17 Second, Congress vested the courts with the responsibility ultimately to determine "de novo" any dispute as to whether the exemption was properly invoked in order to constrain agencies from withholding nonexempt matters. 18 No court has yet seen the case [425 U.S. 352, 380] histories, and the Court of Appeals was therefore correct in holding that the function of examination must be discharged in the first instance by the District Court. Ackerly v. Ley, 137 U.S. App. D.C. 133, 420 F.2d 1336 (1969); Rural Housing Alliance v. United States Dept. of Agriculture, supra.
In striking the balance whether to order disclosure of all or part of the case summaries, the District Court, in determining whether disclosure will entail a "clearly unwarranted" invasion of personal privacy, may properly discount its probability in light of Academy tradition to keep identities confidential within the Academy. 19 Respondents sought only such disclosure as was consistent with this tradition. Their request for access to summaries "with personal references or other identifying information deleted," respected the confidentiality interests embodied in Exemption 6. As the Court of Appeals recognized, however, what constitutes identifying information regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar, as fellow cadets or Academy staff, with other aspects of his career at the Academy. Despite the summaries' distribution within the Academy, many of this group with earlier access to summaries may never have identified a particular [425 U.S. 352, 381] cadet, or may have wholly forgotten his encounter with Academy discipline. And the risk to the privacy interests of a former cadet, particularly one who has remained in the military, posed by his identification by otherwise unknowing former colleagues or instructors cannot be rejected as trivial. We nevertheless conclude that consideration of the policies underlying the Freedom of Information Act, to open public business to public view when no "clearly unwarranted" invasion of privacy will result, requires affirmance of the holding of the Court of Appeals, 495 F.2d, at 267, that although "no one can guarantee that all those who are `in the know' will hold their tongues, particularly years later when time may have eroded the fabric of cadet loyalty," it sufficed to protect privacy at this stage in these proceedings by enjoining the District Court, id., at 268, that if in its opinion deletion of personal references and other identifying information "is not sufficient to safeguard privacy, then the summaries should not be disclosed to [respondents]." We hold, therefore, in agreement with the Court of Appeals, "that the in camera procedure [ordered] will further the statutory goal of Exemption Six: a workable compromise between individual rights `and the preservation of public rights to Government information.'" Id., at 269.
To be sure, redaction cannot eliminate all risks of identifiability, as any human approximation risks some degree of imperfection, and the consequences of exposure of identity can admittedly be severe. But redaction is a familiar technique in other contexts 20 and exemptions to disclosure under the Act were intended to be practical [425 U.S. 352, 382] workable concepts, EPA v. Mink, 410 U.S., at 79 ; S. Rep. No. 813, p. 5; H. R. Rep. No. 1497, p. 2. Moreover, we repeat, Exemption 6 does not protect against disclosure every incidental invasion of privacy - only such disclosures as constitute "clearly unwarranted" invasions of personal privacy.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
[ Footnote 1 ] Respondent Michael T. Rose, a graduate of the United States Air Force Academy and at that time a First Lieutenant in the Air Force, was the student editor charged with preparing the study. It finally appeared as a book, M. Rose, A Prayer for Relief: The Constitutional Infirmities of the Military Academies' Conduct, Honor and Ethics Systems (NYU 1973). Respondents Lawrence B. Pedowitz and Charles P. Diamond were, at the time this suit was filed, respectively the former and current Editor-in-Chief of the Review.
[ Footnote 2 ] Upon respondent Rose's request for documents, Academy officials gave him copies of the Honor Code, the Honor Reference Manual, Lesson Plans, Honor Hearing Procedures, and various other materials explaining the Honor and Ethics Codes. They denied him access to the case summaries, however, on the grounds that even with the names deleted "[s]ome cases may be recognized by the reader by the circumstances alone without the identity of the cadet given" and "[t]here is no way of determining just how these facts will be or could be used." App. 21, 155. On appeal to the Secretary of the Air Force, the Secretary, by letter from his Administrative Assistant, refused disclosure of the case summaries on the ground that they were exempted from disclosure by Exemption 6 of the Freedom of Information Act, 5 U.S.C. 552 (b) (6), and by Air Force Regulations 12-30, §§ 4 (f) and 4 (g) (1) (b), 32 CFR 806.5 (f), (g) (1) (ii) (1974), App. 21, 121-122.
"(3) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.
"(4) (A) . . . .
"(B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
"Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
"(c) This section does not authorize withholding of information [425 U.S. 352, 357] or limit the availability of records to the public, except as specifically stated in this section. . . ."
[ Footnote 4 ] Respondents also sought access to a complete study of resignations of Academy graduates from the Air Force. The Agency claimed that the study was exempted from disclosure by 5 U.S.C. 552 (b) (5), concerning "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." The District Court held that since the study had already been offered for dissemination to the public the Agency had waived its rights under the exemption, and accordingly it granted respondents partial summary judgment, requiring the Agency to disclose the complete study to respondents. Pet. for Cert. 35A-38A. The Agency complied with this order.
[ Footnote 5 ] E. g., Stokes v. Brennan, 476 F.2d 699, 703 (CA5 1973); Hawkes v. IRS, 467 F.2d 787, 796 (CA6 1972); Stern v. Richardson, 367 F. Supp. 1316, 1320 (DC 1973); Consumers Union of United States, Inc. v. Veterans Administration, 301 F. Supp. 796, 801 (SDNY 1969), appeal dismissed as moot, 436 F.2d 1363 (CA2 1971); Benson v. GSA, 289 F. Supp. 590, 595 (WD Wash. 1968), aff'd, 415 F.2d 878 (CA9 1969) (Exemption 2 apparently not raised on appeal).
"Former Secretary of War, Newton Baker, said, `. . . the inexact or untruthful soldier trifles with the lives of his fellow men and with the honor of his government. . . .' The young officer needs to be able to trust his men as does any commander. In these times of expensive and increasingly complex weapons systems, the officer must rely on fellow officers and airmen for his own safety and the safety of his men." App. 47.
[ Footnote 7 ] See, e. g., Note, the Freedom of Information Act: A Seven-Year Assessment, 74 Col. L. Rev. 895, 956 (1974); Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417, 445 (1965). See also Vaughn v. Rosen, 173 U.S. App. D.C. 187, 201, 523 F.2d 1136, 1150 (1975) (Leventhal, J., concurring).
[ Footnote 8 ] The Agency suggests that the disclosure of the identities of disciplined cadets through release of the case summaries will weaken the Honor and Ethics Codes, principally because other cadets will be less likely to report misconduct if they cannot be assured of the absolute confidentiality of their reports. But even assuming that this speculation raises an argument under Exemption 2 - rather than Exemption 6 alone - it is unpersuasive in light of the deletion process ordered by the Court of Appeals to be conducted on remand.
"At the same time that a broad philosophy of `freedom of information' is enacted into law, it is necessary to protect certain equally [425 U.S. 352, 373] important rights of privacy with respect to certain information in Government files, such as medical and personnel records . . . .
"It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure."
[ Footnote 10 ] See generally H. R. Rep. No. 1497, p. 11: "A general exemption for the category of information is much more practical than separate statutes protecting each type of personal record. The limitation of a `clearly unwarranted invasion of personal privacy' provides a proper balance . . . ." (Emphasis supplied.) The Senate Report, as well, speaks of a "general exemption" which is "held within bounds by the use of the limitation of `a clearly unwarranted invasion of personal privacy.'" S. Rep. No. 813, p. 9.
"To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction."
[ Footnote 12 ] The Senate Report on this amendment cited with evident approval the decision of the Court of Appeals in this case remanding to the District Court for redaction of the case summaries to accommodate the dual interests. S. Rep. No. 93-854, pp. 31-32 (1974).
[ Footnote 13 ] Brief for Petitioners 13-16.
[ Footnote 14 ] There is sparse legislative history as to the precise scope intended for the term "personnel files," a detail which itself suggests that Congress intended that particular characterization not to be critical in the application of Exemption 6. But it is quite clear from the committee reports that the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters in such files as those maintained by the Department of Health, Education, and Welfare, the Selective Service, and the Veterans' Administration. S. Rep. No. 813, p. 9; H. R. Rep. No. 1497, p. 11. Moreover, the Senate Report on S. 1666, the principal source for the bill ultimately enacted as the Freedom of Information Act, and Exemption 6 in particular, specifically refers to such files as "personnel files." S. Rep. No. 1219, 88th Cong., 2d Sess., 14 (1964). See also Hearings on H. R. 5012 before a Sub-committee of the House Committee on Government Operations, 89th Cong., 1st Sess., 265, 267 (analysis of agency comments on S. 1666) (1965).
[ Footnote 15 ] Air Force Regulations in force at the time of the decisions below drew a distinction between "personnel and medical files," 32 CFR 806.5 (f) (1974), and "files similar to medical and personnel files," 32 CFR 806.5 (g) (1974), which clearly categorized case summaries among the latter: "Examples of similar files are those: . . . containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken or has been taken." 32 CFR 806.5 (g) (1) (ii) (1974), 36 Fed. Reg. 4701 (1971) (emphasis supplied). After the Court of Appeals' decision, these regulations were amended, inter alia deleting the last four words, 32 CFR 806.23 (f) (1) (ii), 40 Fed. Reg. 7904 (1975), but this alteration is in any event insignificant to the point here.
[ Footnote 16 ] The addition of this qualification was a considered and significant determination. Robles v. EPA, 484 F.2d 843, 846 (CA4 1973); Getman v. NLRB, 146 U.S. App. D.C. 209, 213, 450 F.2d 670, 674 (1971). The National Labor Relations Board and the Treasury Department urged at the hearings on the Act that the "clearly" or "clearly unwarranted" qualification in Exemption 6 be deleted. See Hearings on S. 1160 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 36 (Treasury), 491 (NLRB) (1965); Hearings on H. R. 5012 before a Subcommittee of the House Committee on Government Operations, 89th Cong., 1st Sess., 56, 230 (Treasury), 257 (NLRB) (1965). See also Hearings on S. 1160, supra, at 417 (Department of Defense; objecting to "heavy" burden of showing a clearly unwarranted invasion of personal privacy). But see also Hearings on H. R. 5012, supra, at 151 (testimony of Clark R. Mollenhoff, Vice Chairman, Sigma Delta Chi Committee for [425 U.S. 352, 379] Advancement of Freedom of Information; advocating the retention of "clearly" in Exemption 6). The terms objected to were nevertheless retained, as a "proper balance," H. R. Rep. No. 1497, p. 11, to keep the "scope of the exemption . . . within bounds," S. Rep. No. 813, p. 9.
The legislative history of the 1974 amendment of Exemption 7, which applies to investigatory files compiled for law enforcement purposes, stands in marked contrast. Under H. R. 12471, 93d Cong., 2d Sess. (1974), as originally amended and passed by the Senate, 120 Cong. Rec. 17033, 17040, 17047 (1974), although not as originally passed by the House, 120 Cong. Rec. 6819-6820 (1974), Exemption 7 was amended to exempt investigatory files compiled for law enforcement purposes only to the extent that their production would "constitute a clearly unwarranted invasion of personal privacy" or meet one of several other conditions. In response to a Presidential request to delete "clearly unwarranted" from the amendment in the interests of personal privacy, the Conference Committee dropped the "clearly," 120 Cong. Rec. 33158-33159 (letters between President Ford and Sen. Kennedy), 34162 (letters between President Ford and Cong. Moorhead) (1974), and the bill was enacted as reported by the conference committee, 88 Stat. 1563.
[ Footnote 17 ] The Court of Appeals held that the argument raised by the Agency that courts have a broad equitable power to decline to order release when disclosure would damage the public interest was not a substantial one in the context of Exemption 6, since that exemption itself requires a court to exercise a large measure of discretion. 495 F.2d, at 269. The Agency has not renewed this argument in this Court.
[ Footnote 18 ] 5 U.S.C. 552 (a) (4) (B) (1970 ed., Supp. V). One of the prime shortcomings of 3 of the Administrative Procedure Act, in the view of the Congress which passed the Freedom of Information Act, was precisely that it provided no judicial remedy for the unauthorized withholding of agency records. EPA v. Mink, 410 U.S. 73, 79 (1973).
[ Footnote 19 ] The legislative history is clear that Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities. The House Report explains that the exemption was intended to exclude files "the disclosure of which might harm the individual . . . [and] detailed Government records on an individual which can be identified as applying to that individual . . . ." H. R. Rep. No. 1497, p. 11 (emphasis supplied). And the Senate Report states that the balance to be drawn under Exemption 6's "clearly unwarranted invasion of personal privacy" clause is one between "the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information." S. Rep. No. 813, p. 9 (emphasis supplied).
[ Footnote 20 ] The Court of Appeals cited as examples Revenue Rulings collected in the Cumulative Bulletin of the Internal Revenue Service, and American Bar Association, Opinions on Professional Ethics (1967). 495 F.2d, at 268 n. 18.
MR. CHIEF JUSTICE BURGER, dissenting.
If "hard cases make bad law," unusual cases surely have the potential to make even worse law. Today, on the basis of a highly unusual request for information about a unique governmental process, a military academy honor system, the Court interprets definitively a substantial and very significant part of a major federal statute governing the balance between the public's "right to know" and the privacy of the individual citizen.
In my view, the Court makes this case carry too much jurisprudential baggage. Consequently, the basic congressional intent to protect a reasonable balance between the availability of information in the custody of the Government and the particular individual's right of privacy is undermined. In addition, district courts are burdened with a task Congress could not have intended for them.
(1) This case does not compel us to decide whether the summaries at issue here are "personnel files" or whether files so categorized are beyond the proviso of Exemption 6 that disclosure constitute "a clearly unwarranted invasion of personal privacy." Even assuming, arguendo, that the Government must show that the summaries are subject to the foregoing standard, it is quite [425 U.S. 352, 383] clear, in my view, that the disclosure of the material at issue here constitutes such an invasion, no matter what excision process is attempted by a federal judge.
The Court correctly notes that Congress, in enacting Exemption 6, intended to strike "a proper balance between the protection of the individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966). Having acknowledged the necessity of such a balance, however, the Court, in my view, blandly ignores and thereby frustrates the congressional intent by refusing to weigh, realistically, the grave consequences implicit in release of this particular information, in any form, against the relatively inconsequential claim of "need" for the material alleged in the complaint.
The opinions of this Court have long recognized the opprobrium which both the civilian and the military segments of our society attribute to allegations of dishonor among commissioned officers of our Armed Forces. See, e. g., Parker v. Levy, 417 U.S. 733, 744 (1974), quoting Orloff v. Willoughby, 345 U.S. 83, 91 (1953). The stigma which our society imposes on the individual who has accepted such a position of trust 1 and abused it is not erasable, in any realistic sense, by the passage of time [425 U.S. 352, 384] or even by subsequent exemplary conduct. The absence of the broken sword, the torn epaulets, and the Rogue's March from our military ritual does not lessen the indelibility of the stigma. Significantly, cadets and midshipmen - "inchoate officers" 2 - have traditionally been held to the same high standards and subjected to the same stigma as commissioned officers when involved in matters with overtones of dishonor. 3 Indeed, the mode of punitive separation as the result of court-martial is the same for both officers and cadets - dismissal. United States v. Ellman, 9 U.S.C. M. A. 549, 26 C. M. R. 329 (1958). Moreover, as the Court of Appeals noted, it is unrealistic to conclude, in most cases, that a finding of "not guilty" or "discretion" exonerates the cadet in anything other than the purely technical and legal sense of the term.
Admittedly, the Court requires that, before release, these documents be subject to in camera inspection with power of excising parts. But, as the Court admits, any such attempt to "sanitize" these summaries would still leave the very distinct possibility that the individual would still be identifiable and thereby injured. In light of Congress' recent manifest concern in the Privacy Act of 1974, 5 U.S.C. 552a (1970 ed., Supp. V), for "governmental respect for the privacy of citizens . . .," S. Rep. No. 93-1183, p. 1 (1974), it is indeed difficult to attribute to Congress a willingness to subject an individual citizen to the risk of possible severe damage to his reputation simply to permit law students to invade individual privacy to prepare a law journal article. Its definition of a "clearly unwarranted invasion of personal [425 U.S. 352, 385] privacy" as equated with "protect[ing] an individual's private affairs from unnecessary public scrutiny . . .," S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) (emphasis supplied), would otherwise be rendered meaningless.
(2) Moreover, excision would not only be ineffectual in accomplishing the legislative intent of protecting an individual's affairs from unnecessary public scrutiny, but it would place an intolerable burden upon a district court which, in my view, Congress never intended to inflict. Although the 1974 amendments to the Freedom of Information Act require that "[a]ny reasonably segregable portion of a record . . .," 5 U.S.C. 552 (b) (1970 ed., Supp. V), otherwise exempt, be provided, there is nothing in the legislative history of the original Act or its amendments which would require a district court to construct, in effect, a new document. Yet, the excision process mandated here could only require such a sweeping reconstruction of the material that the end product would constitute an entirely new document. No provision of the Freedom of Information Act contemplates a federal district judge acting as a "rewrite editor" of the original material.
If the Court's holding is indeed a fair reflection of congressional intent, we are confronted with a "split-personality" legislative reaction, by the conflict between a seeming passion for privacy and a comparable passion for needless invasions of privacy.
Accordingly, I would reverse the judgment of the Court of Appeals.
[ Footnote 1 ] As the Court noted in Orloff v. Willoughby, 345 U.S., at 91 : "The President's commission [uses the words] `reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee. . . ." An officer may be punitively dismissed (the equivalent of a dishonorable discharge) when found guilty of any offense by a general court-martial, regardless of the limitations placed on the punishment for the offense when committed by enlisted personnel. Manual for Courts-Martial § 126d (1969). See generally United States v. Goodwin, 5 U.S.C. M. A. 647, 18 C. M. R. 271 (1955).
[ Footnote 2 ] 7 Op. Atty. Gen. 332 (1855).
We are here concerned with the Freedom of Information Act, 5 U.S.C. 552 (1970 ed. and Supp. V), and with two of the exemptions provided by 552 (b). The Court in the very recent past has not hesitated consistently [425 U.S. 352, 386] to provide force to the congressionally mandated exemptions. See FAA Administrator v. Robertson, 422 U.S. 255 (1975); Renegotiation Board v. Grumman Aircraft, 421 U.S. 168 (1975); NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); EPA v. Mink, 410 U.S. 73 (1973). See also Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974). Today, I fear, the Court does just the opposite.
A. The Act's second exemption, 552 (b) (2), extends to matters that are "related solely to the internal personnel rules and practices of an agency." There can be no doubt that the Department of the Air Force, including the faculty and staff who supervise cadets at the Air Force Academy, qualifies as an "agency," within the meaning of 522 (b) (2), and the Court so recognizes. Ante, at 355-356. I would have thought, however, that matters that concern the established Honor Codes of our military academies, codes long in existence and part of our military society and tradition, see Parker v. Levy, 417 U.S. 733, 743 -744 (1974), and the disciplining of cadets as they move along in their Government-supplied education, would clearly qualify as "internal personnel . . . practices" of that agency. By its very nature, this smacks of personnel and personnel problems and practices. It is the agency's internal business and not the public's, and, because it is, the exemption is, or should be, afforded. Thus, although the Court does not, I find great support in the language of the second exemption for the petitioners' position here. To me, it makes both obvious and common sense, and I would hold, as did the District Court, that the Act's second exemption applies to the case summaries respondent Rose so ardently desired, and removes them from his eager grasp.
I cannot accept the rationale of the Court of Appeals majority that the existence of a "substantial potential for [425 U.S. 352, 387] public interest outside the Government," 495 F.2d 261, 265 (1974), makes these case summaries any less related "solely" to internal personnel rules and practices. Surely, public interest, which is secondary and a byproduct, does not measure "sole relationship," which is a primary concept. These summaries involve the discipline, fitness, and training of cadets. They are administered and enforced on an Academy-limited basis by the cadets themselves, and they exist wholly apart from the formal system of courts-martial and the Uniform Code of Military Justice.
B. The Act's sixth exemption, 522 (b) (6), is equally supportive for the petitioners here and for the result opposite to that which the Court reaches today. This exemption applies to matters that are "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Once again, we have a specific reference to "personnel . . . files," and what I have said above applies equally here. But, in addition, the sixth exemption covers "similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The added restrictive phrase applies not to "personnel," and surely not to "medical files," but only to "similar files." See Robles v. EPA, 484 F.2d 843, 845-846 (CA4 1973). The emphasis is on personnel files and on medical files and on "similar" files to the extent that privacy invasion of the latter would be unwarranted. The exemption as to personnel files and as to medical files is clear and unembellished. It is almost inconceivable to me that the Court is willing today to attach the qualification phrase to medical files and thereby open to the public what has been recognized as almost the essence of ultimate privacy. The law's long established physician-patient privilege establishes this. [425 U.S. 352, 388] Anyone who has had even minimal contact with the practice of medicine surely cannot agree with this extension by judicial construction and with the reasoning of another Court of Appeals in Ackerly v. Ley, 137 U.S. App. D.C. 133, 136-137, n. 3, 420 F.2d 1336, 1339-1340, n. 3 (1969), referred to and seemingly approved by the Court. Ante, at 373.
If, then, these case summaries are something less than "personnel files," a proposition I do not accept, they surely are "similar" to personnel files and, when invaded, afford an instance of a "clearly unwarranted invasion of personal privacy." It is hard to imagine something any more personal. It seems to me that the Court is blinding itself to realities when it concludes, as it does, that Rose's demands do not result in invasions of the personal privacy of the cadets concerned. And I do not regard it as any less unwarranted just because there are court-ordered redaction, a most impractical solution, and judicial rationalization that because the case summaries were posted "on 40 squadron bulletin boards throughout the Academy," ante, at 355, and copies distributed to faculty and administration officials, the invasion is not an invasion at all. The "publication" is restricted to the Academy grounds and to the private, not public, portions of those facilities. It is disseminated to the corps alone and to faculty and administration, and is a part of the Academy's general pedagogical and disciplinary purpose and program. To be sure, 40 may appear to some to be a large number, but the Academy's "family" and the area confinement are what are important. And the Court's reasoning must apply, awkwardly it seems to me, to 20 or 10 or five or two posting places, or, indeed, to only one.
I should add that I see little assistance for the Court in the legislative history. As is so often the case, that [425 U.S. 352, 389] history cuts both ways and is particularly confusing here. The Court's struggle with it, ante, at 362-370, so demonstrates.
Finally, I note the Court's candid recognition of the personal risks involved. Ante, at 380-381. Today's decision, of course, now makes those risks a reality for the cadet, "particularly one who has remained in the military," and the risks are imposed upon the individual in return for a most questionable benefit to the public and personal benefit to respondent Rose. So often the pendulum swings too far.
I fear that the Court today strikes a severe blow to the Honor Codes, to the system under which they operate, and to the former cadets concerned. It is sad to see these old institutions mortally wounded and passing away and individuals placed in jeopardy and embarrassment for lesser incidents long past.
I would reverse the judgment of the Court of Appeals.


8-177a. License plates for members or retired members of Kansas national guard; application; issuance; nontransferability; design of plate.
(a) Any owner or lessee of one or more passenger vehicles or trucks registered for a gross weight of not more than 20,000 pounds who is a resident of the state of Kansas, and who is a regularly enlisted or retired, warrant or commissioned member of the Kansas national guard, upon compliance with the provisions of this section, may be issued one distinctive license plate for each such motor vehicle or truck that is not required to be registered with the state corporation commission designating the owner or lessee of such vehicle as a member or retired member of the Kansas national guard. Such license plates shall be issued for the same period of time as other license plates upon proper registration and payment of the regular license fee as provided in K.S.A. 8-143, and amendments thereto.
(b) Any such member or retired member of the Kansas national guard may make application for such distinctive license plates, not less than 60 days prior to such member's renewal of registration date, on a form furnished by the director of vehicles, and any applicant for such distinctive license plates shall furnish the director with such applicant's armed forces of the United States identification card as proof that the applicant is a member or a retired member of the Kansas national guard. Application for the registration of passenger vehicles or trucks and issuance of the distinctive license plates under this section shall be made by the owner or lessee in a manner prescribed by the director of vehicles upon forms furnished by the director.
(c) No registration or distinctive license plate issued under this section shall be transferable to any other person.
(d) Renewals of registration under this section shall be made annually, upon payment of the fee prescribed in subsection (a), in the manner prescribed in subsection (b) of K.S.A. 8-132, and amendments thereto. No renewal of registration shall be made to any applicant until such applicant has filed with the director a form as provided in subsection (b). If such form is not filed, the applicant shall be required to comply with K.S.A. 8-143, and amendments thereto, and return the distinctive license plates to the county treasurer of such person's residence.
(e) The adjutant general, with the approval of the director of vehicles and subject to the availability of materials and equipment, shall design a distinctive license plate for issuance to members and retired members of the Kansas national guard.
History:L. 1979, ch. 34, § 1; L. 1980, ch. 34, § 3; L. 1982, ch. 38, § 1; L. 1985, ch. 43, § 12; L. 1993, ch. 252, § 3; L. 1997, ch. 79, § 2; L. 1999, ch. 125, § 6; July 1.
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Respondent Mirzayance entered pleas of not guilty and not guilty by reason of insanity (NGI) at his state-court murder trial. During the guilt phase, he sought to avoid a conviction for first-degree murder and instead obtain a second-degree murder verdict by presenting medical testimony that he was insane at the time of the crime and was, therefore, incapable of the necessary premeditation or deliberation. The jury nevertheless convicted him of first-degree murder. After the trial's NGI phase was scheduled, Mirzayance accepted his counsel's recommendation to abandon the insanity plea. Counsel believed that a defense verdict was unlikely because the jury had just rejected medical testimony similar to that which would be presented to establish the NGI defense. Moreover, although counsel had planned to supplement the medical evidence with testimony by Mirzayance's parents as to their son's mental illness, the parents refused to testify at the last moment. Following his conviction, Mirzayance alleged in state postconviction proceedings that his attorney's recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668. The trial court denied relief, and the California Court of Appeal affirmed.
Mirzayance then applied for federal habeas relief, which the District Court denied. The Ninth Circuit reversed, ordering an evidentiary hearing on counsel's recommendation to withdraw the NGI plea. During the hearing, the Magistrate Judge made extensive factfindings, including, inter alia, that the NGI phase medical evidence essentially would have duplicated the evidence the jury rejected in the guilt phase; that counsel doubted the likelihood of prevailing on the NGI claim because the jury's finding of first-degree murder as a practical matter would cripple Mirzayance's chances of convincing the jury that he nevertheless was incapable of understanding the nature and quality of his act and of distinguishing right from wrong; that Mirzayance's parents were not simply reluctant, but had effectively refused, to testify; that counsel had made a carefully reasoned decision not to proceed with the NGI plea after weighing his options and discussing the matter with experienced co-counsel; but that counsel's performance was nevertheless deficient because Mirzayance had "nothing to lose" by going forward with the NGI phase of the trial. The Magistrate Judge also found prejudice and recommended habeas relief. The District Court accepted the recommendation and granted the writ. The Court of Appeals affirmed, ruling, among other things, that counsel's performance had been deficient because Mirzayance's parents had not refused, but had merely expressed reluctance to testify, and because competent counsel would have attempted to persuade them to testify, which Mirzayance's counsel admittedly did not. The court essentially concluded that competent counsel would have pursued the insanity defense because counsel had nothing to lose by putting on the only defense available. In addition, the court found prejudice because, in the court's view, there was a reasonable probability the jury would have found Mirzayance insane had counsel pursued the NGI phase. The Ninth Circuit concluded that federal habeas relief was authorized under 28 U. S. C. §2254(d)(1) because the California Court of Appeal had "unreasonabl[y] appli[ed] clearly established Federal law."
Held: Whether the state-court decision is reviewed under §2254(d)(1)'s standard or de novo, Mirzayance has failed to establish that his counsel's performance was ineffective. Pp. 8-16.
(a) The State Court of Appeal's denial of Mirzayance's ineffective-assistance claim did not violate clearly established federal law. The Ninth Circuit reached a contrary result based largely on its application of an improper review standard--it blamed counsel for abandoning the NGI claim because there was "nothing to lose" by pursuing it. But it is not "an unreasonable application of clearly established Federal law" for a state court to decline to apply a specific legal rule that has not been squarely established by this Court. See, e.g., Wright v. Van Patten, 552 U. S. ___, ___. Absent anything akin to the "nothing to lose" standard in this Court's precedent, habeas relief could have been granted under §2254(d)(1) only if the state-court decision in this case had unreasonably applied Strickland's more general standard for ineffective-assistance claims, whereby a defendant must show both deficient performance by counsel and prejudice, 466 U. S., at 687. The question "is not whether a federal court believes the state court's determination" under Strickland "was incorrect but whether [it] was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U. S. 465, 473. And, because Strickland's is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the §2254(d)(1) standard, Mirzayance's ineffective-assistance claim fails. It was not unreasonable for the state court to conclude that counsel's performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success. Pp. 8-11.
(b) Even if Mirzayance's ineffective-assistance claim were eligible for de novo review, it would still fail because he has not shown ineffective assistance at all. Mirzayance can establish neither the deficient performance nor the prejudice required by Strickland. As to performance, he has not shown "that counsel's representation fell below an objective standard of reasonableness." 466 U. S., at 687-688. Rather, counsel merely recommended the withdrawal of what he reasonably believed was a claim doomed because similar medical testimony had already been rejected and the parents' testimony, which he believed to be his strongest evidence, would not be available. The Ninth Circuit's position that competent counsel might have persuaded the reluctant parents to testify is in tension with the Magistrate Judge's contrary findings and applies a more demanding standard than Strickland prescribes. The failure to show ineffective assistance is also confirmed by the Magistrate Judge's finding that counsel's decision was essentially an informed one "made after thorough investigation of law and facts relevant to plausible options," and was therefore "virtually unchallengeable." Id., at 690. The Ninth Circuit's insistence that counsel was required to assert the only defense available, even one almost certain to lose, is not supported by any "prevailing professional norms" of which the Court is aware. See id., at 688. Nor has Mirzayance demonstrated that he suffered prejudice, which requires a showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id., at 694. In fact, it was highly improbable that the jury, having just rejected testimony about Mirzayance's mental condition in the guilt phase, would have reached a different result based on similar evidence at the NGI phase. Pp. 11-16.
A federal court may grant a habeas corpus application arising from a state-court adjudication on the merits if 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." 28 U. S. C. §2254(d)(1). In this case, respondent Alexandre Mirzayance claimed ineffective assistance of counsel because his attorney recommended withdrawing his insanity defense. The California courts rejected this claim on state postconviction review. We must decide whether this decision was contrary to or an unreasonable application of clearly established federal law. We hold that it was not. Whether reviewed under the standard of review set forth in §2254(d)(1) or de novo, Mirzayance failed to establish that his counsel's performance was ineffective, see Strickland v. Washington, 466 U. S. 668 (1984).
Mirzayance confessed that he stabbed his 19-year-old cousin nine times with a hunting knife and then shot her four times. At trial, he entered pleas of not guilty and not guilty by reason of insanity (NGI). Under California law, when both of these pleas are entered, the court must hold a bifurcated trial, with guilt determined during the first phase and the viability of the defendant's NGI plea during the second. Cal. Penal Code Ann. §1026(a) (West 1985). During the guilt phase of Mirzayance's trial, he sought to avoid a conviction for first-degree murder by obtaining a verdict on the lesser included offense of second-degree murder. To that end, he presented medical testimony that he was insane at the time of the crime and was, therefore, incapable of the premeditation or deliberation necessary for a first-degree murder conviction. The jury nevertheless convicted Mirzayance of first-degree murder.
The trial judge set the NGI phase to begin the day after the conviction was entered but, on the advice of counsel, Mirzayance abandoned his NGI plea before it commenced. He would have borne the burden of proving his insanity during the NGI phase to the same jury that had just convicted him of first-degree murder. Counsel had planned to meet that burden by presenting medical testimony similar to that presented in the guilt phase, including evidence that Mirzayance was insane and incapable of premeditating or deliberating. Because the jury rejected similar evidence at the guilt phase (where the State bore the burden of proof), counsel believed a defense verdict at the NGI phase (where the burden was on the defendant) was unlikely. He planned, though, to have Mirzayance's parents testify and thus provide an emotional account of Mirzayance's struggles with mental illness to supplement the medical evidence of insanity. But on the morning that the NGI phase was set to begin, Mirzayance's parents refused to testify. After consulting with co-counsel, counsel advised Mirzayance that he should withdraw the NGI plea. Mirzayance accepted the advice.
After he was sentenced, Mirzayance challenged his conviction in state postconviction proceedings. Among other allegations, he claimed that counsel's recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland. The California trial court denied the petition and the California Court of Appeal affirmed without offering any reason for its rejection of this particular ineffective assistance claim. People v. Mirzayance, Nos. B116856, B124764 (Mar. 31, 1999), App. to Pet. for Cert. 165-167, 200-201 (hereinafter App.). Mirzayance then filed an application for federal habeas relief under 28 U. S. C. §2254, which the District Court denied without an evidentiary hearing. The Court of Appeals reversed the District Court and ordered an evidentiary hearing on counsel's recommendation to withdraw the NGI plea. Mirzayance v. Hickman, 66 Fed. Appx. 676, 679-681 (CA9 2003). During that evidentiary hearing, a Magistrate Judge made factual findings that the District Court later adopted. Post-Remand Report and Recommendation of United States Magistrate Judge in No. CV 00-01388 DT (RZ) (CD Cal.), App. 38, 68; Mirzayance v. Knowles, No. CV 00-1388 DT (RZ) (CD Cal., Nov. 15, 2004), id., at 35-36.
According to the Magistrate Judge, counsel's strategy for the two-part trial was to seek a second-degree murder verdict in the first stage and to seek an NGI verdict in the second stage. This strategy faltered when the jury instead convicted Mirzayance of first-degree murder. In the circumstances of this case, the medical evidence that Mirzayance planned to adduce at the NGI phase essentially would have duplicated evidence that the jury had necessarily rejected in the guilt phase. First-degree murder in California includes any killing that is "willful, deliberate, and premeditated." Cal. Penal Code Ann. §189 (West 1999). To prove NGI, a defendant must show that he was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong at the time of the offense. See People v. Lawley, 27 Cal. 4th 102, 170, 38 P. 3d 461, 508 (2002). Highlighting this potential contradiction, the trial judge instructed the jury during the guilt phase that "[t]he word 'deliberate,' " as required for a first-degree murder conviction, "means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." App. 48-49.
"The defense suspected that a jury's finding, beyond a reasonable doubt, that [Mirzayance] had 'deliberated' and 'premeditated' his killing of [the victim] as a practical matter would cripple [Mirzayance's] chances of convincing the jury later, during the sanity phase, that [Mirzayance] nevertheless 'was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of the commission of the offense,' Cal. Penal Code §25(b), ... .
"Any remaining chance of securing an NGI verdict ... now depended (in [counsel's] view) on presenting some 'emotional [im]pact' testimony by [Mirzayance's] parents, which [counsel] had viewed as key even if the defense had secured a second-degree murder verdict at the guilt phase." Id., at 50-51 (emphasis in original; capitalization omitted).
"[T]he parents at least expressed clear reluctance to testify, which, in context, conveyed the same sense as a refusal." Id., at 72 (emphasis in original).
"Corroborating the Court's finding that [Mirzayance's] parents indicated a strong disinclination to testify at the NGI phase are the facts that (1) they did not testify later at his sentencing hearing, and (2) the reason for their choosing not to do so ... is that ... [it] would have been 'too emotional' for them... . If weeks after the guilty verdict and the withdrawal of their son's NGI plea, [Mirzayance's] parents' emotions still prevented them from testifying at the sentencing hearing, then surely those emotional obstacles to their testifying in the NGI phase would have been at least as potent, and probably more so." Id., at 73 (emphasis in original).
"[Counsel] carefully weighed his options before making his decision final; he did not make it rashly... . [Counsel's] strategy at the NGI phase ... depended entirely on the heartfelt participation of [Mirzayance's] parents as witnesses... . Moreover, [counsel] knew that, although he had experts lined up to testify, their testimony had significant weaknesses... . [Counsel's] NGI-phase strategy became impossible to attempt once [Mirzayance's] parents ... expressed ... their reluctance to [testify] ... . All [counsel] was left with were four experts, all of whom reached a conclusion--that [Mirzayance] did not premeditate and deliberate his crime--that the same jury about to hear the NGI evidence already had rejected under a beyond-a-reasonable-doubt standard of proof. The experts were subject to other impeachment as well... . [Counsel] discussed the situation with his experienced co-counsel ... who concurred in [counsel's] proposal that he recommend to [Mirzayance] the withdrawal of the NGI plea." Id., at 69-71.
Based on these factual findings, the Magistrate Judge stated that, in his view, counsel's performance was not deficient.
Despite this determination, the Magistrate Judge concluded that the court was bound by the Court of Appeals' remand order to determine only whether " 'there were tactical reasons for abandoning the insanity defense.' " Id., at 98 (quoting Hickman, 66 Fed. Appx., at 680). Even though the Magistrate Judge thought that counsel was reasonable in recommending that a very weak claim be dropped, the Magistrate Judge understood the remand order to mean that counsel's performance was deficient if withdrawing the NGI plea would achieve no tactical advantage. The Magistrate Judge found that "[Mirzayance] had nothing to lose" by going forward with the NGI phase of the trial, App. 100, and thus held, under the remand order, that counsel's performance was deficient, ibid. As to prejudice, the Magistrate Judge concluded the court was similarly bound by the remand order because the Court of Appeals described the NGI defense as remaining " 'viable and strong.' " Id., at 98 (quoting Hickman, supra, at 681). Accordingly, the Magistrate Judge found prejudice and recommended granting the writ of habeas corpus. The District Court accepted this recommendation and granted the writ.
The Court of Appeals affirmed. Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006). It first stated that the lower court had misunderstood its remand order, which it described as requiring an examination of "counsel's reason for abandoning the insanity defense," rather than as mandating that the District Court must find deficient performance if it found counsel had "nothing to lose" by pursuing the insanity defense. Ibid.; App. 98-99. Nonetheless, the Court of Appeals affirmed the finding of deficient performance. According to the court, Mirzayance's "parents did not refuse, but merely expressed reluctance to testify." Knowles, 175 Fed. Appx., at 144. And because they may have been willing, "[c]ompetent counsel would have attempted to persuade them to testify, which counsel here admits he did not." Ibid.1 The Court of Appeals also "disagree[d] that counsel's decision was carefully weighed and not made rashly." Ibid.
Furthermore, even though it had suggested that the District Court unnecessarily evaluated counsel's strategy under a "nothing to lose" standard, the Court of Appeals affirmed the District Court in large part because Mirzayance's "counsel did not make a true tactical choice" based on its view that counsel had nothing to gain by dropping the NGI defense. Ibid. The court held that "[r]easonably effective assistance would put on the only defense available, especially in a case such as this where there was significant potential for success." Id., at 145 (internal quotation marks omitted). The Court of Appeals also found prejudice because, in its view, "[i]f counsel had pursued the insanity phase of the trial, there is a reasonable probability . . . that the jury would have found Mirzayance insane." Ibid.
We granted the petition for writ of certiorari, vacated the Court of Appeals' opinion, and remanded for further consideration in light of Carey v. Musladin, 549 U. S. 70 (2006), which held that a state court had not " 'unreasonabl[y] appli[ed] clearly established Federal law' " when it declined to apply our precedent concerning state-sponsored courtroom practices to a case involving spectator conduct at trial, id., at 76-77. Knowles v. Mirzayance, 549 U. S. 1199 (2007). On remand, the Court of Appeals concluded that its decision was unaffected by Musladin and again affirmed the District Court's grant of habeas corpus. App. 4. The Court of Appeals reiterated the same analysis on which it had relied prior to this Court's remand, again finding that the California court had unreasonably applied clearly established federal law because defense counsel's failure to pursue the insanity defense constituted deficient performance as it "secured ... [n]o actual tactical advantage." Id., at 8. We granted certiorari, 554 U. S. ___ (2008).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner's habeas application unless the relevant state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."2 Here, the relevant state-court decision is the California Court of Appeal's decision denying state habeas relief.
We conclude that the state court's decision to deny Mirzayance's ineffective-assistance-of-counsel claim did not violate clearly established federal law. The Court of Appeals reached a contrary result based, in large measure, on its application of an improper standard of review--it blamed counsel for abandoning the NGI claim because there was nothing to lose by pursuing it.3 But this Court has held on numerous occasions that it is not " 'an unreasonable application of clearly established Federal law' " for a state court to decline to apply a specific legal rule that has not been squarely established by this Court. See Wright v. Van Patten, 552 U. S. ___, ___ (2008) (slip op., at 5-6 (per curiam); Schriro v. Landrigan, 550 U. S. 465, 478 (2007); Musladin, supra, at 76-77. This Court has never established anything akin to the Court of Appeals' "nothing to lose" standard for evaluating Strickland claims. Indeed, Mirzayance himself acknowledges that a "nothing to lose" rule is "unrecognized by this Court." Brief for Respondent 28. And the Court of Appeals did not cite any Supreme Court decision establishing a "nothing to lose" standard in any of its three opinions in this case. See App. 3-12; Knowles, 175 Fed. Appx. 142; Hickman, 66 Fed. Appx. 676.
With no Supreme Court precedent establishing a "nothing to lose" standard for ineffective-assistance-of-counsel claims, habeas relief cannot be granted pursuant to §2254(d)(1) based on such a standard. Instead, such relief may be granted only if the state-court decision unreasonably applied the more general standard for ineffective-assistance-of-counsel claims established by Strickland, in which this Court held that a defendant must show both deficient performance and prejudice in order to prove that he has received ineffective assistance of counsel, 466 U. S., at 687. Indeed, this Court has repeatedly applied that standard to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point. See, e.g., Van Patten, supra, at ___ (slip op., at 5) (evaluating claim under Strickland where no Supreme Court precedent established that any other standard applied to the "novel factual context" before the Court); Schriro, supra, at 478 (evaluating claim under general Strickland standard where no Supreme Court precedent addressed the particular "situation in which a client interferes with counsel's efforts to present mitigating evidence to a sentencing court").
The question "is not whether a federal court believes the state court's determination" under the Strickland standard "was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro, supra, at 473. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").
Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the §2254(d)(1) standard, see Yarborough v. Gentry, 540 U. S. 1, 5-6 (2003) (per curiam), Mirzayance's ineffective-assistance claim fails. It was not unreasonable for the state court to conclude that his defense counsel's performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success. As explained more fully below, this Court has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success. See also infra, at 14-15.
Even if Mirzayance's ineffective-assistance-of-counsel claim were eligible for de novo review, it would still fail. Strickland requires a defendant to establish deficient performance and prejudice. 466 U. S., at 687. Mirzayance can establish neither.
Mirzayance has not shown "that counsel's representation fell below an objective standard of reasonableness." Id., at 687-688. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688. "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id., at 690.
"All [counsel] was left with were four experts, all of whom reached a conclusion--that [Mirzayance] did not premeditate and deliberate his crime--that the same jury about to hear the NGI evidence already had rejected under a beyond-a-reasonable-doubt standard of proof. The experts were subject to other impeachment as well." App. 71.
In fact, the Magistrate Judge found that counsel "convincingly detailed ways in which [the experts] could have been impeached, for overlooking or minimizing facts which showcased [Mirzayance's] clearly goal-directed behavior." Id., at 70.
In the NGI phase, the burden would have switched to Mirzayance to prove insanity by a preponderance of the evidence. Mirzayance's counsel reasonably believed that there was almost no chance that the same jury would have reached a different result when considering similar evidence, especially with Mirzayance bearing the burden of proof. Furthermore, counsel knew he would have had to present this defense without the benefit of the parents' testimony, which he believed to be his strongest evidence. See ibid. ("[Counsel's] strategy at the NGI phase had been to appeal to the jury in one or both of two ways that depended entirely on the heartfelt participation of [Mirzayance's] parents as witnesses"). Counsel reasonably concluded that this defense was almost certain to lose.
The Court of Appeals took the position that the situation was not quite so dire because the parents "merely expressed reluctance to testify." Id., at 7; Knowles, 175 Fed. Appx., at 144. It explained that "[c]ompetent counsel would have attempted to persuade them to testify." App. 7; Knowles, supra, at 144. But that holding is in tension with the Magistrate Judge's findings and applies a more demanding standard than Strickland prescribes. The Magistrate Judge noted that the parents "conveyed the same sense as a refusal." App. 72. Indeed, the Magistrate Judge found that the parents "did not testify later at [Mirzayance's] sentencing hearing" because it "would have been 'too emotional' for them." Id., at 73 (quoting testimony from evidentiary hearing). Competence does not require an attorney to browbeat a reluctant witness into testifying, especially when the facts suggest that no amount of persuasion would have succeeded. Counsel's acceptance of the parents' "convey[ance] [of] ... a refusal," id., at 72, does not rise to the high bar for deficient performance set by Strickland.
Mirzayance's failure to show ineffective assistance of counsel is confirmed by the Magistrate Judge's finding that "[counsel] carefully weighed his options before making his decision final; he did not make it rashly." App. 69. The Magistrate Judge explained all of the factors that counsel considered--many of which are discussed above--and noted that counsel "discussed the situation with his experienced co-counsel" before making it. Id., at 71. In making this finding, the Magistrate Judge identified counsel's decision as essentially an informed decision "made after thorough investigation of law and facts relevant to plausible options." Strickland, 466 U. S., at 690. As we stated in Strickland, such a decision is "virtually unchallengeable." Ibid.
Without even referring to the Magistrate Judge's finding, the Court of Appeals "disagree[d] that counsel's decision was carefully weighed and not made rashly." App. 7; Knowles, supra, at 144. In its view, "counsel acted on his subjective feelings of hopelessness without even considering the potential benefit to be gained in persisting with the plea." App. 8; Knowles, supra, at 144-145. But courts of appeals may not set aside a district court's factual findings unless those findings are clearly erroneous. Fed. Rule Civ. Proc. 52(a); Anderson v. Bessemer City, 470 U. S. 564, 573-574 (1985). Here, the Court of Appeals failed even to mention the clearly-erroneous standard, let alone apply it, before effectively overturning the lower court's factual findings related to counsel's behavior.
In light of the Magistrate Judge's factual findings, the state court's rejection of Mirzayance's ineffective-assistance-of-counsel claim was consistent with Strickland. The Court of Appeals insisted, however, that " '[r]easonably effective assistance' required here that counsel assert the only defense available ... ." App. 8; see also Knowles, supra, at 145. But we are aware of no "prevailing professional norms" that prevent counsel from recommending that a plea be withdrawn when it is almost certain to lose. See Strickland, supra, at 688. And in this case, counsel did not give up "the only defense available." Counsel put on a defense to first-degree murder during the guilt phase. Counsel also defended his client at the sentencing phase.4 The law does not require counsel to raise every available nonfrivolous defense. See Jones v. Barnes, 463 U. S. 745, 751 (1983); cf. Wiggins v. Smith, 539 U. S. 510, 533 (2003) (explaining, in case involving similar issue of counsel's responsibility to present mitigating evidence at sentencing, that "Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant ... [or even to] present mitigating evidence at sentencing in every case"). Counsel also is not required to have a tactical reason--above and beyond a reasonable appraisal of a claim's dismal prospects for success--for recommending that a weak claim be dropped altogether. Mirzayance has thus failed to demonstrate that his counsel's performance was deficient.
In addition, Mirzayance has not demonstrated that he suffered prejudice from his counsel's performance. See Strickland, 466 U. S., at 691 ("An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment"). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. To prevail on his ineffective-assistance claim, Mirzayance must show, therefore, that there is a "reasonable probability" that he would have prevailed on his insanity defense had he pursued it. This Mirzayance cannot do. It was highly improbable that a jury, which had just rejected testimony about Mirzayance's mental condition when the State bore the burden of proof, would have reached a different result when Mirzayance presented similar evidence at the NGI phase. See supra, at 12-13.
Mirzayance has not shown that the state court's conclusion that there was no ineffective assistance of counsel "was contrary to, or involved an unreasonable application of, clearly established Federal law" under §2254. In fact, he has not shown ineffective assistance at all. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to deny the petition.
At best, the Court of Appeals' characterization of counsel's efforts to persuade the parents to testify is misleading. According to the Magistrate Judge, counsel testified that he did attempt to persuade the parents to testify but that their response " 'was kind of flat, and I had no influence over them.' " App. 54 (quoting testimony from evidentiary hearing). In his efforts to convince the parents to testify, counsel told them that Mirzayance "had no chance of securing an NGI verdict without the 'emotional quality from nonprofessional witnesses' that Mr. and Mrs. Mirzayance's testimony could provide; and 'that they were abandoning their son.' " Id., at 53-54 (same).
Before the Court of Appeals, Mirzayance contended that the standard of review set forth in §2254(d)(1) should not apply to his case. See Brief for Appellee in No. 04-57102 (CA9), pp. 28-29, 33. Before this Court, however, Mirzayance contends that the Court of Appeals correctly applied §2254(d) to his claim. See Brief for Respondent 27, 32. Mirzayance did question whether the California Court of Appeal's denial of his claim should receive as much deference as the "prototypical" state-court adjudication "involv[ing] both a reasoned, written opinion and an adequate development of the factual record in support of the claims." Id., at 33. Mirzayance thus contends that "the usual §2254(d) deferential approach must be modified and adapted" in evaluating his claim. Id., at 34. Nonetheless, because Mirzayance has not argued that §2254(d) is entirely inapplicable to his claim or that the state court failed to reach an adjudication on the merits, we initially evaluate his claim through the deferential lens of §2254(d). See United States v. International Business Machines Corp., 517 U. S. 843, 855, n. 3 (1996) (finding that party abandoned issue by failing to address it in the party's brief on the merits); Posters 'N' Things, Ltd. v. United States, 511 U. S. 513, 527 (1994) (same).
In addition, we do not decide whether the Court of Appeals was correct in finding that an evidentiary hearing on Mirzayance's claim was required. See Mirzayance v. Hickman, 66 Fed. Appx. 676, 679-681 (CA9 2003). Mirzayance's ineffective-assistance-of-counsel claim fails even under the facts presented at the evidentiary hearing.
Although the Court of Appeals implicitly disavowed the "nothing to lose" standard applied by the District Court and Magistrate Judge, see App. 5; Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006), it nevertheless concluded that "[n]o actual tactical advantage was to be gained" by counsel's withdrawal of the insanity defense, App. 8; Knowles, supra, at 144. Finding that counsel is deficient by abandoning a defense where there is nothing to gain from that abandonment is equivalent to finding that counsel is deficient by declining to pursue a strategy where there is nothing to lose from pursuit of that strategy.