text:
The National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join, or assist labor organizations," 7, and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their 7 rights, 8(a)(1). Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in a large metropolitan area. Lechmere is also part owner of the plaza's parking lot, which is separated from a public highway by a 4-foot wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers placed handbills on the windshields of cars parked in the employees' part of the parking lot. After Lechmere denied the organizers access to the lot, they distributed handbills and picketed from the grassy strip. In addition, they were able to contact directly some 20 of the employees. The union filed an unfair labor practice charge with respondent National Labor Relations Board (Board), alleging that Lechmere had violated the NLRA by barring the organizers from its property. An Administrative Law Judge ruled in the union's favor, recommending that Lechmere, inter alia, be ordered to cease and desist from barring the organizers from the parking lot. The Board affirmed, relying on its ruling in Jean Country, 291 N.L.R.B. 11, that, in all access cases, the Board should balance (1) the degree of impairment of the 7 right if access is denied, against (2) the degree of impairment of the private property right if access is granted, taking into consideration (3) the availability of reasonably effective alternative means of exercising the 7 right. Id., at 14. The Court of Appeals enforced the Board's order.
Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Pp. 531-541.
(a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 118 . Babcock's holding was neither repudiated nor modified by this Court's decisions in Central Hardware Co. v. NLRB, 407 U.S. 539 , and Hudgens [502 U.S. 527, 528] v. NLRB, 424 U.S. 507 . See also Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180 . Pp. 4-8.
(b) At least as applied to nonemployee union organizers, Jean Country is inconsistent with this Court's past interpretation of 7. Babcock's teaching is straightforward: 7 simply does not protect nonemployee union organizers except in the rare case where "the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels." 351 U.S., at 112 . It is only when reasonable access to employees is infeasible that it becomes appropriate to balance 7 and private property rights. Pp. 539-541.
(c) The facts in this case do not justify application of Babcock's inaccessibility exception. Because Lechmere's employees do not reside on its property, they are presumptively not "beyond the reach" of the union's message. Nor does the fact that they live in a large metropolitan area render them "inaccessible." Because the union failed to establish the existence of any "unique obstacles" that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. Pp. 539-541.
914 F.2d 313 (CA1 1990), reversed.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which BLACKMUN, J., joined. STEVENS, J., filed a dissenting opinion.
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America et al. by John S. Irving, Stephen A. Bokat, and Robert J. Verdisco; for the Council on Labor Law Equality by Gerard C. Smetana and Michael E. Avakian; for the Food Marketing Institute by Eugene D. Ulterino; for the International Council of Shopping Centers, Inc., by Stephanie McEvily and Edward J. Sack; and for the National Retail Federation by John W. Noble, Jr., and Edward B. Miller.
This case requires us to clarify the relationship between the rights of employees under 7 of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. 157, and the property rights of their employers.
This case stems from the efforts of Local 919 of the United Food and Commercial Workers Union, AFL-CIO, to organize employees at a retail store in Newington, Connecticut, owned and operated by petitioner Lechmere, Inc. The store is located in the Lechmere Shopping Plaza, which occupies a roughly rectangular tract measuring approximately 880 feet from north to south and 740 feet from east to west. Lechmere's store is situated at the Plaza's south end, with the main parking lot to its north. A strip of 13 smaller "satellite stores" not owned by Lechmere runs along the west side of the Plaza, facing the parking lot. To the Plaza's east (where the main entrance is located) runs the Berlin Turnpike, a four-lane divided highway. The parking lot, however, does not abut the Turnpike; they are separated by a 46-foot-wide grassy strip, broken only by the Plaza's entrance. The parking lot is owned jointly by Lechmere and the developer of the satellite stores. The grassy strip is public property (except for a four-foot-wide band adjoining the parking lot, which belongs to Lechmere).
"WE WILL NOT prohibit representatives of Local 919, United Food and Commercial Workers, AFL-CIO ("the Union") or any other labor organization, from distributing union literature to our employees in the parking lot adjacent to our store in Newington, Connecticut, nor will we attempt to cause them to be removed from our parking lot for attempting to do so." Id. App. to ALJ slip op.
The Board affirmed the ALJ's judgment and adopted the recommended order, applying the analysis set forth in its opinion in Jean Country, 291 N.L.R.B. 11 (1988), which had by then replaced the short-lived Fairmont Hotel approach. 295 N.L.R.B. No. 15, Board slip op. A divided panel of the United States Court of Appeals for the First Circuit denied Lechmere's petition for review and enforced the Board's order. 914 F.2d 313 (1990). This Court granted certiorari, 499 U.S. 918 (1991).
Section 7 of the NLRA provides in relevant part that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations." 29 U.S.C. 157. Section 8(a)(1) of the Act, in turn, makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [502 U.S. 527, 532] [ 7]." 29 U.S.C. 158(a)(1). By its plain terms, thus, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. In NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), however, we recognized that insofar as the employees' "right of self-organization depends in some measure on [their] ability . . . to learn the advantages of self-organization from others," id., at 113, 7 of the NLRA may, in certain limited circumstances, restrict an employer's right to exclude nonemployee union organizers from his property. It is the nature of those circumstances that we explore today.
Babcock arose out of union attempts to organize employees at a factory located on an isolated 100-acre tract. The company had a policy against solicitation and distribution of literature on its property, which it enforced against all groups. About 40% of the company's employees lived in a town of some 21,000 persons near the factory; the remainder were scattered over a 30-mile radius. Almost all employees drove to work in private cars and parked in a company lot that adjoined the fenced-in plant area. The parking lot could be reached only by a 100-yard-long driveway connecting it to a public highway. This driveway was mostly on company-owned land, except where it crossed a 31-foot-wide public right-of-way adjoining the highway. Union organizers attempted to distribute literature from this right-of-way. The union also secured the names and addresses of some 100 employees (20% of the total), and sent them three mailings. Still other employees were contacted by telephone or home visit.
The union successfully challenged the company's refusal to allow nonemployee organizers onto its property before the Board. While acknowledging that there were alternative, nontrespassory means whereby the union could communicate with employees, the Board held that contact at the workplace was preferable. The Babcock & Wilcox Co., 109 N.L.R.B. 485, 493-494 (1954). "[T]he right to distribute is not [502 U.S. 527, 533] absolute, but must be accommodated to the circumstances. Where it is impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer's premises, distribution on a nonworking area, such as the parking lot and the walkways between the parking lot and the gate, may be warranted." Id., at 493. Concluding that traffic on the highway made it unsafe for the union organizers to distribute leaflets from the right-of-way, and that contacts through the mails, on the streets, at employees' homes, and over the telephone would be ineffective, the Board ordered the company to allow the organizers to distribute literature on its parking lot and exterior walkways. Id., at 486-487.
The Court of Appeals for the Fifth Circuit refused to enforce the Board's order, NLRB v. Babcock & Wilcox Co., 222 F.2d 316, and this Court affirmed. While recognizing that "the Board has a responsibility of `applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as violative of the terms,'" 351 U.S., at 111 -112, (quoting NLRB v. Stowe Spinning Co., 336 U.S. 226, 231 (1949)), we explained that the Board had erred by failing to make the critical distinction between the organizing activities of employees (to whom 7 applies only derivatively). Thus, while "[n]o restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline," 351 U.S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945)), "no such obligation is owed nonemployee organizers," 351 U.S., at 113 . As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. As with many other rules, however, we recognized an exception. Where "the location of a plant and the living quarters of the [502 U.S. 527, 534] employees place the employees beyond the reach of reasonable union efforts to communicate with them," ibid., employers' property rights may be "required to yield to the extent needed to permit communication of information on the right to organize," id., at 112.
Although we have not had occasion to apply Babcock's analysis in the ensuing decades, we have described it in cases arising in related contexts. Two such cases, Central Hardware Co. v. NLRB, 407 U.S. 539 (1972), and Hudgens v. NLRB, 424 U.S. 507 (1976), involved activity by union supporters on employer-owned property. The principal issue in both cases was whether, based upon Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), the First Amendment protected such activities. In both cases, we rejected the First Amendment claims, and in Hudgens, we made it clear that Logan Valley was overruled. Having decided the cases on constitutional grounds, we remanded them to the Board for consideration of the union supporters' 7 claims under Babcock. In both cases, we quoted approvingly Babcock's admonition that accommodation between employees' 7 rights and employers' property rights "must be obtained with as little destruction of the one as is consistent with the maintenance of the other," 351 U.S., at 112 . See Central Hardware, supra, at 544; Hudgens, supra, at 521, 522. There is no hint in Hudgens and Central Hardware, however, that our invocation of Babcock's language of "accommodation" was intended to repudiate or modify Babcock's holding that an employer need not accommodate nonemployee organizers unless the employees are otherwise inaccessible. Indeed, in Central Hardware, we expressly noted that nonemployee organizers cannot claim even a limited right of access to a nonconsenting employer's property until "[a]fter the requisite need for access to the employer's property has been shown." 407 U.S., at 545 .
"While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity." 436 U.S., at 205 (emphasis added; footnotes omitted).
"[I]n all access cases, our essential concern will be 1. the degree of impairment of the Section 7 right if access should be denied, as it balances against 2. the degree of impairment of the private property right if access should be granted. We view the consideration of 3. the availability of reasonably effective alternative means as especially significant in this balancing process." 291 N.L.R.B., at 14.
The Board conceded that this analysis was unlikely to foster certainty and predictability in this corner of the law, but declared that, "as with other legal questions involving multiple factors, the `nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.'" Ibid. (quoting Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961)).
Citing its role "as the agency with responsibility for implementing national labor policy," the Board maintains in this case that Jean Country is a reasonable interpretation of the NLRA entitled to judicial deference. Brief for Respondent 18, and n. 8; Tr. of Oral Arg. 22. It is certainly true, and we have long recognized, that the Board has the "special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); see also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196 -197 (1941). Like other administrative agencies, the NLRB is entitled to judicial deference when it interprets an ambiguous provision of a statute that it administers. See, e.g., NLRB v. Food & Commercial Workers, 484 U.S. 112, 123 (1987); cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 -843 (1984).
Before we reach any issue of deference to the Board, however, we must first determine whether Jean Country - at least as applied to nonemployee organizational trespassing - is consistent with our past interpretation of 7. "Once we [502 U.S. 527, 537] have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning." Maislin Industries, U.S. Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990).
The threshold inquiry in this case, then, is whether the facts here justify application of Babcock's inaccessibility exception. The ALJ below observed that "the facts herein convince me that reasonable alternative means [of communicating with Lechmere's employees] were available to the Union," 295 N.L.R.B., at 99 (emphasis added). 2 Reviewing the ALJ's decision under Jean Country, however, the Board reached a different conclusion on this point, asserting that "there was no reasonable, effective alternative means available for the Union to communicate its message to [Lechmere's] employees." Id., at 93.
We cannot accept the Board's conclusion, because it "rest[s] on erroneous legal foundations," Babcock, supra, at 112; see also NLRB v. Brown, 380 U.S. 278, 290 -292 (1965). As we have explained, the exception to Babcock's rule is a narrow one. It does not apply wherever nontrespassory access to employees may be cumbersome or less-than-ideally effective, but only where "the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them," 351 U.S., at 113 (emphasis added). Classic examples include logging camps, see NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (CA6 1948); mining camps, see Alaska Barite Co., 197 N.L.R.B. 1023 (1972), enforced mem., 83 LRRM 2992 (CA9), cert. denied, 414 U.S. 1025 (1973); and mountain resort hotels, see NLRB v. S & H Grossinger's Inc., 372 F.2d 26 [502 U.S. 527, 540] (CA2 1967). Babcock's exception was crafted precisely to protect the 7 rights of those employees who, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society. The union's burden of establishing such isolation is, as we have explained, "a heavy one," Sears, supra, at 205, and one not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication.
The Board's conclusion in this case that the union had no reasonable means short of trespass to make Lechmere's employees aware of its organizational efforts is based on a misunderstanding of the limited scope of this exception. Because the employees do not reside on Lechmere's property, they are presumptively not "beyond the reach," Babcock, 351 U.S., at 113 , of the union's message. Although the employees live in a large metropolitan area (Greater Hartford), that fact does not in itself render them "inaccessible" in the sense contemplated by Babcock. See Monogram Models, Inc., 192 N.L.R.B. 705, 706 (1971). Their accessibility is suggested by the union's success in contacting a substantial percentage of them directly, via mailings, phone calls, and home visits. Such direct contact, of course, is not a necessary element of "reasonably effective" communication; signs or advertising also may suffice. In this case, the union tried advertising in local newspapers; the Board said that this was not reasonably effective, because it was expensive and might not reach the employees. 295 N.L.R.B., at 93. Whatever the merits of that conclusion, other alternative means of communication were readily available. Thus, signs (displayed, for example, from the public grassy strip adjoining Lechmere's parking lot) would have informed the employees about the union's organizational efforts. (Indeed, union organizers picketed the shopping center's main entrance for months as employees came and went every day.) Access to employees, not success in winning them over, is the critical issue - although success, or lack thereof, may be relevant in determining [502 U.S. 527, 541] whether reasonable access exists. Because the union in this case failed to establish the existence of any "unique obstacles," Sears, 436 U.S., at 205 -206, n. 41, that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property.
The judgment of the First Circuit is therefore reversed, and enforcement of the Board's order denied.
"Non-associates [i.e., nonemployees] are prohibited from soliciting and distributing literature at all times anywhere on Company property, including parking lots. Non-associates have no right of access to the non-working areas and only to the public and selling areas of the store in connection with its public use." Brief for Petitioner 7.
On each door to the store Lechmere had posted a 6 in. by 8 in. sign reading: "TO THE PUBLIC. No Soliciting, Canvassing, Distribution of Literature or Trespassing by Non-Employees in or on Premises." App. 115-116. Lechmere consistently enforced this policy inside the store, as well as on the parking lot (against, among others, the Salvation Army and the Girl Scouts).
[ Footnote 2 ] Under the (pre-Jean Country) Fairmont Hotel analysis applied by the ALJ, it was only where the employees' 7 rights and an employer's property rights were deemed "relatively equal in strength," Fairmont Hotel Co., 282 N.L.R.B. 139, 142 (1986), that the adequacy of nontrespassory means of communication became relevant. Because the ALJ found that the 7 rights involved here outweighed Lechmere's property rights, he had no need to address the latter issue. He did so, he explained, only because of the possibility that his evaluation of the relative weights of the rights might not be upheld. 295 N.L.R.B. 94, 99 (1988).
"We will uphold a Board rule so long as it is rational and consistent with the Act, . . . even if we would have formulated a different rule had we sat on the Board." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 . The judicial role is narrow: the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978).
In NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), the Court said that, where nonemployee union representatives seek access to the employer's parking lot for the purpose of communicating with employees, the employer's property rights and the organizational rights of employees must be "[a]ccommodat[ed] . . . with as little destruction of one as is consistent with the maintenance of the other." Although it said that it was slow to overturn an administrative decision, the Court disagreed with the balance the Board had struck in granting access to the union because the Board had failed to recognize that access by nonemployees required a different accommodation than where employees are involved. Id., at 112-113. The Court went on to say that, "when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property [502 U.S. 527, 542] has been required to yield to the extent needed to permit communication of information on the right to organize." Ibid. Later the Court said: "The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property." Id., at 113. The Court went on to hold that no such conditions were shown in the records of the cases before it.
In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing 7 and 8(a)(1) of the National Labor Relations Act to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer's place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board's order in this case, which rested on its prior decision in Jean Country, 291 N.L.R.B. 11 (1988), because, in the Court's view, Jean Country revealed that the Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case.
For several reasons, the Court errs in this case. First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer's parking lot and would satisfy the Court's admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course, the union must show that its "reasonable efforts", [502 U.S. 527, 543] without access, will not permit proper communication with employees. But I cannot believe that the Court in Babcock intended to confine the reach of such general considerations to the single circumstance that the Court now seizes upon. If the Court in Babcock indicated that nonemployee access to a logging camp would be required, it did not say that only in such situations could nonemployee access be permitted. Nor did Babcock require the Board to ignore the substantial difference between the entirely private parking lot of a secluded manufacturing plant and a shopping center lot which is open to the public without substantial limitation. Nor indeed did Babcock indicate that the Board could not consider the fact that employees' residences are scattered throughout a major metropolitan area; Babcock itself relied on the fact that the employees in that case lived in a compact area which made them easily accessible.
Moreover, the Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate 7 rights. 351 U.S., at 113 . If employees are entitled to learn from others the advantages of self-organization, ibid., it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot.
The majority today asserts that "[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees' and employers' rights." Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between 7 and property rights. The majority's assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two rights. The majority can hardly fault the Board for a decision which "conflates . . . two stages of the inquiry," ante, at 538, when no two-stage inquiry has been set forth by this Court.
Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). When reviewing an agency's construction of a statute, we ask first whether Congress has spoken to the precise question at issue. Id., at 842. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency's view is based on a permissible construction of the statute. Id., at 843. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties, and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of 7, which speaks only of the rights of employees; i.e., the Court might have found that 7 extends no access rights at all to union representatives. But Babcock itself recognized that [502 U.S. 527, 546] employees have a right to learn from others about self-organization, 351 U.S., at 113 , and itself recognized that, in some circumstances, 7 and 8 required the employer to grant the union access to parking lots. So have later Courts. and so does the Court today.
That being the case, the Babcock Court should have recognized that the Board's construction of the statute was a permissible one, and deferred to its judgment. Instead, the Court simply announced that, as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency's job, not only by detailing how union organizer access should be determined, but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule.
Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that, if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board's change of mind. See NLRB v. Curtin Matheson Scientific, Inc., 494 U.S., at 787 ; NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265 -266 (1975).
As it is, the Court's decision fails to recognize that Babcock is at compounds that error by adopting the substantive approach Babcock odds with the current law of deference to administrative agencies, and applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly [502 U.S. 527, 547] does not require the reading the Court gives it today, and in any event later cases have put a gloss on Babcock that the Court should recognize.
Finally, the majority commits a concluding error in its application of the outdated standard of Babcock to review the Board's conclusion that there were no reasonable alternative means available to the union. Unless the Court today proposes to turn back time in the law of judicial deference to administrative agencies, the proper standard for judicial review of the Board's rulings is no longer for "`erroneous legal foundations,'" ante, at 539, but for rationality and consistency with the statute. Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (1991); NLRB v. Curtin Matheson Scientific, Inc., supra; Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); NLRB v. Financial Institution Employees, 475 U.S. 192, 202 (1986); Beth Israel Hospital, 437 U.S., at 501 . "The judicial role is narrow: . . . the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." Ibid. The Board's conclusion as to reasonable alternatives in this case was supported by evidence in the record. Even if the majority cannot defer to that application, because of the depth of its objections to the rule applied by the NLRB, it should remand to the Board for a decision under the rule it arrives at today, rather than sitting in the place Congress has assigned to the Board.
[ Footnote * ] In Sears, Roebuck Co. v. Carpenters, 436 U.S. 180 (1978), we once again reaffirmed the accommodation language, as refined by Hudgens. The language we quoted in text in Sears was that of Hudgens, not Babcock. Thus, notwithstanding the majority's assertion that Sears laid to rest any question whether Hudgens changed 7 law, ante, at 534-535, Sears in fact endorsed the Hudgens refinement of the 7 property rights accommodation analysis, recognizing that the accommodation may fall at differing points, and that the Board should evaluate the nature and strength of property and 7 rights.
Sears was a preemption case, and only peripherally involved substantive principles of 7 accommodation by the NLRB. Unlike Hudgens, in Sears, we did not remand for ultimate disposition by the Board, but rather remanded to the state court. Thus, we had no occasion in that case, as we did in Hudgens, to provide further guidance to the Board in its interpretation of the NLRA (and of Babcock, Hudgens, and other decisions). Our "general rule" language recounting the rarity of NLRB decisions allowing access should be taken for what it was, a descriptive recounting of what "experience . . teaches", Sears, supra, at 205, about the way that the NLRB had exercised its authority, and not any prescription from this Court as to the analysis the Board should apply. That analysis had already been cited. 436 U.S., at 204 . Contrary to what the majority suggests, Sears did not clear up any false ambiguity created by Hudgens; to [502 U.S. 527, 545] the extent that it addressed the relevant issues, it reaffirmed the refined and more detailed guidance offered by Hudgens.
For the first two reasons stated in Justice WHITE's opinion, ante, at 541-545, I would affirm the judgment of the Court of Appeals enforcing the Board's order. I agree with Justice WHITE that the Court's strict construction of NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), is not consistent with Hudgens v. NLRB, 424 U.S. 507 (1976), and our other cases interpreting Babcock. I do not, however, join his opinion to the extent that it suggests that the Babcock case was incorrectly decided, ante, at 545-548. That decision rejected the Board's view that the rules applicable to union organizing draw no distinction between employees and nonemployees. I believe that central holding in Babcock was correct, and is not inconsistent with the current law of deference to administrative agencies. Accordingly, I also respectfully dissent.

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You have just rested in the best punitive damage case of your career. The defendant not only admitted seriously injuring your client, but said he was glad he crippled her and would do it again if given an opportunity. He admitted spending his prior summer as a camp counselor for his local Hitler youth group and everyone on the jury has been making faces at him since voir dire.
You are therefore shocked and amazed when the court precluded you from arguing punitive damages to the jury even though the jury specifically found the defendant acted with malice, oppression, and fraud in the liability phase of trial. What went wrong? It turns out you forgot to present evidence of the defendant's financial condition. The consequence is a death penalty for your punitive damage claim.
This article briefly reviews the financial condition requirement to recover punitive damages and survive appeal.
1. The Requirement of Proving Financial Condition.
To recover an award of punitive damages, it should be enough to show the defendant is a menace to society, who thought nothing of robbing, stealing, and pillaging to make a profit no matter who got hurt. But ever since Adams v. Murakami (1991) 54 Cal.3d 105, our supreme court has made it clear you will need evidence over and above the defendant's wrongdoing if you want to win punitive damages at trial and keep them on appeal.
In Adams, our supreme court said proof of financial condition is an essential element plaintiffs must prove to recover punitive damages. The Adams court noted that the purpose of punitive damages is to sting, not to destroy. Adams v. Murakami, supra, 54 Cal.3d at 110. Accordingly, evidence of financial condition is indispensable for a jury to consider in deciding how much to award in a punitive damage case because punitive damages that might crush someone of modest means would not even be felt by some of the largest companies in the world and vice versa. Adams v. Murakami, supra, 54 Cal.3d at 110-111. Based upon this principle of law, the Adams decision requires plaintiffs seeking punitive damages to present evidence of the defendant's financial condition as a prerequisite to a punitive damage award. No evidence of financial condition - no punitive damages. Adams v. Murakami, supra, 54 Cal.3d at 112. Therefore, unless you present evidence of the defendant's financial condition, a punitive damage claim should not go to the jury - no matter how evil the defendant might be. Ibid.
2. Financial Condition and "Net Worth" Are Not The Same Thing - or Are They?
Both judges and attorneys commonly believe that evidence of financial condition is the same thing as net worth. The Adams court made it clear that the two concepts were not synonymous and declined to require proof of net worth before punitive damages could be awarded. Adams v. Murakami, supra, 54 Cal.3d at fn. 7. The court refused to state that proof of net worth was the only way to prove financial condition. This is significant because assuming the defendant does not admit what his/her/its net worth might be, expert testimony might be necessary to determine net worth. See, e.g., Rufo v. Simpson (2001) 86 Cal.App.4th 573. The concept of net worth can get extremely subjective in the case of individuals and companies with complicated financial structures. Accordingly, it is easier to present evidence of financial condition (i.e., the ability to pay an award), than it is to prove a defendant's net worth.
At least one court has held that even if the defendant has a negative net worth, that fact alone will not allow the defendant to escape a punitive damages award. Zaxis Wireless Communications v. Motor Sound Corporation (2001) 89 Cal.App.4th 577. See also, Rufo v. Simpson, supra, 86 Cal.App.4th at 621. In Zaxis, the court found that even though the defendant had a negative net worth, it had a credit line of $50 million that would allow the company to pay a $300,000 punitive damage award. But other courts have argued that (notwithstanding the language in Adams), proof of net worth is essential to a punitive damage claim. See, Lara v. Cadag (1993) 13 Cal.App.4th 1061 and Kenly v. Ukegawa (1993) 16 Cal.App.4th 49.
Accordingly, it seems unclear whether the concepts of financial condition and net worth are synonymous or not. Until the supreme court weighs in on the issue, it is still safer to present evidence of net worth if you want to win and keep a punitive damage award.
The Adams court made it clear it is the plaintiff's burden to present evidence of net worth, not the defendant's burden to rebut the evidence. Adams v. Murakami, supra, 54 Cal.3d at 120-21. It is not enough that the courts make it difficult to collect punitive damages from even the most evil of defendants. Our legislature has seen fit to make it more difficult to collect the evidence of financial condition you will need to prove your punitive damage case.
Civil Code section 3295(c) requires plaintiffs attempting to discover evidence of financial condition to file a motion with the court before the defendant is required to respond to such discovery. To win such a motion, Civil Code section 3295(c) requires you to prove it is more likely than not you will prevail on a punitive damage claim. That can be a tall order early in the case when many facts are either unknown or hotly disputed. In larger cases, the motion can be lost based just on the sheer volume of documents and the limited time a court has to address the issues in a motion setting.
The requirement of Civil Code section 3295(c) puts plaintiff lawyers on the horns of a dilemma in most cases. Where the evidence is obvious and overwhelming that a defendant is guilty of malice, oppression, or fraud, then deciding to file a Civil Code section 3295(c) motion is an easy decision. But what about cases where the evidence is not as clear or overwhelming? In such cases, you could bring a section 3295(c) motion - only to lose it. If you lose the Civil Code section 3295(c) motion, you may face a summary adjudication motion on the punitive damage claim or a motion in limine at trial requesting an evidentiary hearing before anyone can refer to malice, oppression, or fraud - given the fact you would not have any evidence to prove financial condition - an essential element of net worth. Moreover, defendants who at one point may have been concerned about a punitive damage award are likely to become more confident in their cases after a Civil Code section 3295(c) motion has been lost.
Thus, the decision to file a motion to obtain pre-trial discovery of net worth has to be made on a case-by-case basis. In some cases, you may have sufficient evidence of financial condition to survive a motion for summary adjudication even without pre-trial discovery. You may even have enough evidence of financial condition to get the issue of punitive damages to the jury without discovery. In such a case, filing a Civil Code section 3295(c) motion is unnecessary.
Even if you do not have any evidence of net worth, Civil Code section 3295(c) allows plaintiff to subpoena documents of financial condition for delivery at trial. Unfortunately, it is not easy to subpoena evidence unless you know it exists and can describe the documents you need with particularity. If you do not know what types of documents the defendant has which provide evidence of financial condition, you may not know what to request in your subpoena.
Even if the evidence you subpoena turns out to be unhelpful or non-existent, once the jury finds malice, oppression, or fraud, the trial court may be willing to order the defendant to produce financial information - an order it might have been reluctant to issue earlier in the case when liability for punitive damages was not as clear. But, such a strategy is risky. There is no guarantee a court will order the defendant to produce financial documents after discovery is closed, even if the jury has found the defendant guilty of malice, oppression, or fraud. If the trial subpoena does not provide evidence of financial condition, the request for punitive damages may not get to the jury. And you will have a difficult discussion with your client.
For the most part, trial lawyers are so focused on proving malice, oppression, or fraud in punitive damage cases, they overlook the need to prove the defendant's financial condition. The "financial condition" element may be the toughest punitive damage element to prove. In an obvious case where a jury is almost certainly going to find evidence of malice, oppression, or fraud, trial lawyers should make a motion for pretrial discovery pursuant to Civil Code section 3295(c). However, in typical cases, where liability for punitive damages is not as clear, a trial lawyer must make a difficult choice about whether to bring such a motion for pre-trial discovery or simply subpoena documents for trial, which may or may not establish financial condition. These are not easy decisions and the issue should be analyzed well before discovery is cut off.

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8-1901. Criminal penalties for violation of size and weight laws; exceptions. (a) It shall be unlawful for any person to drive or move or for the owner or lessee to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles of a size or weight exceeding the limitations stated in article 19 of chapter 8 of [the] Kansas Statutes Annotated or otherwise in violation of this article, and the maximum size and weight of vehicles herein specified shall be lawful throughout this state, and local authorities shall have no power or authority to alter such limitations except as express authority may be granted in this article.
(b) Any person violating any of the provisions of article 19 of chapter 8 of the Kansas Statutes Annotated, except for the provisions of K.S.A. 8-1908 and 8-1909, and amendments thereto, shall, upon conviction thereof, be fined in an amount not to exceed $500.
(c) Any person violating any of the provisions of K.S.A. 8-1908 or 8-1909, and amendments thereto, shall, upon a first conviction thereof, pay a fine from one, but not both of the schedules listed in subsection (c) of K.S.A. 8-2118, and amendments thereto.
(d) Except as otherwise specifically provided in this act, the provisions of article 19 of [the] chapter 8 of Kansas Statutes Annotated governing size, weight and load shall not apply to fire apparatus, road machinery, farm tractors or to implements of husbandry temporarily moved upon a highway, or to a vehicle operated under the terms of a currently valid special permit issued in accordance with K.S.A. 8-1911, and amendments thereto.
(e) Except on highways designated as part of the national system of interstate defense highways, the gross weight limitation prescribed by article 19 of [the] chapter 8 of Kansas Statutes Annotated on any axle or tandem, triple or quad axles shall not apply to: (1) Trucks specifically designed and equipped and used exclusively for garbage, refuse or solid waste disposal operations when loaded with garbage, refuse or waste; or (2) trucks mounted with a fertilizer spreader used or manufactured principally to spread animal dung, except that this paragraph (2) shall not apply to truck tractors so equipped. Except that such trucks under this subsection shall not exceed 60,000 pounds for three axles or 40,000 pounds for two axles, regardless of width spacing between axles.
(f) As used in this section, "conviction" means a final conviction without regard to whether sentence was suspended or probation granted after such conviction, and a forfeiture of bail, bond or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated, is equivalent to a conviction.
History: L. 1974, ch. 33, § 8-1901; L. 1980, ch. 44, § 1; L. 1981, ch. 46, § 1; L. 1986, ch. 43, § 1; L. 1994, ch. 235, § 4; L. 2004, ch. 114, § 3; L. 2012, ch. 26, § 1; July 1.

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UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF TEXAS et al.
 William S. Hastings, Dallas, TX, for Petitioner.
William R. Allensworth, Austin, TX, for Respondents.
Michael L. Sterling, Vandeventer Black LLP, Norfolk, VA, W. Scott Hastings, Counsel of Record, Thomas F. Loose, Christopher M. Boeck, Locke Lord LLP, Dallas, TX, for Petitioner.
William R. Allensworth, Counsel of Record, Chad B. Simon, Joe R. Basham, Allensworth & Porter, LLP, Austin, TX, for Respondent.
The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection clause. We reject petitioner's argument that such a clause may be enforced by a motion to dismiss under 28 U.S.C. § 1406(a) or Rule 12(b)(3) of the Federal Rules of Civil Procedure. Instead, a forum-selection clause may be enforced by a motion to transfer under § 1404(a) (2006 ed., Supp. V), which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." When a defendant files such a motion, we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. In the present case, both the District Court and the Court of Appeals misunderstood the standards to be applied in adjudicating a § 1404(a) motion in a case involving a forum-selection clause, and we therefore reverse the decision below.
Petitioner Atlantic Marine Construction Co., a Virginia corporation with its principal place of business in Virginia, entered into a contract with the United States Army Corps of Engineers to construct a child-development center at Fort Hood in the Western District of Texas. Atlantic Marine then entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on the project. This subcontract included a forum-selection clause, which stated that all disputes between the parties "`shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division.'" In re Atlantic Marine Constr. Co., 701 F.3d 736, 737-738 (C.A.5 2012).
 When a dispute about payment under the subcontract arose, however, J-Crew sued Atlantic Marine in the Western District of Texas, invoking that court's diversity jurisdiction. Atlantic Marine moved to dismiss the suit, arguing that the forum-selection clause rendered venue in the Western District of Texas "wrong" under § 1406(a) and "improper" under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under § 1404(a). J-Crew opposed these motions.
The District Court denied both motions. It first concluded that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum. The District Court then held that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under § 1404(a) and that the court would "consider a nonexhaustive and nonexclusive list of public and private interest factors," of which the "forum-selection clause [was] only one such factor." United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, at *5 (W.D.Tex., Apr. 6, 2012). Giving particular weight to its findings that "compulsory process will not be available for the majority of J-Crew's witnesses" and that there would be "significant expense for those willing witnesses," the District Court held that Atlantic Marine had failed to carry its burden of showing that transfer "would be in the interest of justice or increase the convenience to the parties and their witnesses." Id., at *7-*8; see also 701 F.3d, at 743.
Atlantic Marine petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the case under § 1406(a) or to transfer the case to the Eastern District of Virginia under § 1404(a). The Court of Appeals denied Atlantic Marine's petition because Atlantic Marine had not established a "`clear and indisputable'" right to relief. Id., at 738; see Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (mandamus "petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable" (internal quotation marks omitted; brackets in original)). Relying on Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), the Court of Appeals agreed with the District Court that § 1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum when venue is otherwise proper in the district where the case was brought. See 701 F.3d, at 739-741. The court stated, however, that if a forum-selection clause points to a nonfederal forum, dismissal under Rule 12(b)(3) would be the correct mechanism to enforce the clause because § 1404(a) by its terms does not permit transfer to any tribunal other than another federal court. Id., at 740. The Court of Appeals then concluded that the District Court had not clearly abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by § 1404(a). Id., at 741-743; see Cheney, supra, at 380, 124 S.Ct. 2576 (permitting mandamus relief to correct "a clear abuse of discretion" (internal quotation marks omitted)). That was so even though there was no dispute that the forum-selection clause was valid. See 701 F.3d, at 742; id., at 744 (concurring opinion).  We granted certiorari. 569 U.S. ___, 133 S.Ct. 1748, 185 L.Ed.2d 784 (2013).
Atlantic Marine contends that a party may enforce a forum-selection clause by seeking dismissal of the suit under § 1406(a) and Rule 12(b)(3). We disagree. Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is "wrong" or "improper." Whether venue is "wrong" or "improper" depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws, and those provisions say nothing about a forum-selection clause.
Section 1406(a) provides that "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Rule 12(b)(3) states that a party may move to dismiss a case for "improper venue." These provisions therefore authorize dismissal only when venue is "wrong" or "improper" in the forum in which it was brought.
This question — whether venue is "wrong" or "improper" — is generally governed by 28 U.S.C. § 1391 (2006 ed., Supp. V). That provision states that "[e]xcept as otherwise provided by law ... this section shall govern the venue of all civil actions brought in district courts of the United States." § 1391(a)(1) (emphasis added). It further provides that "[a] civil action may be brought in — (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." § 1391(b). When venue is challenged, the court must determine whether the case falls within one of the three categories set out in § 1391(b). If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under § 1406(a). Whether the parties entered into a contract containing a forum-selection clause has no bearing on whether a case falls into one of the categories of cases listed in § 1391(b). As a result, a case filed in a district that falls within § 1391 may not be dismissed under § 1406(a) or Rule 12(b)(3).
Petitioner's contrary view improperly conflates the special statutory term "venue" and the word "forum." It is certainly true that, in some contexts, the word "venue" is used synonymously with the term "forum," but § 1391 makes clear that venue in "all civil actions" must be determined in accordance with the criteria outlined in that section. That language cannot reasonably be read to allow judicial consideration of other, extrastatutory limitations on the forum in which a case may be brought.
 The structure of the federal venue provisions confirms that they alone define whether venue exists in a given forum. In particular, the venue statutes reflect Congress' intent that venue should always lie in some federal court whenever federal courts have personal jurisdiction over the defendant. The first two paragraphs of § 1391(b) define the preferred judicial districts for venue in a typical case, but the third paragraph provides a fallback option: If no other venue is proper, then venue will lie in "any judicial district in which any defendant is subject to the court's personal jurisdiction" (emphasis added). The statute thereby ensures that so long as a federal court has personal jurisdiction over the defendant, venue will always lie somewhere. As we have previously noted, "Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other." Smith v. United States, 507 U.S. 197, 203, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (internal quotation marks omitted). Yet petitioner's approach would mean that in some number of cases — those in which the forum-selection clause points to a state or foreign court — venue would not lie in any federal district. That would not comport with the statute's design, which contemplates that venue will always exist in some federal court.
The conclusion that venue is proper so long as the requirements of § 1391(b) are met, irrespective of any forum-selection clause, also follows from our prior decisions construing the federal venue statutes. In Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), we considered the meaning of § 1404(a), which authorizes a district court to "transfer any civil action to any other district or division where it might have been brought." The question in Van Dusen was whether § 1404(a) allows transfer to a district in which venue is proper under § 1391 but in which the case could not have been pursued in light of substantive state-law limitations on the suit. See id., at 614-615, 84 S.Ct. 805. In holding that transfer is permissible in that context, we construed the phrase "where it might have been brought" to refer to "the federal laws delimiting the districts in which such an action `may be brought,'" id., at 624, 84 S.Ct. 805, noting that "the phrase `may be brought' recurs at least 10 times" in §§ 1391-1406, id., at 622, 84 S.Ct. 805. We perceived "no valid reason for reading the words `where it might have been brought' to narrow the range of permissible federal forums beyond those permitted by federal venue statutes." Id., at 623, 84 S.Ct. 805.
As we noted in Van Dusen, § 1406(a) "shares the same statutory context" as § 1404(a) and "contain[s] a similar phrase." Id., at 621, n. 11, 84 S.Ct. 805. It instructs a court to transfer a case from the "wrong" district to a district "in which it could have been brought." The most reasonable interpretation of that provision is that a district cannot be "wrong" if it is one in which the case could have been brought under § 1391. Under the construction of the venue laws we adopted in Van Dusen, a "wrong" district is therefore a district other than "those districts in which Congress has provided by its venue statutes that the action `may be brought.'" Id., at 618, 84 S.Ct. 805 (emphasis added). If the federal venue statutes establish that suit may be brought in a particular district, a contractual bar cannot render venue in that district "wrong."
Our holding also finds support in Stewart, 487 U.S. 22, 108 S.Ct. 2239. As here, the parties in Stewart had included a forum-selection clause in the relevant contract, but the plaintiff filed suit in a different  federal district. The defendant had initially moved to transfer the case or, in the alternative, to dismiss for improper venue under § 1406(a), but by the time the case reached this Court, the defendant had abandoned its § 1406(a) argument and sought only transfer under § 1404(a). We rejected the plaintiff's argument that state law governs a motion to transfer venue pursuant to a forum-selection clause, concluding instead that "federal law, specifically 28 U.S.C. § 1404(a), governs the District Court's decision whether to give effect to the parties' forum-selection clause." Id., at 32, 108 S.Ct. 2239. We went on to explain that a "motion to transfer under § 1404(a) ... calls on the district court to weigh in the balance a number of case-specific factors" and that the "presence of a forum-selection clause... will be a significant factor that figures centrally in the district court's calculus." Id., at 29, 108 S.Ct. 2239.
The question whether venue in the original court was "wrong" under § 1406(a) was not before the Court, but we wrote in a footnote that "[t]he parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business in the Northern District of Alabama. See 28 U.S.C. § 1391(c) (venue proper in judicial district in which corporation is doing business)." Id., at 28, n. 8, 108 S.Ct. 2239. In other words, because § 1391 made venue proper, venue could not be "wrong" for purposes of § 1406(a). Though dictum, the Court's observation supports the holding we reach today. A contrary view would all but drain Stewart of any significance. If a forum-selection clause rendered venue in all other federal courts "wrong," a defendant could always obtain automatic dismissal or transfer under § 1406(a) and would not have any reason to resort to § 1404(a). Stewart's holding would be limited to the presumably rare case in which the defendant inexplicably fails to file a motion under § 1406(a) or Rule 12(b)(3).
Although a forum-selection clause does not render venue in a court "wrong" or "improper" within the meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under § 1404(a). That provision states that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Unlike § 1406(a), § 1404(a) does not condition transfer on the initial forum's being "wrong." And it permits transfer to any district where venue is also proper (i.e., "where [the case] might have been brought") or to any other district to which the parties have agreed by contract or stipulation.
Section 1404(a) therefore provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district. And for the reasons we address in Part III, infra, a proper application of § 1404(a) requires that a forum-selection clause be "given controlling weight in all but the most exceptional cases." Stewart, supra, at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring).
Atlantic Marine argues that § 1404(a) is not a suitable mechanism to enforce forum-selection clauses because that provision cannot provide for transfer when a forum-selection clause specifies a state or foreign tribunal, see Brief for Petitioner 18-19, and we agree with Atlantic Marine that the Court of Appeals failed to provide a sound answer to this problem. The  Court of Appeals opined that a forum-selection clause pointing to a nonfederal forum should be enforced through Rule 12(b)(3), which permits a party to move for dismissal of a case based on "improper venue." 701 F.3d, at 740. As Atlantic Marine persuasively argues, however, that conclusion cannot be reconciled with our construction of the term "improper venue" in § 1406 to refer only to a forum that does not satisfy federal venue laws. If venue is proper under federal venue rules, it does not matter for the purpose of Rule 12(b)(3) whether the forum-selection clause points to a federal or a nonfederal forum.
Instead, the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ("For the federal court system, Congress has codified the doctrine ..."); see also notes following § 1404 (Historical and Revision Notes) (Section 1404(a) "was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper"). For the remaining set of cases calling for a nonfederal forum, § 1404(a) has no application, but the residual doctrine of forum non conveniens "has continuing application in federal courts." Sinochem, 549 U.S., at 430, 127 S.Ct. 1184 (internal quotation marks and brackets omitted); see also ibid. (noting that federal courts invoke forum non conveniens "in cases where the alternative forum is abroad, and perhaps in rare instances where a state or territorial court serves litigational convenience best" (internal quotation marks and citation omitted)). And because both § 1404(a) and the forum non conveniens doctrine from which it derives entail the same balancing-of-interests standard, courts should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum. See Stewart, 487 U.S., at 37, 108 S.Ct. 2239 (SCALIA, J., dissenting) (Section 1404(a) "did not change `the relevant factors' which federal courts used to consider under the doctrine of forum non conveniens" (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955))).
An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule's application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that § 1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.
Although the Court of Appeals correctly identified § 1404(a) as the appropriate provision to enforce the forum-selection clause in this case, the Court of Appeals erred in failing to make the adjustments required in a § 1404(a) analysis when the transfer motion is premised on a forum-selection clause. When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied. And no such exceptional factors appear to be present in this case.
In the typical case not involving a forum-selection clause, a district court considering a § 1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations. Ordinarily, the district court would weigh the relevant factors and decide whether, on balance, a transfer would serve "the convenience of parties and witnesses" and otherwise promote "the interest of justice." § 1404(a).
The calculus changes, however, when the parties' contract contains a valid forum-selection clause, which "represents the parties' agreement as to the most proper forum." Stewart, 487 U.S., at 31, 108 S.Ct. 2239. The "enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system." Id., at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring). For that reason, and because the overarching consideration under § 1404(a) is whether a transfer would promote "the interest of justice," "a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases." Id., at 33, 108 S.Ct. 2239 (same). The presence of a valid forum-selection clause requires district courts to adjust their usual § 1404(a) analysis in three ways.
First, the plaintiff's choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Because plaintiffs are ordinarily allowed to select whatever forum they consider most advantageous (consistent with jurisdictional and venue limitations), we have termed their selection the "plaintiff's venue privilege." Van Dusen, 376 U.S., at 635, 84  S.Ct. 805. But when a plaintiff agrees by contract to bring suit only in a specified forum — presumably in exchange for other binding promises by the defendant — the plaintiff has effectively exercised its "venue privilege" before a dispute arises. Only that initial choice deserves deference, and the plaintiff must bear the burden of showing why the court should not transfer the case to the forum to which the parties agreed.
Second, a court evaluating a defendant's § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties' private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum. As we have explained in a different but "`instructive'" context, Stewart, supra, at 28, 108 S.Ct. 2239, "[w]hatever `inconvenience' [the parties] would suffer by being forced to litigate in the contractual forum as [they] agreed to do was clearly foreseeable at the time of contracting." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17-18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); see also Stewart, supra, at 33, 108 S.Ct. 2239 (KENNEDY, J., concurring) (stating that Bremen's "reasoning applies with much force to federal courts sitting in diversity").
As a consequence, a district court may consider arguments about public-interest factors only. See n. 6, supra. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Although it is "conceivable in a particular case" that the district court "would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause," Stewart, supra, at 30-31, 108 S.Ct. 2239, such cases will not be common.
Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue's choice-of-law rules — a factor that in some circumstances may affect public-interest considerations. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (listing a court's familiarity with the "law that must govern the action" as a potential factor). A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 494-496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). However, we previously identified an exception to that principle for § 1404(a) transfers, requiring that the state law applicable in the original court also apply in the transferee court. See Van Dusen, 376 U.S., at 639, 84 S.Ct. 805. We deemed that exception necessary to prevent "defendants, properly subjected to suit in the transferor State," from "invok[ing] § 1404(a) to gain the benefits of the laws of another jurisdiction...." Id., at 638, 84 S.Ct. 805; see Ferens v. John Deere Co., 494 U.S. 516, 522, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (extending the Van Dusen rule to § 1404(a) motions by plaintiffs).
 The policies motivating our exception to the Klaxon rule for § 1404(a) transfers, however, do not support an extension to cases where a defendant's motion is premised on enforcement of a valid forum-selection clause. See Ferens, supra, at 523, 110 S.Ct. 1274. To the contrary, those considerations lead us to reject the rule that the law of the court in which the plaintiff inappropriately filed suit should follow the case to the forum contractually selected by the parties. In Van Dusen, we were concerned that, through a § 1404(a) transfer, a defendant could "defeat the state-law advantages that might accrue from the exercise of [the plaintiff's] venue privilege." 376 U.S., at 635, 84 S.Ct. 805. But as discussed above, a plaintiff who files suit in violation of a forum-selection clause enjoys no such "privilege" with respect to its choice of forum, and therefore it is entitled to no concomitant "state-law advantages." Not only would it be inequitable to allow the plaintiff to fasten its choice of substantive law to the venue transfer, but it would also encourage gamesmanship. Because "§ 1404(a) should not create or multiply opportunities for forum shopping," Ferens, supra, at 523, 110 S.Ct. 1274, we will not apply the Van Dusen rule when a transfer stems from enforcement of a forum-selection clause: The court in the contractually selected venue should not apply the law of the transferor venue to which the parties waived their right.
When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties' settled expectations. A forum-selection clause, after all, may have figured centrally in the parties' negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place. In all but the most unusual cases, therefore, "the interest of justice" is served by holding parties to their bargain.
The District Court's application of § 1404(a) in this case did not comport with these principles. The District Court improperly placed the burden on Atlantic Marine to prove that transfer to the parties' contractually preselected forum was appropriate. As the party acting in violation of the forum-selection clause, J-Crew must bear the burden of showing that public-interest factors overwhelmingly disfavor a transfer.
The District Court also erred in giving weight to arguments about the parties' private interests, given that all private interests,  as expressed in the forum-selection clause, weigh in favor of the transfer. The District Court stated that the private-interest factors "militat[e] against a transfer to Virginia" because "compulsory process will not be available for the majority of J-Crew's witnesses" and there will be "significant expense for those willing witnesses." 2012 WL 8499879, at *6-*7; see 701 F.3d, at 743 (noting District Court's "concer[n] with J-Crew's ability to secure witnesses for trial"). But when J-Crew entered into a contract to litigate all disputes in Virginia, it knew that a distant forum might hinder its ability to call certain witnesses and might impose other burdens on its litigation efforts. It nevertheless promised to resolve its disputes in Virginia, and the District Court should not have given any weight to J-Crew's current claims of inconvenience.
The District Court also held that the public-interest factors weighed in favor of keeping the case in Texas because Texas contract law is more familiar to federal judges in Texas than to their federal colleagues in Virginia. That ruling, however, rested in part on the District Court's belief that the federal court sitting in Virginia would have been required to apply Texas' choice-of-law rules, which in this case pointed to Texas contract law. See 2012 WL 8499879, at *8 (citing Van Dusen, supra, at 639, 84 S.Ct. 805). But for the reasons we have explained, the transferee court would apply Virginia choice-of-law rules. It is true that even these Virginia rules may point to the contract law of Texas, as the State in which the contract was formed. But at minimum, the fact that the Virginia court will not be required to apply Texas choice-of-law rules reduces whatever weight the District Court might have given to the public-interest factor that looks to the familiarity of the transferee court with the applicable law. And, in any event, federal judges routinely apply the law of a State other than the State in which they sit. We are not aware of any exceptionally arcane features of Texas contract law that are likely to defy comprehension by a federal judge sitting in Virginia.
We reverse the judgment of the Court of Appeals for the Fifth Circuit. Although no public-interest factors that might support the denial of Atlantic Marine's motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question.
 Venue was otherwise proper in the Western District of Texas because the subcontract at issue in the suit was entered into and was to be performed in that district. See United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, at *5 (W.D.Tex., Apr. 6, 2012) (citing 28 U.S.C. § 1391(b)(2)).
 Section 1391 governs "venue generally," that is, in cases where a more specific venue provision does not apply. Cf., e.g., § 1400 (identifying proper venue for copyright and patent suits).
 Other provisions of § 1391 define the requirements for proper venue in particular circumstances.
 We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under § 1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke § 1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6).
 Our analysis presupposes a contractually valid forum-selection clause.
 Factors relating to the parties' private interests include "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (internal quotation marks omitted). Public-interest factors may include "the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law." Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs' choice of forum. See Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955).
 We note that this "privilege" exists within the confines of statutory limitations, and "[i]n most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial." Leroy v. Great Western United Corp., 443 U.S. 173, 183-184, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979).
 For the reasons detailed above, see Part II-B, supra, the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums. We have noted in contexts unrelated to forum-selection clauses that a defendant "invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff's chosen forum." Sinochem Int'l Co. v. Malaysia Int'l Shipping Co., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). That is because of the "hars[h] result" of that doctrine: Unlike a § 1404(a) motion, a successful motion under forum non conveniens requires dismissal of the case. Norwood, 349 U.S., at 32, 75 S.Ct. 544. That inconveniences plaintiffs in several respects and even "makes it possible for [plaintiffs] to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate." Id., at 31, 75 S.Ct. 544 (internal quotation marks omitted). Such caution is not warranted, however, when the plaintiff has violated a contractual obligation by filing suit in a forum other than the one specified in a valid forum-selection clause. In such a case, dismissal would work no injustice on the plaintiff.


According to § 22.1-254.1 B, any parent who complies with § 22.1-254.1 by filing a Notice of Intent or writing a letter to the division superintendent, must provide a description of curriculum to be followed for the coming year with their letter of intent.
Any parent who elects to provide home instruction in lieu of school attendance shall annually notify the division superintendent in August of his intention to so instruct the child and provide a description of the curriculum, limited to a list of subjects to be studied during the coming year, and evidence of having met one of the criteria for providing home instruction as required by subsection A. Effective July 1, 2000, parents electing to provide home instruction shall provide such annual notice no later than August 15.
Two bills, initiated by HEAV to clarify the meaning of a “description of the curriculum,” passed both the House and Senate and have been signed by Governor McDonnell. The new language, which took effect July 1, 2012, requires a parent to “provide a description of the curriculum, limited to a list of subjects to be studied during the coming year….” Superintendents may no longer require course descriptions, outlines, textbook titles, explanations of methods, tables of contents, or scope and sequences. This change will provide consistency in all school districts.
What is included in a “description of the curriculum”?
A curriculum description includes a list of all the subjects included in a plan of study. A curriculum is defined in the American Heritage Dictionary as a listing of “all the courses of study offered by an educational institution.” The Cambridge Advanced Learner’s Dictionary defines curriculum as “the group of subjects studied in a school, college, etc.
The description is now limited by law to a list of subjects to be studied during the coming year. Examples of subjects could include math, algebra, geometry, history, world history, American history, handwriting, science, biology, physics, language arts, grammar, composition, British literature, music, art, rhetoric, Latin, foreign language, macroeconomics, etc.
Are there certain subjects I am required to teach?
No, the law does not list the subjects that must be taught for each grade level. That decision is up to the parent. However, most parents teach the traditional subjects, i.e., language arts, math, science, history, etc. It’s important to teach what is appropriate for your child and to present it in a reasonable, understandable way. You do not want to raise questions that could lead to unnecessary problems.
What if I change my mind about the curriculum I plan to use?
If you have submitted a list of subjects to be studied along with the information on your Notice of Intent, you have properly notified the superintendent. The law does not require you to inform the superintendent’s office concerning any changes you make to your educational plan once the school year has begun.
Does my curriculum have to include the Standards of Learning (SOLs) for Virginia?
No, homeschoolers do not have to include the SOLs in their curriculum. Neither are homeschoolers required to take SOL tests. However, some parents may choose to refer to the SOLs to see what the SOLs include at a particular grade level.
Does the superintendent or his designee approve the curriculum?
The parent is required to supply a list of courses to be studied for the upcoming year. Neither the superintendent nor his designee is given the authority to “approve” or “disapprove” a parent’s curriculum choices. They do not have authority to take action concerning your curriculum, and they cannot make any judgments on the subjects you plan to teach, on the content of those subjects, or on the type of curriculum and instructional methods you choose to employ in teaching those subjects.
If I have religious exemption, should I submit a curriculum description?
No, parents who have religious exemption under §22.1-254 B do not have to comply with the requirements of the homeschool statute as listed in §22.1-254.1 B.
If I am a certified tutor, must I submit a curriculum description?
It depends on how you file to homeschool. If you comply with the homeschool statute §22.1-254.1 and check the second option on the Notice of Intent form, you must comply with all requirements of the homeschool statute, including providing a curriculum description. However, if you write a letter to your superintendent and clearly state that you are filing under the certified tutor statute as referenced in §22.1-254 A, you are NOT under any of the requirements of the homeschool statute. You are under another section of the law–the certified tutor law–not the homeschool law.
The information above should not be considered legal advice, but is for informational purposes only. For legal advice, please contact an attorney.